Archive in the Sky

In addition to the Freedom Trucks discussed yesterday, the federal government and its corporate donors are sending the Freedom Plane around the country bearing documents of national importance from the Founding period.

Those documents are listed on the plane’s own website. They are:

• William Stone’s 1823 engraving of the Declaration of Independence, which is both more common and more legible than the handwritten original. (This artifact is on loan from David M. Rubenstein, co-founder of the Carlyle Group and collector of historical documents, while all the others are originals from the U.S. National Archives.)
• The Continental Congress’s Articles of Association from 1774, laying out the Continental Association boycott of goods from Britain.
• Oaths of allegiance signed by George Washington, Alexander Hamilton, and Aaron Burr as Continental Army officers in 1778.
• The Treaty of Paris from 1783.
• A copy of the draft Constitution printed for delegates to the 1787 convention to debate and revise, this one with notes by David Brearley of New Jersey. 
• Chart of votes by states at that convention, including “The Constitution unanimously agreed to” (though Rhode Island didn’t send a delegation and New York’s was incomplete). 
• The Senate markup of the Bill of Rights in 1789, showing revisions of the language that came out of the House of Representatives. 

Legally the main omission is any form of the Articles of Confederation and Perpetual Union, which actually formed the United States of America into a single country. But we always overlook that. 

The plane’s itinerary is Kansas, Georgia, southern California, eastern Texas, Colorado, southern Florida, Michigan, and Washington. This national tour includes no stop in the Northeast.

“Touch-screen displays, Revolutionary War artifacts, and A.I. slop”

Among the Trump administration’s Sestercentennial initiatives are modern gladiatorial games outside the White House on the President’s birthday. Less decadently imperial are the Freedom Trucks mentioned yesterday.

These trucks were clearly inspired by the Freedom Train that traveled the country in 1947–49, giving citizens a look at 127 documents from the National Archives and other artifacts.

The most detailed list of those documents that I found is a Huntington Library catalogue description of “Heritage of Freedom,” the booklet given out to explain those items to visitors. The selection didn’t include the handwritten Declaration of Independence, Articles of Confederation, or Constitution, but it did have the Congress-approved Bill of Rights, George Washington’s copy of the printed Constitution, and various letters and pamphlets from the Founding era. The display went back as far as the Magna Carta and Christopher Columbus, and as recently as the surrender of Germany and Japan.

The 1940s Freedom Train previously inspired the American Freedom Train of the Bicentennial period, 1975–76. This one carried Washington’s copy of the Constitution again, the original Louisiana Purchase, and other documents, but also one of Judy Garland’s dresses from The Wizard of Oz, Martin Luther King Jr.’s pulpit, and a Moon rock. It was like a rolling Smithsonian.

What will be in the Freedom Trucks? The New York Times reported:

The truck exhibits were designed in collaboration with Hillsdale College, a conservative school in Michigan, and PragerU, a company that makes conservative educational materials. . . . The trucks prominently feature quotes from Mr. Trump and a video he filmed inside the Oval Office.

On 27 February, the New Yorker offered a story by Jessica Winter about PragerU’s projects:

Last year, PragerU unveiled the Founders Museum, a “partnership” with the White House and the U.S. Department of Education featuring A.I.-generated video testimonials from luminaries of the American Revolution. These include a digitized John Adams who ventriloquizes the words of the right-wing influencer Ben Shapiro, almost verbatim: “Facts do not care about our feelings.”

PragerU is also supplying the multimedia content for the Freedom Truck Mobile Museums, a travelling exhibition of touch-screen displays, Revolutionary War artifacts, and A.I. slop that will chug across the country on tractor-trailers throughout 2026, in celebration of the two-hundred-and-fiftieth anniversary of the Declaration of Independence. It seems that the battle over who defines good and evil—or, at least, over who defines American history—will be waged, in part, from the helm of an eighteen-wheeler. . . .

Prager’s nonprofit is just one of dozens of conservative organizations, many of them Christian, that are named as “partners” in the America 250 Civics Education Coalition, which is overseen by Linda McMahon, the Education Secretary. The coalition has the secular task of developing programming for America’s birthday, such as PragerU’s Founders Museum and the Freedom Trucks, the latter of which received a fourteen-million-dollar grant from the federal Institute of Museum and Library Services. (In March, President Trump signed executive orders to dismantle both the I.M.L.S. and the D.O.E.; they remain alive, albeit in shrunken, ideologized versions of their former selves.)

Other America 250 partners include both of the major pro-Trump think tanks (the America First Policy Institute and the Heritage Foundation), a Christian liberal-arts school (Hillsdale College), the Supreme Court’s favorite conservative-Christian legal-advocacy group (the Alliance Defending Freedom), the Christian-right-aligned church of Charlie Kirk (Turning Point USA), and something called Priests for Life.

Another notable detail from the New York Times: “Both institutions [Hillsdale and Prager U] said that they had not received any of the $10 million in taxpayer money and that they had funded their work with private donations.” That $10 million, you may remember from yesterday, was shifted by the White House from the Institute of Museum and Library Services to America250 and then to Freedom 250, ostensibly for these very trucks. What pocket is that money sitting in now?

TOMORROW: Up in the air.

“This rule narrows the concept of patriotism and patriotic education…”

Back in September, the U.S. Secretary of Education, former wrestling entertainment magnate Linda McMahon, announced that “Patriotic Education” would be a “supplemental priority” in the department’s grants.

The department’s press release defined that as “a civic education that teaches American history, values, and geography with an unbiased approach.”

However, the Federal Register’s proposed rule for this initiative, which carries more legal weight, offered a different definition of “Patriotic education”:

a presentation of the history of America grounded in an accurate, honest, unifying, inspiring, and ennobling characterization of the American founding and foundational principles; a clear examination of how the United States has admirably grown closer to its noble principles throughout its history; and the concept that commitment to America’s aspirations is beneficial and justified.

Words like “ennobling,” “admirably,” and “beneficial and justified” are obviously value judgments, contradicting the press release’s claim to seek “an unbiased approach.”

I believe the U.S. of A.’s founding principles are indeed inspiring and ennobling, and I wish the country had done and would do a better job of following those principles. It certainly hasn’t done so “throughout its history,” implying there have been no reverses. Not everyone shares my idea of those principles, furthermore.

The federal government invites citizens to comment on proposed rules. Many historical organizations spoke out about this one and urged their members to do so. I’ll quote the American Historical Association’s talking points because I think they’re sensible and well put.

Students deserve an honest and full account of US history. This funding priority promises to support the teaching of “accurate and honest” content. We consider this goal profoundly important, and this is why we are concerned about efforts to scrub historical content from federal websites, remove factual signage at historic sites, and attack curatorial decisions at Smithsonian museums, alleging that this history is insufficiently celebratory in its depiction of the United States. . . .

We do not need to think alike in order to find common purpose; the founders of the United States found common purpose amid multiple conflicts and divisions. The proposed Department of Education priority states that “a shared understanding of our political, economic, intellectual, and cultural history—including our national symbols and heroes” is a prerequisite for informed patriotism. The founding generation of the United States did not have a shared understanding of their history, their symbols, or their heroes; nor have subsequent generations. US patriotism is diverse and multifaceted and it is capacious enough to include even those who are critical and skeptical about patriotism.

The Department of Education’s rule asserts that there can only be one interpretation of an event, an assertion that runs contrary to the practice of history and the importance of allowing people to engage in civil deliberations. Disagreement also is a strength of our political system and not a flaw. The US Constitution’s First Amendment recognizes this when embracing freedom of assembly, petition, press, religion, and speech. . . .

This rule narrows the concept of patriotism and patriotic education, with a disproportionate focus on the Founding Era, a period when most Americans could not vote, when many were enslaved, and before the US Constitution explicitly embraced “equal protection.” American history does not stop in 1800, and it should be presented in a way that allows students to explore multiple periods, consider various perspectives, and draw their own informed conclusions. . . .

The commemoration of the 250th anniversary of American independence must provide opportunities for all Americans to learn from our shared history, one that includes recognition of the complex challenges, aspirations, and struggles across this history to enact a more perfect union.

The comment period has passed, though this federal website says citizens are still posting their responses. In fact, it looks like most comments have arrived this month. I don’t know when the department might issue a rule and apply it to educational grants.

The Sloppiness of the “God Bless the USA Bible”

The “God Bless the USA Bible” has been in the news a lot, most recently because of the revelation that all the books have been printed in China.

This Bible includes the King James Version of the English text, thus omitting the deuterocanonical books that appear in the Septuagint and in Roman Catholic Bibles.

On the other hand, this volume includes some texts that aren’t in any Christian canon, as its website boasts:

• Handwritten chorus to “God Bless The USA” by Lee Greenwood
• The US Constitution
• The Bill of Rights
• The Declaration of Independence
• The Pledge of Allegiance

At least, that’s what the publisher claims.

In fact, the volume doesn’t offer the entire U.S. Constitution. That document includes the Bill of Rights and all the other ratified amendments, which have the same constitutional weight as the text composed in Philadelphia in 1787.

This Bible leaves out every amendment after the first ten. Some people have suggested some nefarious intent in omitting the amendments on ending slavery, equality under the law, income tax, Presidential term limits, and the like. But the omission is just due to ignorance and carelessness.

We can see the same sloppiness in how this Bible presents the signatures at the bottom of the Declaration of Independence, as shown in this screenshot from a review video by Tim Wildsmith.

The right-hand column has two sections headlined “New Hampshire,” and there’s no section headlined “New York.” Instead, “New York” appears toward the bottom of the second column in the same style as the signers’ names.

Part of the blame for that mistake belongs to the signers themselves. Some of them sorted themselves out by state, but the New Englanders mixed together on the right, and the Delaware delegation didn’t succeed in separating from Pennsylvania in the middle. There are no state labels on the famous signed copy. Mary Katherine Goddard’s print shop added those for a 1777 broadside, and they appear (in different form) on the National Archives transcript.

Whoever was tasked with preparing this Bible, either in the U.S. of A. or in China, apparently downloaded text with the state labels but then didn’t format it properly.

Another of the news stories about this Bible is how Oklahoma’s school superintendent solicited bids for Bibles with “only the King James Version” but also “copies of The United States Pledge of Allegiance, The U.S. Declaration of Independence, The U.S. Constitution, and The U.S. Bill of Rights” (P.D.F. download). After criticism that that was an obvious ploy to send $3 million in public funds to the publisher of the “God Bless the USA Bible,” the state government amended its specifications.

Of course, the “God Bless the USA Bible” would not have met those specs if Oklahoma had strictly applied them since it includes only part of the U.S. Constitution.

Not to mention that this state government appears to be favoring one form of religion over others, in violation of one part of the Constitution the volume actually does contain.

Copy of the Proposed New Constitution for Sale in North Carolina

Document dealer Seth Kaller alerted me to an unusual artifact up for sale through Brunk Auctions on Saturday, 28 September.

At the end of the Constitutional Convention, that body sent its report to the Confederation Congress, then meeting in New York. That report took the form of the draft constitution.

The Congress accepted that report and had 100 copies printed on 28 Sept 1787. Charles Thomson, the Congress’s secretary, sent official copies to the states with the invitation to convene ratification conventions.

In North Carolina, Gov. Samuel Johnston presided over a convention in Hillsborough from 21 July to 4 August 1788. In the end they voted 184 to 84 to…reach no decision. The Anti-Federalist contingent insisted on a Bill of Rights, among other things. But they weren’t ready to reject the document outright.

All of the other states but Rhode Island did approve the new Constitution, however—some linking that approval to a Bill of Rights (saying “yes as long as…” rather than “no unless…”). The new federal government formed with only eleven states participating.

On 10 May 1789, Gov. Johnston and the North Carolina Council approved an address to George Washington, congratulating him on becoming President. That letter expressed hope that Congress would start the process of adding to the Constitution to “remove the apprehensions of many of the good Citizens of this State for those liberties for which they have fought and suffered in common with others.”

Washington was too ill to reply right away, but on 19 June he wrote back that he was “impressed with an idea that the Citizens of your State are sincerely attached to the Interest, the Prosperity and the Glory of America.”

In a letter to Rep. James Madison, Johnston responded, “Every one is very much pleased with the President’s answer to our Address. I have agreeably to your Wishes published them…” The exchange appeared in the State Gazette of North Carolina and in a broadside.

On 25 September, Congress approved twelve amendments to the Constitution. In November, North Carolinians gathered for another discussion of ratification, once again under Gov. Johnston. Public opinion had swung in favor of the new form of government, or at least not being left out of it. This time the vote was 194 to 77 for the Constitution.

Johnston then resigned as governor to become one of North Carolina’s first two U.S. Senators. On leaving Congress in 1793, he moved to another plantation, leaving his Hayes Farm in the hands of his son, James Cathcart Johnston. While having children with an emancipated mistress, Johnston never married, and in 1865 he bequeathed the property to his friend Edward Wood.

In recent years the Wood descendants started the process of turning that estate into a public historic site. In 2022, people cleaning the house looked through a file cabinet and found:

• A copy of the printed Constitution signed by Thomson and evidently sent to North Carolina. This is one of only seven such copies known and the only one in private hands. The last time a copy was sold was in 1891.
• A 1776 printing of the proposed Articles of Confederation.
• A printing of the proceedings of the Hillsborough Convention, the one that rejected the Constitution. 
• A copy of the broadside promulgating North Carolina’s letter to Washington and the new President’s reply.

I happen to be in Mecklenburg County, North Carolina, as I type this, so I could conceivably attend this auction on Saturday. But since I’m here for another event, and since the opening bid for the printed and signed Constitution is $1,000,000, I won’t be in the bidding.

“A country undergoing a severe case of ancestor worship”?

From Louis Menand’s essay “American Democracy Was Never Designed to Be Democratic” in the New Yorker:

You might think that the further we get from 1789 the easier it would be to adjust the constitutional rule book, but the opposite appears to be true. We live in a country undergoing a severe case of ancestor worship (a symptom of insecurity and fear of the future), which is exacerbated by an absurdly unworkable and manipulable doctrine called originalism. Something that Alexander Hamilton wrote in a newspaper column—the Federalist Papers are basically a collection of op-eds—is treated like a passage in the Talmud. If we could unpack it correctly, it would show us the way.

The Bill of Rights, without which the Constitution would probably not have been ratified, is essentially a deck of counter-majoritarian trump cards, a list, directed at the federal government, of thou-shalt-nots. Americans argue about how far those commandments reach. Is nude dancing covered under the First Amendment’s guarantee of the freedom of expression? (It is.) Does the Second Amendment prohibit a ban on assault weapons? (Right now, it’s anyone’s guess.) But no one proposes doing away with the first ten amendments. They underwrite a deeply rooted feature of American life, the “I have a right” syndrome. They may also make many policies that a majority of Americans say they favor, such as a ban on assault weapons, virtually impossible to enact because of an ambiguous sentence written in an era in which pretty much the only assault weapon widely available was a musket.

Some checks on direct democracy in the United States are structural. They are built into the system of government the Framers devised. One, obviously, is the Electoral College, which in two of the past six elections has chosen a President who did not win the popular vote. Even in 2020, when Joe Biden got seven million more votes than his opponent, he carried three states that he needed in order to win the Electoral College—Arizona, Georgia, and Pennsylvania—by a total of about a hundred thousand votes. Flip those states and we would have elected a man who lost the popular vote by 6.9 million. Is that what James Madison had in mind?

Another check on democracy is the Senate, an almost comically malapportioned body that gives Wyoming’s five hundred and eighty thousand residents the same voting power as California’s thirty-nine million. The District of Columbia, which has ninety thousand more residents than Wyoming and twenty-five thousand more than Vermont, has no senators. Until the Seventeenth Amendment was ratified, in 1913, senators were mostly not popularly elected. They were appointed by state legislatures.

Even though the Senate is split fifty-fifty, Democratic senators represent forty-two million more people than Republican senators do. As Eric Holder, the former Attorney General, points out in his book on the state of voting rights, “Our Unfinished March” (One World), the Senate is lopsided. Half the population today is represented by eighteen senators, the other half by eighty-two. The Senate also packs a parliamentary death ray, the filibuster, which would allow forty-one senators representing ten per cent of the public to block legislation supported by senators representing the other ninety per cent.

In addition to Holder’s book, Menand is responding to Nick Seabrook’s One Person, One Vote: A Surprising History of Gerrymandering in America and Jacob Grumbach’s Laboratories Against Democracy.

It makes sense to constitutionally insulate some political matters, such as those individual rights, off from democratic decision-making. It also makes sense to require representatives to win majorities (as opposed to pluralities), and possibly to require supermajorities for important issues.

But there’s no sound philosophical basis for a republic founded on the idea of natural rights and equality to allow numerical minorities to outvote majorities. History, not principle, tells us how those distortions came about, and history offers plenty of reasons to fix them.

Incidentally, Louis Menand’s mother, Catherine Menand, was Director of Archives and Records Preservation at the Massachusetts Supreme Judicial Court and a historical scholar who wrote about Justice John Ruddock, Samuel Adams, and other Revolutionary figures. It was a delight to know her.

The Juntocast Tackles the Bill of Rights

For folks interested in the recent postings on the genesis of the U.S. Bill of Rights, I recommend the latest podcast discussion from the Junto, released last weekend.

Ken Owen, Michael Hattem, and Roy Rogers discuss the development of those amendments to the Constitution and how their force has changed in American history.

One point they make well which I didn’t find an opening for was how much the Bill of Rights was a political football during the larger debate over the new, larger federal government:

• George Mason and Elbridge Gerry proposed adding one to the Constitution only in September 1787, at the end of a long summer of debate. By that time, it was pretty clear that neither of them was happy with the new national structure being proposed. And their colleagues at the convention might not have been too happy with them bringing up a new issue so late.
• The Constitution’s lack of a Bill of Rights was a cause that the disparate Anti-Federalists could agree on and use to bring others to their side. Otherwise, they had different and in some cases orthogonal reasons to oppose the new plan for government.
• For the Federalists, promising to add a (vaguely defined) Bill of Rights was an easy compromise that didn’t really affect the structure or size or the national government they wanted.
• When James Madison pushed a Bill of Rights in the first U.S. Congress, many Anti-Federalists opposed his bill because they didn’t think it went far enough. They feared (rightly) that the amendments would deflate their ongoing campaign to limit the federal structure. 
• The protections for individuals in the Bill of Rights were mainly symbolic for their first century or more anyway. States weren’t required to provide the same guarantees, and the federal government didn’t prosecute a lot of people (or quarter troops in homes outside of wartime).

The last point reminds me of how often people today will complain that a company is taking away their “First Amendment rights” of free expression, and then others will point out that the First Amendment applies to government, not private entities. From 1791 through at least 1900, the First Amendment didn’t apply to state or local governments, either. So unless your state’s constitution promised freedom of speech and freedom of the press, you didn’t have those rights.

The Long Process of Labeling the Bill of Rights

As I noted back here, James Madison used the label “bill of rights” for the first of his proposed amendments to the U.S. Constitution—a proposal that never got out of Congress.

He also proposed a bunch of limitations on the federal government that became the first ten Amendments to the Constitution, but he doesn’t seem to have considered those Amendments to comprise the United States’s own Bill of Rights.

Instead, Madison and his contemporaries continued to use the phrase “bill of rights” to refer to a general statement of the government’s powers and limitations. The one possible exception I’ve found in Founders Online is in a 1792 letter from Thomas Jefferson to George Washington. In one of those internecine squabbles that’s so much more entertaining on the Broadway stage than in your cabinet, Jefferson wrote to the President:

you will there see that my objection to the constitution was that it wanted a bill of rights securing freedom of religion, freedom of the press, freedom from standing armies trial by jury, & a constant Habeas corpus act. Colo. [Alexander] Hamilton’s was that it wanted a king and house of lords. the sense of America has approved my objection & added the bill of rights, not the king and lords.

Jefferson clearly saw the First Amendment as part of his desired “bill of rights.” Whether he thought of all ten Amendments under that label is unclear.

American legal authorities don’t seem to have publicly applied the label “Bill of Rights” to the Amendments for decades. In Barron v. the Mayor and City Council of Baltimore (1833), Chief Justice John Marshall delivered an opinion that Article 1, Section 9 of the Constitution “enumerated, in the nature of a bill of rights, the limitations intended to be imposed on the power of the general [i.e., federal] government…”

You remember the fundamentals laid out in Article 1, Section 9, right? Some are indeed important for individual rights, such as habeas corpus. But that section also protected the transatlantic slave trade until 1808 and tackled the burning issue of noble titles. It was a general list of limitations on Congress.

Incidentally, Marshall’s decision confirmed that those clauses and most other parts of the Constitution applied only to the federal government, not the states. So this decision seems, to modern eyes, to codify a sadly limited conception of a U.S. Bill of Rights.

That same year, however, Marblehead’s own Joseph Story (1779-1845, shown above), who was both an Associate Justice of the U.S. Supreme Court and professor of law at Harvard, started the process of applying the label of the Bill of Rights the way we do today. In his highly influential Commentaries on the Constitution of the United States (1833), Story began a discussion of the Amendments this way:

Let us now enter upon the consideration of the amendments, which, (it will be found,) principally regard subjects properly belonging to a bill of rights.

The next year, Story revised that book for use in classrooms as The Constitutional Class Book, and this time he wrote:

When the Constitution was before the People for adoption several of the State Conventions suggested amendments for the consideration of Congress, some of the most important of which were afterwards acted upon by that body at its first organization; and having been since ratified, are now incorporated into the Constitution. They are mainly clauses, in the nature of a Bill of Rights, which more effectually guard certain rights already provided for in the Constitution, or prohibit certain exercises of authority supposed to be dangerous to the public interests.

Finally, in 1840 Story revised his textbook again as A Familiar Exposition of the Constitution of the United States, including a rewrite of the above paragraph and following it with:

Before, however, proceeding to the consideration of them, it may be proper to say a few words, as to the origin and objects of the first ten amendments, which may be considered as a Bill of Rights, and were proposed by the first Congress, and were immediately adopted by the people of the United States.

Thus, over the course of seven years Justice Story went from saying that the first ten Amendments covered what a bill of rights should to saying that we might as well think of them as a Bill of Rights (with capital letters).

According to legal historian Akil Reed Amar, Story’s label remained unofficial and qualified until well past the U.S. Civil War. Rep. John Bingham of Ohio tried to write the Fourteenth Amendment so that it applied the federal “Bill of Rights” to the states. The Supreme Court resisted both the doctrine and the phrasing for decades. Finally, a 1900 dissent by Justice John Marshall Harlan retroactively declared that “These [first ten] amendments have ever since [ratification] been regarded as the National Bill of Rights.”

Just a Few Revisions Here and There

The Amendments to the U.S. Constitution that we think of as the Bill of Rights are rooted mostly in James Madison’s fourth and fifth proposed amendments from June 1789:

Fourthly,
That in article 2st, section 9, between clauses 3 and 4, be inserted these clauses, to wit, The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience by in any manner, or on any pretext infringed.

The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments; and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable.

The people shall not be restrained from peaceably assembling and consulting for their common good, nor from applying to the legislature by petitions, or remonstrances for redress of their grievances.

The right of the people to keep and bear arms shall not be infringed; a well armed, and well regulated militia being the best security of a free country: but no person religiously scrupulous of bearing arms, shall be compelled to render military service in person.

No soldier shall in time of peace be quartered in any house without the consent of the owner; nor at any time, but in a manner warranted by law.

No person shall be subject, except in cases of impeachment, to more than one punishment, or one trial for the same office; nor shall be compelled to be a witness against himself; nor be deprived of life, liberty, or property without due process of law; nor be obliged to relinquish his property, where it may be necessary for public use, without a just compensation.

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

The rights of the people to be secured in their persons, their houses, their papers, and their other property from all unreasonable searches and seizures, shall not be violated by warrants issued without probable cause, supported by oath or affirmation, or not particularly describing the places to be searched, or the persons or things to be seized.

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, to be informed of the cause and nature of the accusation, to be confronted with his accusers, and the witnesses against him; to have a compulsory process for obtaining witnesses in his favor; and to have the assistance of counsel for his defense.

The exceptions here or elsewhere in the constitution, made in favor of particular rights, shall not be so construed as to diminish the just importance of other rights retained by the people; or as to enlarge the powers delegated by the constitution; but either as actual limitations of such powers, or as inserted merely for greater caution.

Fifthly.
That in article 2st, section 10, between clauses 1 and 2, be inserted this clause, to wit:
No state shall violate the equal rights of conscience, or the freedom of the press, or the trial by jury in criminal cases.

I’m being anachronistic by including Madison’s fifth point because the Senate decided that the federal Constitution should not limit state governments in those ways and therefore omitted that proposal. It took Supreme Court decisions in the early twentieth century to apply the U.S. Bill of Rights to state and local governments. Now we take that for granted.

Lastly, the Tenth Amendment derives from Madison’s eighth, the part that said: “The powers not delegated by this constitution, nor prohibited by it to the states, are reserved to the States respectively.”

Teaching American History has a chart of which of Madison’s proposals fell away as Congress and the states considered them. Of the twelve proposed amendments to come out of that process, ten were approved by 1791 and one more in 1992.

The House rejected Madison’s idea to revise the Constitution’s text itself in favor of tacking all the amendments on at the end. The Congress also made a lot of changes to Madison’s language, mostly shortening it (perhaps at a cost to precision). As a result, the first ten Amendments don’t have a single author; they were a collective creation.

TOMORROW: If Madison didn’t call those Amendments our Bill of Rights, who did?

James Madison’s Bill of Rights

On 8 June 1789 James Madison arose in the U.S. House of Representatives and stated that the time had come to discuss amending the Constitution that had created that legislative body. After all, it had been meeting for two months already.

There was immediately a long debate on whether the House should go into a committee of the whole to keep its discussions private, and how such amendments would work, and so on. Ten whole pages of the House record later, Madison finally got to propose his amendments.

And they started out this way:

First.
That there be prefixed to the constitution a declaration—That all power is orginally vested in, and consequently derived from the people.

That government is instituted, and ought to be exercised for the benefit of the people; which consists in the enjoyment of life and liberty, with the right of acquiring and using property, and generally of pursuing and obtaining happiness and safety.

That the people have an indubitable, unalienable, and indefeasible right to reform or change their government, whenever it be found adverse or inadequate to the purposes of its institution.

Madison later said, “The first of these amendments, relates to what may be called a bill of rights…” So there we have it: Madison’s proposal for a Bill of Rights, derived mainly from George Mason.

That language looks nothing like what we know as the Bill of Rights. Even the ideas that the two texts express are quite different. (When we look for an official expression of the rights of “life and liberty” and the people’s power to “change their government,” we go back further to the Declaration of Independence.)

Obviously, when Madison thought of a Bill of Rights, he thought of a law expressing the fundamental relationship between people and government, not an enumeration of specific rights or legal protocols.

TOMORROW: So where did the U.S. Bill of Rights come from?

Robert Whitehill and the Campaign for a Bill of Rights

Robert Whitehill (1738-1813) was a farmer and politician from central Pennsylvania. He was in the group of democrats who created the state’s 1776 constitution, which started with a Declaration of Rights.

When Pennsylvania held a convention to decide whether to ratify the new U.S. Constitution of 1787, Whitehill opposed it, not wanting a stronger national government. He cited the lack of a Declaration or Bill of Rights on the federal level as a reason to vote against the new document, reading a petition from his home county specifying such rights. (He apparently wrote the petition.)

The Pennsylvanian convention’s delegates disagreed with Whitehill’s position, and some felt he was out of line suggesting such changes. The state approved the Constitution on 12 Dec 1787, delegates voting 46-23. Though that was a big majority, the votes in Delaware and New Jersey that same month were unanimous in favor of the new document, so that was the biggest opposition so far outside of Rhode Island.

Whitehill and twenty of his colleagues then issued a minority report and dissent, putting that petition into print. By that time, George Mason’s objections to the Constitution were already in print, and newspapers were publishing many essays about the issue.

The ratification process continued to roll through the U.S. until a close vote in the Massachusetts ratifying convention: 187-168. That vote was the result of a compromise allowing the dissenters to specify amendments they wanted to see. The Massachusetts objections said little about individual rights and were therefore not based on Whitehill’s or Mason’s main arguments.

When New Hampshire ratified the Constitution in June, nine of the thirteen states had assented to it. Under the rules the Constitutional Convention had stated and the Continental Congress approved, that meant the document was officially accepted. However, it got a big boost when Virginia, the biggest state, approved later in June with its own list of recommended amendments.

At that point, Whitehill realized that the Constitution would take effect. But he, and other opponents, still wanted to see a Declaration of Rights. So Whitehill and other dissenters in Cumberland County, Pennsylvania, gathered at James Bell’s tavern in what’s now Silver Spring Township.

They drafted this circular letter to like-minded men in other counties:

East Pennsborough, Cumberland, July 3, 1788.

SIR:

That ten states have already unexpectedly, without amending, ratified the constitution proposed for the government of these United States, cannot have escaped the notice of the friends of liberty. That the way is prepared for the full organization of the government, with all its foreseen and consequent dangers, is too evident, and unless prudent steps be taken to combine the friends to amendments in some plan in which they may confidently draw together, and exert their power in unison, the liberty of the American citizens must lie at the discretion of Congress, and most probably posterity become slaves to the officers of government.

The means adopted and proposed by a meeting of delegates from the townships of this county for preventing the alleged evils, and also the calamities of a civil war, are, as may be observed in perusing the proceedings of the said meeting herewith transmitted, to request such persons as shall be judged fit within the counties, respectively, to use their influence to obtain a meeting of delegates from each township, to take into consideration the necessity of amending the constitution of these United States, and for that purpose to nominate and appoint a number of delegates to represent the county in a general conference of the counties of this commonwealth, to be held at Harrisburg on the third day of September next, then and there to devise such amendments, and such mode of obtaining them, as in the wisdom of the delegates shall be judged most satisfactory and expedient.

A law will, no doubt, be soon enacted by the General Assembly for electing eight members to represent this state in the new Congress. It will, therefore, be expedient to have proper persons put in nomination by the delegates in conference, being the most likely method of directing the voices of the electors to the same object and of obtaining the desired end.

The society, of which you are chairman, is requested to call a meeting agreeable to the foregoing designs, and lay before the delegates the proceedings of this county, to the intent that the state may unite in casting off the yoke of slavery, and once more establish union and liberty.

By order of the meeting, I am with real esteem, sir,
Your most obedient servant,

BENJAMIN BLYTH, Chairman.

The letter didn’t mention a “Bill of Rights,” but that was the biggest change its authors wanted.

And that letter provides what significance in political history that partially demolished stone building beside the Harrisburg Pike has. It was where the men of Cumberland County called for a larger meeting of Pennsylvanians to organize a campaign for constitutional amendments and likeminded U.S. Congress candidates.

With Whitehill’s own estate gone (though noted with a historical marker), I think we can definitely say that the James Bell Tavern is the most important site in the campaign for the U.S. Bill of Rights in Cumberland County, Pennsylvania. Whether it’s the most important such site in Pennsylvania as a whole is another question. And on a national scale it’s just one of many places where people advocated for changes to the U.S. Constitution. The push for what became our Bill of Rights was a mass political movement, not the product of any single man or event.

It’s sometimes said (by Pennsylvanian authors) that James Madison drew on Whitehill’s writing when he proposed the Bill of Rights in the Congress in late 1789. However, his language came mostly from the Virginian convention, and it was influenced most by a fellow Virginian, George Mason.

TOMORROW: And what happened to that language, anyway?

The Father of the Bill of Rights

If we Google “Father of the Bill of Rights,” the name that pops up more than any other is George Mason of Virginia.

It’s true that ExplorePAHistory says of Robert Whitehill, “it is not too much of an exaggeration to call him the father of the Bill of Rights.” That formulation reminds me of Boston Globe columnist Alex Beam’s argument that the basic meaning of the word “arguably” is “even I don’t really believe this.” It’s no surprise that Whitehill, like that website, was Pennsylvanian.

Mason is often credited as “Father of the [U.S.] Bill of Rights” because he:

• drafted one of its major precedents, the Virginia Declaration of Rights of 1776.
• advocated adding clauses on individual and state rights to the Constitution during the drafting convention on 12 Sept 1787. (Massachusetts’s Elbridge Gerry proposed such a declaration and Mason seconded it.)
• refused to sign the final document after that proposal lost by a whopping 10-0. (Gerry refused, too, as did Luther Martin of Maryland.)
• published a pamphlet about how a Declaration of Rights should be part of the Constitution.
• proposed calling for a Declaration of Rights at the Virginia ratifying convention.
• sent those clauses to John Lamb in New York for that state’s convention.
• somehow also provided the model for the proposals from North Carolina and Rhode Island, too.
• was the author James Madison drew on when he made a formal proposal of amendments in the U.S. Congress on 8 June 1789.

All of which adds up to a mighty strong claim that Mason was the individual most responsible for those proposals.

TOMORROW: So what did Robert Whitehill do? And what does that have to do with that partly demolished tavern in central Pennsylvania?

Birthplaces of the Bill of Rights

Where was the Bill of Rights born?

In Parliament in 1689, as a codification of the Glorious Revolution that deposed King James II and brought his daughter Mary and her husband, Prince William of Orange, to the throne of England, Wales, and Scotland.

Here’s the text of that bill from the Avalon Project at Yale Law School. It’s official title was “An Act Declaring the Rights and Liberties of the Subject and Settling the Succession of the Crown.”

A little over a century passed between that law and the Amendments to the U.S. Constitution that we Americans call the Bill of Rights, but it’s clearly the inspiration. Look, for instance, at this clause in the English law:

excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted;

And Amendment VIII:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

When British-Americans of the late eighteenth century talked about the Bill of Rights, this is the document they had in mind. We Americans like to believe we invented everything, but in this case we inherited the concept and the terminology from Britain.

So where was the American Bill of Rights born?

In the various state conventions that wrote new constitutions for the states as they broke away from Britain and afterward. For example:

• The Virginia Declaration of Rights in 1776.
• The Declaration of the Rights of the Inhabitants of Vermont in 1777.
• Later articles of the Constitution of Georgia in 1777.
• Part I of the 1780 Constitution of Massachusetts, drafted by John Adams (with the exception of article 3).

When Americans considered strengthening the national government in 1787, one common concern was what that might mean to the rights that their state constitutions had guaranteed.

TOMORROW: “Father of the Bill of Rights”?

Preserving the Truth about the James Bell Tavern

I’ve seen a lot of news stories about the interrupted demolition of a stone building on the Harrisburg Pike in Silver Spring Township, Pennsylvania.

Most recently this building was Stone House Autos, and before that it was Stone House Computers, but back in the 1780s it was a tavern run by a man named James Bell.

Historical preservationists got upset enough about this demolition that the owner stopped the process partway through. That might give the owners and locals a chance to consider their options.

Unfortunately, the story that’s being spread around the web has a lot of overstatements. The latest version appeared on the Daily Mail website, and it’s riddled full of errors. The building was not called the City Tavern. The demolition was not done “accidentally” or by mistake, but with a permit and plans. And then there’s this sentence:

It was in this cozy watering hole built in 1780 that Adams, Washington et al had seminal discussions before finally drawing up the Bill of Rights.

“Adams, Washington et al” were never at James Bell’s tavern, and they weren’t the authors or proponents of the Bill of Rights. There’s no value in preserving a historic building if we’re just going to tell lies about its history.

These reports from Pennlive and the Cumberland Sentinel are better grounded. They make clear that local authorities chose not to protect the stone building in the 1990s. They didn’t follow through on seeking a listing on the National Register of Historic Places. They didn’t list the site as one that needed protection under the local zoning ordinance. So if there was a mistake involved in this demolition, it was a mistake in judgment over twenty years ago.

Now what about the building might qualify it for listing as historically significant? Pennlive’s version:

It was at the tavern on July 3, 1788, with pending ratification of the new federal constitution at hand, that a band of Cumberland Countians led by Robert Whitehill, Benjamin Blythe and others declared the need for changes in the document before they could accept it.

And the local Cumberland Sentinel’s:

According to meeting minutes obtained by Musser, the 1788 Stony Ridge Convention held at the former James Bell Tavern was attended by Benjamin Blythe, one of Shippensburg’s first settlers, and Robert Whitehill of Cumberland County. Whitehill is noted as the “Father of the Bill of Rights,” according to ExplorePAHistory.com, with its conception reportedly happening at that meeting at the Bell Tavern.

Some news stories have therefore called that tavern the “Birthplace of the Bill of Rights.”

That’s not a label with a lot of history. Which is to say, I can’t find a single source that applies that phrase to this stone building before the last two months. The usual claimant to the “Birthplace of the Bill of Rights” is the church in Eastchester, New York, where a local election in 1733 got reported by John Peter Zenger in a way that led to a court case strengthening freedom of the press. That’s just one right, so I don’t think that site has a strong claim to the label, either.

TOMORROW: So where was the Bill of Rights born?

Proposal for a Bill of Attainder with Corruption of Blood

I had reason this week to look up information about Sen. Tom Cotton of Arkansas (shown here), and I found this curious line on Wikipedia:

Corruption of Blood

In 2013 Cotton introduced legislative language to overturn the United States Constitution prohibition of attainder.

The citation for that statement led to a Huffington Post article. With further searching, I found the transcript of a markup session of the House Foreign Affairs Committee on 22 May 2013 (preserved in this very large P.D.F. file). The discussion turned out to reveal both less and more than the line on Wikipedia suggests.

In that session, House members were hammering out details of a law to impose sanctions on government officials in Iran. Cotton, then in the House, had proposed amending the bill to extend those travel and financial restrictions from officials “responsible for Human Rights violations, for engaging in censorship or otherwise diverting goods designated for common Iranian people” to “any family member of such official (to include a spouse and any relative to the third degree of consanguinity).”

Cotton’s point was to prevent such people from protecting their money by transferring it to relatives. The relatives affected by the law would include, he stated, “parents, children, aunts, uncles, nephews, nieces, grandparents, great-grandparents, grandkids, great-grandkids.”

But how would the U.S. government know that any property held by such potentially far-flung people had come from an Iranian government official? Cotton said that didn’t matter: “There would be no investigation. If the prime malefactor of the family is identified as on the list for sanctions, then everyone within their family would automatically come within the sanctions regime, as well.”

And that’s where the constitutional questions arose. Rep. Alan Grayson, one of the House’s boldest voices on the left, objected to the amendment on the grounds it would “allow the sins of the uncles to descend on the nephews.” He noted that its confiscations, fines, and other penalties would violate our Constitution in multiple ways. The particulars:

• Article One, Section 9: “No Bill of Attainder…shall be passed.” A “bill of attainder” was a British term for a law deeming someone guilty without benefit of a trial. (Section 10 forbade the states from passing such laws as well, so the Founders really didn’t like them.)
• Article Three, Section 3: “no Attainder of Treason shall work Corruption of Blood.” The old phrase “Corruption of Blood” referred to punishing relatives of a person convicted of a heinous crime simply because they were related. Even for treason, the Founders didn’t want the U.S. government to go after “grandparents, great-grandparents, grandkids, great-grandkids,” and so on.
• Amendment Five: “No person shall be…deprived of life, liberty, or property, without due process of law.” Again, since the passage of the Bill of Rights, Congress can’t simply confiscate property from people “automatically” with “no investigation” and no judicial process, as Rep. Cotton wanted.

Grayson later added that the law would also violate the Eighth Amendment against “cruel and unusual punishments,” though that’s not so specific.

Cotton’s first response to Grayson’s objections was, “Iranian citizens do not have constitutional rights under the United States Constitution.” As Grayson replied, his colleague was “completely and utterly mistaken” on that point. The Fifth Amendment and other parts of the Constitution specify that they apply to any “person,” not just citizens. The lines prohibiting bills of attainder and corruption of blood say nothing about citizens only—they just prohibit such laws. There are decades of case law backing that up, which Cotton, as a lawyer, should have known.

That discussion ended with Cotton withdrawing his amendment under pressure from Grayson. It seems clear to me that Cotton didn’t knowingly try to “overturn the United States Constitution prohibition of attainder,” as the line on Wikipedia said. Rather, Cotton ignorantly tried to get around the Constitution because he thought punishing Iranian officials was really, really important. That would not be the last time Iran policy would lead him into breaking long-established American precedents.

Cotton’s claim about rights being restricted to citizens raises bigger questions. Obviously such rights as being able to vote in U.S. elections are exclusive to U.S. citizens. But the Founders and subsequent American leaders viewed more fundamental freedoms through a “natural rights” philosophy, or as what today we call “human rights.” (Cotton himself used that phrase, as quoted above.) We all deserve those rights simply because we’re alive.

So do Cotton and others who adopt his position actually believe in human or natural rights as the Founders described? Do they truly believe those rights are endowed by a creator? If so, how can they deny those rights to most of the human population simply because those people were born citizens of other countries?

The “5-Page Topic Outline” and the “98-Page Framework”

One of the common complaints about the new Advanced Placement U.S. History Course guidelines is that they’re so much longer than they were before. For instance, World Magazine reported:

The new framework is 98 pages long, compared to the five-page topic outline teachers used previously, [critic Larry] Krieger said.

That criticism from Krieger, founder of Insider Test Prep (shown here), has been echoed on a lot of websites; just look for the phrase “five-page [or 5-page] topic outline” and the mention of “98 pages.”

That struck me as another claim about the College Board’s new course guidelines (P.D.F. download) that could be objectively tested. So I looked for the older guidelines, and found a set labeled for May 2006 and May 2007 (P.D.F. download). And I looked at them side by side. Does that comparison hold up as accurate and fair? Not really.

To start with, I can’t figure out why Krieger describes “the new framework” as “98 pages long.” The entire booklet is 142 pages, including title page, contents, index, and those pages paradoxically printed “This Page Is Intentionally Left Blank.” The Framework starts on page 9. Ninety-eight pages later takes us to page 106, which is in the middle of the sample questions. The page header “The AP U.S. History Curriculum Framework” continues until page 119. So that actually looks like 111 pages of Framework material, not including the index for it.

The pages under the “AP U.S. History Curriculum Framework” header include sections titled “Introduction,” “Historical Thinking Skills,” “Thematic Learning Objectives,” “The Concept Outline,” “The AP U.S. History Exam,” and “Sample Exam Questions.” So if we want to fairly compare the Framework’s length to the older version, we have to include all the equivalent sections in the older booklet.

Turning to that older booklet, I find that the “five-page Topic Outline” actually takes up five and half pages, so that count is off by 10%. Furthermore, that “Topic Outline” looks like the equivalent of the “Concept Outline” section in the new booklet—i.e., just one of the relevant sections. The earlier booklet also contains sections titled “Introduction,” “The AP U.S. History Exam,” “Themes in AP U.S. History,” another page about teaching the course, and “The Exam” with sample questions. Those total to 33 pages.

Obviously the expansion of 33 pages into 111 is significant—the new guidelines are more than three times as long as the old ones. But Krieger and everyone parroting his figures (without apparently checking them) have transformed that into an explosion from 5 pages to 98—more than nineteen times longer! That doesn’t show a great concern for accuracy or fairness.

Turning from quantity to quality, the older booklet’s “Themes in AP U.S. History” simply lists topics. Here’s one section as an example:

4. The American Revolutionary Era
The French and Indian War
The Imperial Crisis and resistance to Britain
The War for Independence
State constitutions and the Articles of Confederation
The federal Constitution

There’s no exact equivalent to that section in the new guidelines, but to show how they treat some of the same ideas, here’s Key Concept 3.2.II on the transition from the Articles of Confederation to the new Constitution.

Obviously, the new treatment has a lot more words. It’s not just a short list of concepts and buzzwords, but a series of complete sentences connecting those concepts. And it offers more concepts to consider, as well as possible examples for discussion.

In fact, if one were interested in educating young people about the historical transition from the Articles to the Constitution, one might even say the information in the new guidelines is important, pertinent, and useful.

But apparently it’s too long.

TOMORROW: The missing names.

The Second Amendment’s Historic Moment

In considering the Second Amendment, I think it’s valuable to recognize the unusual historical moment in which it was enacted.

Whig political philosophy had long warned against a large “standing army”—i.e., the sort of military we now have—as likely to oppress people’s natural rights during peacetime. The Whig view of the world saw a broad-based militia–something we don’t have now—as the obviously superior alternative.

At the end of the Revolutionary War, it looked possible for the U.S. of A. to achieve that Whiggish vision. Spain and France were allies, and Britain had agreed to peace terms. Spurred by a lousy economy, the Congress disbanded its Continental Navy and sold off all its ships.

On 2 June 1784, the Congress also ordered the Continental Army to disband, stating (in language proposed by Elbridge Gerry) that:

standing armies in time of peace are inconsistent with the principles of republican government, dangerous to the liberties of a free people, and generally converted into destructive engines for establishing despotism.

The next day, it established a single federal regiment consisting of “eight companies of infantry, and two of artillery,” under a lieutenant colonel. That was the entire military strength of the government of the U.S. of A. in the late 1780s.

The Constitutional Convention wrote a document to strengthen the central government, and state ratifying conventions responded with Whiggish warnings. Look at the clauses against standing armies in Virginia’s ratification, for example. And that’s when a national army barely existed. When Congress drafted the Second Amendment in 1789, the country truly was depending on “a well-regulated militia” for its defense and was confident that was almost all it needed.

But the country also wanted land. Americans moving west quickly came into conflict with the Native nations allied as the Western Confederacy. The U.S. regiment and hundreds of local militia moved against those communities, but in a series of fights in October 1790 that American army was soundly defeated.

The Congress was still committed to the idea of a small standing army, authorizing a second federal regiment but only at low pay and only for six months. Once again American regulars moved west, along with a larger militia force. And on 4 Nov 1791 they were wiped out. Out of about 1,000 fighting men, nearly 900 were killed, wounded, or captured. One-quarter of the small U.S. Army was gone overnight.

President George Washington was already skeptical about militia systems. During the Revolutionary War he had argued long and hard for a stronger federal army and longer enlistment periods—i.e., a standing army. In 1792 the Congress started to expand the U.S. Army and also passed laws exercising more control over the state militias. America’s full Whiggish experiment was over. But the Second Amendment (and the rest of the original Constitution and Bill of Rights) are products of that brief period.

[The image above appears in George Ironstrack’s recent essay on the 4 Nov 1791 battle from the Myaamia (Miami) perspective.]

William Hogeland on the Second Amendment

With the American public once again focused for a time on how our policies enable crazy men to easily obtain guns, William Hogeland, author of The Whiskey Rebellion: George Washington, Alexander Hamilton, and the Frontier Rebels Who Challenged America’s Newfound Sovereignty, wrote a thought-provoking editorial for Alternet arguing that debates over the U.S. Constitution’s Second Amendment are bound to end in a muddle:

The realpolitik in which the Second Amendment was framed, during the first U.S. Congress of 1789, involves some unedifying but illuminating features. The amendment was a response to the federal government's power over state and local militias, as set out in Article I, Section 8, of the Constitution. That provision had been among the most hard-fought at the Constitutional Convention of 1787. Delegates committed to state sovereignty feared—rightly enough—that if the federal government were empowered to control the state militias, states would lose sovereignty.

In that elemental debate lay the beginning of a perennial American disingenuousness regarding arms and rights. Delegates led by James Madison wanted to create a national government, directly acting on and protecting all citizens, throughout all states. To achieve it, they had to play down how entirely they wanted it, how nearly utter the states’ loss of power would be. Madison’s convention notes show Madison himself, along with other nationalists, minimizing the impact of the federal militia power in order to soothe certain delegates’ fears of losing state sovereignty.

As we know, the nationalists got what they wanted. Despite concessions to their opponents’ ideas about state sovereignty, we became a nation. And critical to that achievement was the constitutional provision giving the federal government control of states’ military institutions.

So when amending the Constitution, Madison continued to prevaricate. Former antifederalists in Congress and the state legislatures still resented the federal power to control militias; they were hoping to use the amendment process to regain some military control and thus retain some sovereignty. In the Second Amendment, Madison tried to defeat those hopes by placating them without really addressing them. The amendment gestures vaguely at state sovereignty in a way intended to make little practical sense. . . .

We argue fiercely today about the intended relationship between the famous opening phrase (“A well regulated militia, being necessary to the security of a free state,”) and the famous main clause (“the right of the people to keep and bear arms, shall not be infringed”). But it’s fruitless to try to nail down that relationship, to hope to prove for good and all that the opening phrase is or is not a preamble, or that a preamble does or does not determine the meaning of a main text, or that a “being” phrase means something different from or identical to a “whereas” clause.

The sentence is weak. The weakness is deliberate.

Madison was, after all, one of the republic’s smartest politicians. He steered the amendment-writing process as much as he could so the results didn’t impede too greatly on his vision for the federal government at that time. It’s striking how little resemblance there is between the amendments proposed by state ratifying conventions in 1787-88 and those that came out of the first federal Congress. (Here, for instance, are the assurances New York wanted.)

TOMORROW: The Second Amendment’s historic moment.

The Real Lessons of the Three-Fifths Compromise

American historians’ Twitter feeds lit up yesterday with links and responses to an essay from James Wagner, the president of Emory University, extolling the value of compromise. Though the essay started talking about national politics, by the end it was clear that Wagner was also addressing the opposition to his program to change the university.

But what really raised eyebrows was the example of compromise Wagner chose to praise:

One instance of constitutional compromise was the agreement to count three-fifths of the slave population for purposes of state representation in Congress. Southern delegates wanted to count the whole slave population, which would have given the South greater influence over national policy. Northern delegates argued that slaves should not be counted at all, because they had no vote. As the price for achieving the ultimate aim of the Constitution—“to form a more perfect union”—the two sides compromised on this immediate issue of how to count slaves in the new nation. Pragmatic half-victories kept in view the higher aspiration of drawing the country more closely together.

Some might suggest that the constitutional compromise reached for the lowest common denominator—for the barest minimum value on which both sides could agree. I rather think something different happened. Both sides found a way to temper ideology and continue working toward the highest aspiration they both shared—the aspiration to form a more perfect union.

Wagner in the past has expressed regret about slavery on Emory’s behalf and written of the university’s “elective amnesia.” But he seems to have had a relapse.

Wagner’s new essay expresses an old view of the Constitution, casting the lifelong servitude of generations of Americans as an acceptable price for creating or preserving the U.S. of A. The rich, white politicians who forged this compromise and benefited most from that union didn’t give up much for it. The provision’s burden fell almost entirely on poor black slaves, and to a lesser extent on relatively poor free farmers in other districts and states who lost voting power.

In fact, most of the states had already agreed to a version of the three-fifths compromise proposed by James Madison during a debate over taxation under the Articles of Confederation. Only two states—New Hampshire and New York—objected, but that was enough to kill the provision under that constitution. James Wilson and Charles Pinckney proposed the same ratio at the Constitutional Convention. After debating the idea, applied to both representation and a “direct tax,” off and on for weeks, the convention adopted it in Article One, Section 2. The convention also declared that its document would be adopted even if four states voted no.

Wagner has other historical examples of compromises to point to. The Constitutional Convention also had to work out deals on a bicameral legislature with two forms of apportionment and the overlapping powers of the government’s three branches. (Of course, some might say those decisions led to periodic gridlock in Washington later.) Nineteenth-century politicians hailed legislative compromises like the Missouri Compromise and the Kansas-Nebraska Act—but they, like the three-fifths clause, had the effect of strengthening slavery.

If I had to choose one example of political compromise from early America that eventually brought wide benefits, it would be the agreement during the states’ ratification conventions to make immediate amendments to the Constitution. The result, today called the Bill of Rights, was mostly a statement of individual rights and protections. But that compromise arose out of a much wider public debate than the elite convention. And Americans didn’t fully enjoy those rights until the Fourteenth Amendment and twentieth-century judicial decisions requiring state and local governments to respect them.

In contrast, the three-fifths clause is now inoperative and repudiated by all. Indeed, it’s so far back in our past that most people don’t understand how it operated. The Constitution didn’t define blacks as three-fifths human, as some now interpret that clause. For purposes of calculating representation in Congress, the Constitution counted enslaved people in a district and multiplied by three-fifths before adding that number to the free people (white and black). But for all other purposes, the Constitution defined slaves as no-fifths of humans—they were property without rights.

Enslaved Americans might have been better off not being counted for representation. As it was, their numbers, multiplied by three-fifths, provided more influence for the rich white men in the parts of the country where they were enslaved. Those elite voters wielded disproportionate power in the U.S. Congress, the Electoral College, and state legislatures that followed the same system. Their representatives used that power to maintain their status and their human property for decades.

That’s the real lesson of the three-fifths compromise: decision-making by the elite alone tends to maintain the advantages of that elite at a cost to others. Real compromises require the participation of all the people involved and real sacrifices, even from the top.

Gerry and Warren, Anti-Federalist Allies

The Massachusetts Historical Society recently bought a 1788 letter from James Warren to Elbridge Gerry (shown here) that hasn’t appeared in any published correspondence of the two politicians. It does appear online at the Wisconsin Historical Society’s monumental roundup of documents about the ratification of the Constitution.

By 1788, Warren and Gerry had worked together for nearly two decades, first as Whigs opposing the Crown in the Massachusetts legislature and Provincial Congress, then as part of the Revolutionary War effort—Warren as paymaster general for the army in 1775-76 and leader of the Massachusetts legislature, Gerry as a member of the Continental Congress.

In the mid-1780s Warren, unlike many of his wealthy Massachusetts merchant friends, didn’t fully condemn the Shays’ Rebellion. He and his wife, Mercy, preferred a weak national government and feared an overreaction to that rural uprising. There was indeed a Constitutional Convention in response. Gerry served as a Massachusetts delegate to it and came away opposed to the result.

Gerry reported to the Massachusetts legislature on 18 Oct 1787 about what he saw wrong with the proposed new government:

My principal objections to the plan are that there is no adequate provision for a representation of the people—that they have no security for the right of election—that some of the powers of the Legislature are ambiguous and others are indefinite and dangerous—that the Executive is blended with and will have an undue influence over the Legislature—that the judicial department will be oppressive—that treaties of the highest importance may be formed by the President with the advice of two thirds of a quorum of the Senate—and that the system is without the security of a bill of rights. These are objections which are not local but apply equally to all the States.

The Massachusetts ratification convention met in early 1787. It asked Gerry to testify, but when he did Richard Dana, a Federalist, complained that he was trying to enter into the debate even though he wasn’t a delegate. Gerry published an angry defense of himself. Despite his arguments, the Massachusetts convention ratified the new Constitution with a request for amendments.

By then the debate was becoming national. Gerry and fellow Anti-Federalist Luther Martin of Maryland engaged in a newspaper exchange with the Federalist delegate Oliver Ellsworth of Connecticut, who wrote as “A Landholder.” Ellsworth then claimed that Gerry had badmouthed Martin during the national convention, apparently trying to drive a wedge between them. Gerry published an open letter complaining about that.

By the summer of 1788, enough states had ratified the Constitution to give it legal force. Gerry was feeling rather ill used, and that’s when James Warren sent him this sympathetic letter about unfair attacks on him.

TOMORROW: Which rather veered off the topic.