“The Revolution belongs to all Americans”

Johann Neem, author of Creating a Nation of Joiners: Democracy and Civil Society in Early National Massachusetts, Democracy’s Schools: The Rise of Public Education in America, and other historical studies, is a forthright critic of today’s political trumpery.

The New Republic just published Neem’s essay “Unfit to Lead: Trump Is the Enemy of the American Revolution.”

Here are some passages:

Today, as we approach the Declaration of Independence’s semiquincentennial, Donald Trump and his allies claim the Revolution for themselves. They have made fealty to the American Revolution part of their culture war against “woke” progressivism. The Revolution has become a pawn in Trump’s politics of retribution against the country’s supposed cultural enemies. Trump and his allies claim to be patriots while regularly violating the principles outlined in the Declaration of Independence and undermining the government established by our Constitution. . . .

For Trump, [Chief Justice John] Roberts, and their allies, the actual principles of the Revolution matter less than its capacity to signify tribal loyalty by distinguishing “real Americans” from domestic enemies. Trump conflates respect for the Revolution with loyalty to him. The gross spectacle of Trump hosting a military parade on his birthday—as do kings and dictators—and connecting it to the birth of the Continental Army illustrates all too well that he seeks to legitimize his own rule by wrapping himself in the Revolution.

To our Founders, there was a causal relationship between legislative consent and liberty. Today, we often think freedom is the ability to do what one wants. To our Founders, in contrast, freedom was a collective possession, not a private one. Freedom was only possible in a free state in which the people or their representatives actively made the rules that govern their shared life. . . .

Trump’s violations of the Constitution are too long to list here, but among them are illegally suspending laws and violating court orders. He has sought to dominate the other two branches of government by encouraging extralegal violence against legislators, judges, and their families. He has weaponized the Justice Department to go after his political enemies. He threatens the media, universities, and other civil society institutions that dare to question his edicts. Indeed, he seeks to destroy any person or institution that checks his will. . . .

Trump and his allies distort the past to convince their followers that respecting the American Revolution is somehow compatible with supporting a tyrant. They want to turn the Revolution into a symbol for tribal loyalty, but the Revolution belongs to all Americans. The United States was born from a revolt against lawless tyranny and arbitrary power. Today, future generations of Americans are counting on us to protect the republic. Like those who sacrificed so much to secure our freedom two and a half centuries ago, once again we Americans must pledge our sacred honor to uphold the legacy of the American Revolution from those who invoke it only to betray it.

The New Republic article on the web has links to show some of the events Neem refers to.

“Two hundred and forty-nine years later…”

Mother Jones just shared David Corn and Tim Murphy’s article “Here are the Declaration of Independence’s Grievances Against King George III. Many Apply to Trump.”

It begins:

When Thomas Jefferson was writing the Declaration of Independence in the weeks leading up July 4, 1776, he wanted to not only rely on just high-falutin enlightenment ideals to justify the case for separation from Great Britain. His aim was also to present a slam-dunk indictment of King George III—to prove that the royal was a “tyrant” and that he and Parliament had forfeited their right to rule the Americans by breaking their own laws and trampling on the rights of their people. This is why about half of the Declaration is a list of 27 specific grievances lodged against the King and his regime.

Two hundred and forty-nine years later, many of these grievances apply to the reign of Donald Trump. Here’s a look at how Trump stacks up against the Mad King.

He has refused his Assent to Laws, the most wholesome and necessary for the public good.

This grievance refers to the King refusing to approve laws passed by the colonies. Trump used his veto power a few times during his first presidency and has not had to do so this year. But he’s shown his disregard for Congress by simply ignoring existing laws. The Elon Musk-led DOGE attack on the government violated numerous laws—including those governing privacy and data. Trump paid no heed to the War Powers Resolution when he launched a military attack on Iran. He illegally impounded funds approved by Congress. He has misinterpreted the International Emergency Economic Powers Act and the Alien Enemies Act of 1798 to claim powers not afforded the president. Legal experts have said that Trump’s firing of inspectors general and commissioners of independent government commissions is illegal—though some of these cases are still being litigated in the courts. He has also issued an executive order to end birthright citizenship, which is enshrined in the Constitution.

On the Mother Jones site, that last paragraph includes lots of links for reports on the violations. And it goes on, all the way down to “He has excited domestic insurrections amongst us…”

This record is all the more remarkable for two reasons. First, several of the Congress’s complaints about George III referred to things the royal government did while it was openly waging war against the people of America for over a year. And secondly, Britain didn’t have a written Constitution to render the violations so clear.

“Fidelity is not given to a single individual”

On Patriots’ Day the towns of Danvers and Peabody come together again to honor the men who marched from that area on 19 Apr 1775 to confront the British regulars.

Seven men in the Danvers company were killed in the fighting at Menotomy.

The Danvers town archivist, author Richard B. Trask (shown here), was among the speakers at this year’s ceremony. He said: “I cannot ignore, at today’s remembrance of the sacrifice for liberty made by our ancient brethren, the danger that I believe our nation now faces.”

Caroline Enos reported for the Salem News:

Their sacrifice led to the nation’s Declaration of Independence in 1776 and, in 1789, the creation of the Constitution, said Trask, one of the most respected historians of the Salem Witch Trials and North Shore colonial history who is a founding member of the Danvers Alarm List Co.

“Our form of government was codified by the ratification of the United States Constitution,” he said. “It included the establishment of co-equal branches of government, the judicial, executive and legislative. But our Constitution and our way of life can only be preserved by a vigilant citizenry who insists these branches perform as specified in this our founding document.”

Trask said the Executive branch has overstepped its power by disregarding the checks and balances enshrined in the Constitution. He criticized the Department of Government Efficiency, created under President Donald Trump upon taking office in January, for its mass firings of government employees and its steps to defund agencies and programs without the consent of Congress, which is responsible for appropriating the government’s funds.

The Trump administration’s mass deportations of undocumented migrants and, in a growing number of cases, immigrants who came into the country legally, has disregarded the Constitution’s right to due process before American courts, Trask said.

“Our Constitution and our way of life can only be preserved by a vigilant citizenry who insists these branches perform as specified in this our founding document,” he said.

“Fidelity is not given to a single individual, a group or a party, but to the adherence to the words and the meaning of our Constitution.”

Trask’s words of concern followed his detailed account of the events of April 19, 1775. “We must, at this time, be brave as those young men, who in ‘75 were willing to lay their lives on the altar of liberty for a cause bigger than themselves, when our country and its future seemed in peril.”

Much of the crowd cheered or clapped for Trask as he used his walker to step back from the podium. Some who were sitting gave him a standing ovation. Others were upset.

Loyalists were upset at criticism of their king in 1776, too.

Reviewing the Constitution with Ray Raphael

My friend and fellow author Ray Raphael has launched a YouTube channel called “Our Constitution—If We Can Keep It.”

There are six episodes up so far, ranging in length from four to nine minutes. They cover some of the Constitution’s bigger changes from the U.S. of A.’s previous form of government, such as the choice to create a new framework at all and the establishment of the Presidency.

Ray went into much greater detail on these topics in his books Mr. President: How and Why the Founders Created a Chief Executive, Constitutional Myths, and The U.S. Constitution—Explained, Clause by Clause, for Every American Today, plus lesson plans for the Constitutional Sources Project.

A teacher for many years, Ray is aiming to serve an audience of students and the casually curious with these videos. They clarify the Constitution’s eighteenth-century legal language as in, for example, the episode on “Presidential Powers…and Responsibilities,”

There will be no emoluments. That’s any kind of payment for favors granted. Gifts of any kind have to be disclosed. Congress can either approve them or not, but there will be no under-the-table profiteering. This restraint applies to all federal officials, but the President is singled out for special attention.

Obviously, much about the Constitution was controversial, then and now, and these early episodes brush lightly against the fundamental controversies without getting into the weeds. But if they find an audience, there’s plenty of potential for deeper discussion.

Four more episodes are mapped out for this first “season,” with another eleven after that to cover the Amendments.

The Plain Language of the Alien Enemies Act

In 1798 the U.S. Congress, caught up in the possibility of war against France (then under the Directory government), passed a series of controversial laws.

The Naturalization Law made it harder for immigrants to become citizens of the U.S. of A. by increasing the number of years a person had to live in the country before applying. This was repealed in 1802.

The Act Concerning Aliens (distinguished as the Alien Friends Act) empowered the President to jail or deport any non-citizen who he determined was “dangerous to the peace and safety of the United States.” This expired after two years.

The Sedition Act criminalized combining to oppose government measures and criticizing the U.S. government, House, Senate, or President. The John Adams administration deployed this law against Jeffersonian politicians and printers. It expired in 1800.

The Alien and Sedition Acts were strongly opposed at the time. They led to Jeffersonian victories over Federalists. Since then, historians and legal scholars have almost universally treated these laws as a Bad Thing.

The fourth of those laws from 1798 remained on the books, however: the Act Respecting Alien Enemies. It didn’t have an expiration date. Instead, its language limits the circumstances under which a President can invoke it.

The Alien Enemies Act empowers a President to act only

whenever there shall be a declared war between the United States and any foreign nation or government, or any invasion or predatory incursion shall be perpetrated, attempted, or threatened against the territory of the United States, by any foreign nation or government

If “any foreign nation or government” is in a “declared war” with the U.S. of A. or has made a “predatory incursion,” then the federal government can jail and deport that country’s male citizens aged fourteen or older. The U.S. Constitution further vests the power to declare war in Congress, not the executive branch.

Last week the White House illegally invoked the Alien Enemies Act to justify deporting hundreds of Venezuelans to El Salvador even though there’s no declared war against Venezuela nor any invasion by Venezuela.

In place of the law’s actual conditions, the White House claimed that the Tren de Aragua criminal gang and Venezuela amount to something it calls “a hybrid criminal state.” (It didn’t address how in 2023 the Venezuelan government deployed 11,000 soldiers to break up a Tren de Aragua stronghold.) The White House also claims that illegal migration by individuals, in unspecified numbers, is the equivalent of a government-led invasion.

In some ways, the President is an expert on criminal states. He’s a convicted felon, facing additional federal and state charges, adjudicated as liable for sexual assault, and bound by multiple legal settlements for fraud. But that experience in crime doesn’t give this President the legal power to invoke a statute contrary to its provisions.

The executive branch then further demonstrated its lawlessness by ignoring a judicial order to stop flying people out of the country until the legal issues can be decided.

The Nicolás Maduro regime in Venezuela shows the danger of allowing a coup plotter—in this case, Maduro’s predecessor Hugo Chávez after 1992—to take political office. Coup plotters by definition don’t respect elections and the rule of law. Venezuela is now only nominally republican, actually authoritarian (as is El Salvador). But Venezuela isn’t in declared war against or invading the U.S. of A., as the Alien Enemies Act stipulates. It’s not the only criminal state in this story.

Believing in “No More Kings”

In September 1975, as America was celebrating its Bicentennial, ABC launched a new season of Schoolhouse Rock interstitials titled “America Rock.”

The first of those ten cartoons was “No More Kings,” featuring a song by Lynn Ahrens that moved rapidly from the Pilgrims at Plymouth to American independence.

It made enough of an impact that a 1990s pop band called itself No More Kings.

The last cartoon in that series, also with a Lynn Ahrens song, was “Three-Ring Government,” about the division between legislative, executive, and judicial branches.

Looking back, historians’ big criticism of “America Rock” was how it presented a simple narrative of constant progress, elevating the perspective of propertied white men and largely ignoring Americans who dissented or lost out.

Seeking to avoid criticism, the producers had avoided current controversies and also tamed the controversies of the past. They reflected a version of national history that the overwhelming majority of Americans in that era could agree on.

Such as “No More Kings” and “Three-Ring Government.”

Protecting “a government of laws, not of men”

This week William R. Bay, president of the American Bar Association, issued a statement that says in part:

Most Americans recognize that newly elected leaders bring change. That is expected. But most Americans also expect that changes will take place in accordance with the rule of law and in an orderly manner that respects the lives of affected individuals and the work they have been asked to perform.

Instead, we see wide-scale affronts to the rule of law itself, such as attacks on constitutionally protected birthright citizenship, the dismantling of USAID and the attempts to criminalize those who support lawful programs to eliminate bias and enhance diversity.

We have seen attempts at wholesale dismantling of departments and entities created by Congress without seeking the required congressional approval to change the law. There are efforts to dismiss employees with little regard for the law and protections they merit, and social media announcements that disparage and appear to be motivated by a desire to inflame without any stated factual basis. This is chaotic. It may appeal to a few. But it is wrong. And most Americans recognize it is wrong. It is also contrary to the rule of law.

The American Bar Association supports the rule of law. That means holding governments, including our own, accountable under law. We stand for a legal process that is orderly and fair. We have consistently urged the administrations of both parties to adhere to the rule of law. We stand in that familiar place again today. And we do not stand alone. Our courts stand for the rule of law as well. . . . We support our courts who are treating these cases with the urgency they require. Americans know there is a right way and a wrong way to proceed. What is being done is not the right way to pursue the change that is sought in our system of government.

These actions do not make America stronger. They make us weaker. . . .

Moreover, refusing to spend money appropriated by Congress under the euphemism of a pause is a violation of the rule of law and suggests that the executive branch can overrule the other two co-equal branches of government. This is contrary to the constitutional framework and not the way our democracy works. The money appropriated by Congress must be spent in accordance with what Congress has said. It cannot be changed or paused because a newly elected administration desires it. Our elected representatives know this. The lawyers of this country know this. It must stop.

There is much that Americans disagree on, but all of us expect our government to follow the rule of law, protect due process and treat individuals in a way that we would treat others in our homes and workplaces. The ABA does not oppose any administration. Instead, we remain steadfast in our support for the rule of law.

John Adams was fond of defining a republic as “a government of laws, not of men.” He was echoing the British political writer James Harrington, who criticized the opposite situation: “some man, or some few men, subject a city or a nation, and rule it according to his or their private interest: which, because the laws in such cases are made according to the interest of a man, or of some few families, may be said to be the empire of men, and not of laws.”

After Richard Nixon and Robert Bork dismissed Archibald Cox because the Watergate prosecution was closing in on Nixon’s crimes, Cox issued a statement that drew on that tradition: “Whether we shall continue to be a government of laws and not of men is now for Congress and ultimately the American people.”

“The bill for laying a duty on goods, wares, and merchandises”

As I wrote yesterday, on 5 May 1789 the new U.S. House faced the text of its first major bill: a schedule of tariffs on various imported goods.

Tariffs within the British Empire had been a huge issue in the years leading up to the Revolutionary War. Colonial merchants had to pay those taxes when their goods were landed.

Though that money went into the central government’s coffers, and therefore theoretically benefited all British subjects, American importers and politicians had complained vociferously.

Of course, since tariffs were an established way for governments to raise money, a number of the states instituted their own import taxes during and after the war. The U.S. Constitution assigned that power to the national government alone, with the requirement that they be equal in every port. But how much tax should the U.S. of A. collect?

Over the next several days, the House kept making itself into a committee of the whole to consider the proposal. More petitions arrived from domestic manufacturers, pushing for higher tariffs. On 16 May the House finally voted, 41–8, to approve the “bill for laying a duty on goods, wares, and merchandises, imported into the United States.”

Nearly a month later, on 12 June, Samuel Allyne Otis, secretary of the U.S. Senate, came to tell the House that that chamber had also passed the bill on duties, but “with sundry amendments.” Over the next two weeks there was a lot of back and forth. The Senate reported which amendments it would “recede” from and which it would insist on. The House approved a conference committee. At last, on 29 June Otis reported that the Senate acceded to the House’s last two proposed amendments.

Congress had reached agreement on a major bill—it had never done that before! Just to be sure, on 1 July the House created a small committee “to examine the enrolled bill” to be sure the text was accurate and ready for signature by the leaders of the two chambers.

The next day, Speaker Frederick Muhlenberg (shown above) signed the document. On 3 July, a joint committee presented it to the President. And on the already symbolic date of the Fourth of July, George Washington signed the first substantial legislation of the first U.S. Congress. It’s now called the Tariff Act of 1789.

But Congress still hadn’t established how to collect those duties.

TOMORROW: Following up.

“Power To lay and collect Taxes, Duties, Imposts and Excises”

The U.S. Constitution, in Article I, Section 7, states:

All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.

The next section begins:

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises,…but all Duties, Imposts and Excises shall be uniform throughout the United States;…

Under that Constitution, men elected to the U.S. House of Representatives met for the first time on 4 Mar 1789. They quickly saw they didn’t have a quorum. Those men gathered six days a week until 1 April, when finally enough Representatives arrived.

For the next couple of weeks, the House got itself organized: electing a speaker (Frederick Muhlenberg), choosing a clerk and other staff, establishing an oath of office, and composing rules. On 6 April members participated in counting the electoral votes. (Spoiler: George Washington won.)

On Wednesday, 8 April, the House “resolved itself into a Committee of the Whole on the state of the Union.” That bland language meant the legislators were taking themselves off the official record in order to discuss something that could be controversial—in this case, those import duties that the Constitution empowered them to enact. This was the first substantial issue the House took up, the first potential law that affected more than the workings of the government itself.

According to Debates in Congress, compiled decades later, Rep. James Madison of Virginia was first to speak on this subject “of the greatest magnitude.” He suggested starting with the “propositions made on this subject by Congress in 1783,” at least as “the temporary system.”

Madison read off the list of imported goods that the Continental Congress proposed should be taxed. Elias Boudinot of New Jersey endorsed that proposal. The next day, John Laurance of New York argued that an across-the-board duty would be easier and quicker than enumerating what to tax and how much. But there was general agreement that the federal government should start collecting import duties.

Meanwhile, messages started to come in from interest groups: manufacturers in Baltimore, shipwrights in Charleston, and so on. Domestic manufacturers wanted higher tariffs to help their businesses. Merchants wanted lower tariffs to keep down their costs. Ship builders and owners wanted preferential treatment for American vessels. As for consumers, who would ultimately pay higher prices, they weren’t really organized.

On 28 April, a House committee proposed a series of duties on various imported commodities and goods, from Jamaica rum and cheese to millinery and walking-sticks. There were higher tariffs on distilled spirits from “any State or Kingdom not in alliance with the United States” and on teas brought in on ships owned by foreigners. On 5 May, the committee presented the text of a law to enact those duties.

Tariffs have thus been part of American legislation from the beginning of the federal government—even before, considering how Madison was calling on a precedent from the preceding Congress. Those taxes were in fact the main source of revenue for the national government for many decades. But the first Congress understood two things:

• As revenue measures, those tariffs had to originate in the House, not be imposed by the executive.
• Imposing tariffs required discussion and careful balancing of the benefits and costs.

TOMORROW: Making law.

Amar’s Constitutional Conversation Continues in Concord, 16 Jan.

On Thursday, 16 January, the Concord Museum will host Akhil Reed Amar, Sterling Professor of Law and Political Science at Yale University, speaking on the U.S. Constitution.

Amar’s books include The Bill of Rights (1998), America’s Constitution (2005), America’s Unwritten Constitution (2012), and The Words That Made Us: America’s Constitutional Conversation, 1760–1840 (2021).

The event description says:

Uniting history and law through the biggest constitutional questions early Americans confronted, Professor Amar discusses the formative decades of the Constitution after its ratification and its resonance today. As Professor Amar notes, our national “constitutional conversation continues” to this day “in courtrooms, classrooms, newsrooms, family rooms and everywhere in between.”

A couple of years ago, however, Gregory Ablavsky wrote in the Michigan Law Review that Amar’s description of that “constitutional conversation” is too limited:

He focuses much of the book around the idea of a “constitutional conversation,” a cacophonous and capacious dialogue that encompassed many Anglo-Americans. Unfortunately, his account of that conversation quickly collapses to the views of a handful of too-familiar figures—a cramped vision that reads backward our own sometimes narrow constitutional conversation privileging a clubby legal elite oriented around the Supreme Court. Democracy, “America,” and “the people” all feature prominently here, but only as abstractions that get seen but not heard. This is a notably undemocratic history of democracy.

For over a generation, historians have offered a different version of the constitutional conversation—one that is fuller and more inclusive, highlighting the many ways that the actual people accessed and shaped constitutional law. . . . The point of this approach is not more inclusiveness to serve current sensibilities; it is that a diverse range of actors and arguments mattered. They shaped law. Often, the “Big Six [Founders]” were reacting more than acting. . . .

None of this is to fault Amar for not writing a different book. It is to fault him for failing to write the book that he claims he did write, about the early republic’s constitutional conversation. Without much evidence, he announces his conclusory, if regretful, finding that the views of those outside the room didn’t matter, thereby echoing past generations who labored so hard to ignore these voices. . . .

Why not instead have a constitutional history that reflects the pluralism that Amar acknowledges? People with “myriad ethnic backgrounds” and “ideologies” were already present at the beginning, sharing a continent and a nation. They might not all have been at the Constitutional Convention or in [George] Washington’s cabinet, but as Amar argues, “America” was: the document’s drafters were keenly aware of the complex nation that they sought to govern.

That offers plenty to think about.

This event starts at 7:00 P.M. Tickets for seats at the Concord Museum are free for members, $10 for the public. People can also register to watch online for free.

Off to a Great Start

Yesterday, after being chosen Speaker of the House by the minimally required 218 members, Rep. Mike Johnson delivered a speech that included these lines about a ceremony earlier in the day:

I was asked to provide a prayer for the nation. I offered one that is quite familiar to historians and probably many of us. It said right here in the program, it says right under my name, ‘it is said each day of his eight years of the presidency, and every day thereafter until his death, President Thomas Jefferson recited this prayer.’

I wanted to share it with you here at the end of my remarks. Not as a prayer per se right now, but really as a reminder of what our third President and the primary author of the Declaration of Independence thought was so important that it should be a daily recitation.

You can no doubt see where this is going.

Monticello’s Thomas Jefferson Encyclopedia discusses this prayer among many other spurious quotations attached to the third President’s name with no evidence.

This text is called a “National Prayer for Peace,” and the historic site’s research staff says:

We have no evidence that this prayer was written or delivered by Thomas Jefferson. It appears in the 1928 United States Book of Common Prayer, and was first suggested for inclusion in a report published in 1919.

In other words, this text appears to date from the Woodrow Wilson administration, either the “he kept us out of war” period or the “we need a League of Nations” period, and was then officially adopted by a particular denomination of Protestant Christianity. The primary author of the Declaration of Independence did not know this text, nor make it a “daily recitation.”

Monticello also notes that Gov. Franklin D. Roosevelt, who was Episcopalian, used this text in his Thanksgiving Day address in 1930. Johnson could thus have connected his speech with a major U.S. President. But of course Roosevelt was a Democrat who expanded the federal government to help Americans during an economic crisis and then helped lead the global fight against fascism. Johnson is serving an ideology and a President with different goals.

As Monticello points out, folks who know anything about Thomas Jefferson’s ideas on religion should quickly doubt any claim that he composed a public prayer like this. Jefferson considered religion a private matter. He was proud of authoring a Virginia law that ended the establishment of religion and guaranteed freedom of thought. As President he broke from his predecessors’ precedents and declined to issue Thanksgiving proclamations.

Here’s a real Jefferson quote on the latter matter. In 1808 the Rev. Dr. Samuel Miller, a Presbyterian minister then based in New York, wrote asking him “to recommend…a day of Fasting, Humiliation and Prayer.”

The third President replied:

I consider the government of the US. as interdicted by the constitution from intermedling with religious institutions, their doctrines, discipline, or exercises. this results not only from the provision that no law shall be made respecting the establishment, or free exercise, of religion, but from that also which reserves to the states the powers not delegated to the US. . . .

I do not believe it is for the interest of religion to invite the civil magistrate to direct it’s exercises, its discipline or its doctrines: nor of the religious societies that the General government should be invested with the power of effecting any uniformity of time or matter among them. fasting & prayer are religious exercises.

It would be hard to find a U.S. President more opposed to a “National Prayer” of any kind than Jefferson.

[ADDENDUM: Sharing a more complete story of the prayer.]

False Witness about What James Madison Wrote

Earlier this year, the Louisiana legislature passed a law requiring all public schools in the state to display a particular edited version of the Ten Commandments in a particular size starting on 1 Jan 2025.

A federal judge has blocked that law from taking effect on the grounds that it clearly violates the U.S. Constitution’s First Amendment bar on governments establishing religion.

In attempting to justify itself, the law cites some historical facts about earlier invocations of religion in American civic life, though not the Ten Commandments. The law’s only citation specifically mentioning those supposedly foundational rules is:

History records that James Madison, the fourth President of the United States of America, stated that “(w)e have staked the whole future of our new nation . . . upon the capacity of each of ourselves to govern ourselves according to the moral principles of the Ten Commandments”.

That is, however, a lie. The editors of the James Madison Papers have said that those words don’t appear in his writings, and that idea is antithetical to what Madison did write about the basis of the Constitution and the place of religion in government.

Three books published in 1989 attributed those words to Madison:

• George Grant, Trial and Error: The American Civil Liberties Union and Its Impact on Your Family.
• Mark A. Belilies and Stephen McDowell, America’s Providential History.
• David Barton, The Myth of Separation.

All three were written by fundamentalist Christian ministers publishing through fundamentalist Christian presses (in Barton’s case, through his own organization).

As his source for the Madison quotation, and for other claims, Grant pointed to Harold K. Lane’s Liberty! Cry Liberty! (Boston: Lamb & Lamb Tractarian Society, 1939). Beliles and McDowell offered no citation. Barton cited Beliles and McDowell.

In his 1992 reissue of The Myth of Separation, Barton changed his citation to match Grant’s Liberty! Cry Liberty! and added a 1958 issue of Progressive Calvinism, itself citing that year’s calendar from the Spiritual Mobilization organization.

Authors defending Barton and themselves against the charge of lying about the quotation point to Liberty! Cry Liberty! as evidence that people have attributed those words to Madison since 1939. Except that citation also appears to be a lie.

Chris Rodda has detailed her unsuccessful quest to find a copy of Liberty! Cry Liberty! anywhere. It’s not in the Library of Congress or Harvard University, the nation’s two largest repositories. The book has no entry in WorldCat. Nor is there other evidence of the publisher or author existing. Grant has never supplied a copy or explained where he saw one.

Rodda has made a convincing case that the real source of this “quotation” are speeches that law school dean Clarence Manion delivered in the early 1950s in support of the Bricker Amendment. Manion interspersed accurate quotations from Madison with his own exegeses, which of course reflected his own ideas of politics and religion and which many Madison experts disagree with. Later in that decade, it appears, people assembling non-scholarly religious publications assigned Manion’s words to Madison himself.

After that, a series of authors saw a “quotation” from a famous Framer that confirmed their existing belief and repeated it without checking for an original source, all the way to the Louisiana law. So is this a simple chain of error, the authors to be blamed for no more than carelessness?

I don’t think the idea of simple mistakes is tenable. For one thing, someone came up with that suspicious citation of Liberty! Cry Liberty!, and many other people have repeated it without anyone apparently confirming the publication even existed.

Secondly, scholars pointed out the falsehood of the Madison quotation decades ago. The Madison Papers editors addressed it in 1993. Robert S. Alley published about it in the William & Mary Bill of Rights Journal in 1995. The Washington Post published a letter about it in 1999. Chris Rodda wrote out her investigation in 2016.

Even Barton and his organization now acknowledge that the Madison quotation is “unconfirmed” after more than twenty years of zealous searching. (I’ve discussed other obvious errors from Barton here and here. And we mustn’t forget how Barton’s effort at publishing through a religious press with higher standards was recalled in 2012.)

In sum, the Louisiana legislature used a false claim to justify promulgating a particular religious text to schoolchildren. That claim had been publicly shown to be false before the parents of some of those children were even born. The lack of evidence for that claim can easily be found through a simple web search, including at the website of the author most responsible for spreading the falsehood. That doesn’t add up to simple carelessness. That’s educational negligence.

TOMORROW: What The New England Primer says about the Ten Commandments.

“Deriving their just powers from the consent of the governed”

The earliest Presidential election I remember following in the news was during the Bicentennial year of 1976. I collaborated with classmates on an elaborate political cartoon about the Democratic primaries in the unforgiving medium of the mimeograph.

I think that was also the year I learned about the odd workings of the Electoral College. We calculated how a candidate could win the Presidency by winning just the eleven biggest states, as I recall.

(Since then I’ve seen more sophisticated analysis than my fifth-grade crew could muster, pointing out that the way to win the Electoral College with the fewest votes isn’t to win the eleven biggest and therefore underrepresented states but the forty smallest ones by narrow margins.)

At the time, most people saw the Electoral College as a curious relic. It was something political reporters brought up in the last weeks of the campaign as they ran out of fresh topics. Not since 1888 had the front-runner in the popular vote been kept out of the White House because of the Electoral College, and that guy came back and won four years later.

As Election Day approached in 2000, those stories about the anomaly of the Electoral College resurfaced as usual. One of my college roommates passed on pundit speculation about Al Gore losing the popular vote but winning the Electors. I replied that that wouldn’t be a good outcome since the winner of a democratic election should have a popular mandate.

As we all know, that election went the other way: George W. Bush lost the popular vote but won through the Electors (and the Supreme Court’s decision to stop Florida’s recounts). For the first time in more than a century, the Electoral College was more than a curiosity.

That’s why I’ve felt confident in opposing that form of election distortion—I knew that I had opposed it even when it would hypothetically benefit my preferred candidate. I wrote about the problems of the Electoral College on this blog in 2006, and then again in 2008, 2012, 2016, 2017, 2019 (twice), and 2020 (multiple times).

America’s founding generation left us the power to reform the original electoral system. They also left us their example of doing so, with the Twelfth Amendment. And they left us a mandate to do so in the Declaration of Independence, which says:

—That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed,

—That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

For decades, clear majorities of the American population have supported the idea of getting rid of the Electoral College and deciding the Presidential election by popular vote, the way we fill every other elected office. The “consent of the governed” should not be determined by inertia or the stubbornness of a minority insisting on keeping an unfair advantage.

“Demagogues never were nor will be Patriots”

The way the Federalists told it, the biggest danger to the new American republic would be some form of “anarchy” leading to a demagogue gaining power.

This was, they warned the voting public, more likely than some form of aristocracy or oligarchy leading to a tyrant gaining power.

That fear motivated George Washington to come out of retirement and chair the Constitutional Convention in Philadelphia, as he explained to Lafayette on 6 June 1787:

The pressure of the public voice was so loud, I could not resist the call to a convention of the States which is to determine whether we are to have a Government of respectability under which life—liberty, and property secured to us, or whether we are to submit to one which may be the result of chance or the moment, springing perhaps from anarch⟨ie⟩ Confusion, and dictated perhaps by some aspiring demagogue who will not consult the interest of his Country so much as his own ambitious views.

That convention produced a blueprint for government with a stronger national chief executive than anyone had envisioned before, albeit not as strong as it would become later. And of course the Federalists felt they were the best qualified to exercise those powers.

The fear of demagogues remained, now directed at any popular opposition to their policies. After negotiating a treaty with Britain that he knew would provoke complaints, John Jay wrote home to President Washington on 25 Feb 1795:

Demagogues will constantly flatter the Passions and Prejudices of the multitude; and will never cease to employ improper arts against those who will not be their Instruments. I have known many Demagogues, but I have never known one honest man among them. These are among the Evils which are incident to human Life, and none of them shall enduce me to decline or abandon Pursuits, in which I may concieve it to be my Duty to embark or persevere. All creatures will act according to their nature, and it would be absurd to expect that a man who is not upright will act like one that is.

Over a decade later, Jay was a retired jurist, diplomat, and New York governor, but he still expressed distaste for politicians who played to the public in an 18 Apr 1807 letter:

All Parties have their Demagogues, and Demagogues never were nor will be Patriots—Self Interest excites and directs all their Talents and Industry; and…by that Principle they regulate their conduct towards Men and Measures—nor is this all—They not only act improperly themselves, but they diligently strive to mislead the weak the Ignorant and the unwary—as to the corrupt they like to have it so—it makes a good market for them.

While I share these Federalists’ worry about demagogues, I think they directed that worry at the wrong targets, their view distorted by class prejudices and (try as they might) their own self-interests.

Firstly, the politicians the Federalists of the 1790s feared would be demagogues, such as Thomas Jefferson or even Matthew Lyon, didn’t threaten the republic, only Federalist domination of that republic.

Beyond that, history has shown that bigoted inertia was a bigger obstacle to liberty and economic growth than allowing the American government to be more responsive to the whole American people.

“Apprehensive, that the Government of these States, may in future times, end in a Monarchy”

Last month the Journal of the American Revolution published Ray Raphael’s article “A Kingly Government?: Benjamin Franklin’s Great Fear.”

Franklin and James Madison were among the most vocal of the men at the Constitutional Convention wary of assigning too much power to the executive branch, or investing too much of that power in one man.

Ray Raphael writes:

Madison opened the bidding. Wouldn’t it be “proper,” he asked, “before a choice should be made between a unity and plurality in the Executive, to fix the extent of the Executive authority?” Madison proposed minimal powers: “to carry into execution the national laws” and “to appoint offices in cases not otherwise provided for.” With little dissent, state delegations agreed. Executive authority was subservient to legislative demands, save only for some lesser appointments. Most significantly, he/they would not possess the “powers of war and peace.”

Later the debate turned to whether there would be a single executive and how long one man would hold that office:

Franklin stewed over the prospect of a single executive serving for seven years. “Being very sensible of the effect of age on his memory,” he told the Convention the next morning, he carefully wrote down his objections. Saddled with a weakened voice and failing eyes, he would find it difficult to read aloud what he had just penned, so James Wilson offered to read it for him:

It will be said, that we don’t propose to establish Kings. I know it. But there is a natural inclination in mankind to Kingly Government. It sometimes relieves them from Aristocratic domination. They had rather have one tyrant than five hundred. It gives more of the appearance of equality among Citizens, and that they like. I am apprehensive therefore, perhaps too apprehensive, that the Government of these States, may in future times, end in a Monarchy.

I’d like to refute Franklin’s belief in “a natural inclination in mankind to Kingly Government.” However, too many people speak of U.S. Presidents as solely responsible for laws, court decrees, wars, and other actions that the Constitution explicitly assigns to other branches. And a smaller but still too large number of people are attracted to obvious strongmen.

Back in 1787, as the convention went on, however, most delegates seem to have let those worries subside a bit. The example of George Washington in the chair probably had an influence. No better solutions presented themselves.

We know that Franklin and Mason opposed a single executive, fearing the extent of his powers. They had sounded the alarm at the outset of the convention, and [George] Mason’s opposition to ratification would highlight the dangers of a single executive as well as the absence of a bill of rights. But Madison’s concern has received scant attention. A chief architect of the Constitution’s checks and balances, he failed to gain traction for this protection against an executive who put himself over country. Convention fatigue might well have played a role.

The Constitution did explicitly reserve “powers of war and peace” for the legislature, and limited the single executive to a four-year term. While the British Crown could veto legislation, a U.S. President’s veto could be overridden. Still, the fear of a President taking on monarchical powers and the rest of the government being unable or unwilling to stop it remained.

Ray Raphael’s article ends with Franklin’s exchange with Elizabeth Powel, as recorded by James McHenry:

Well Doctor what have we got a republic or a monarchy. A republic replied the Doctor if you can keep it.

(I’ve discussed that anecdote at length since 2017.)

“Whether societies of men are really capable or not, of establishing good government”

From the first “Publius” essay, written by Alexander Hamilton and published on 27 October 1787 in the Independent Journal of New York:

It has been frequently remarked, that it seems to have been reserved to the people of this country, by their conduct and example, to decide the important question, whether societies of men are really capable or not, of establishing good government from ref[l]ection and choice, or whether they are forever destined to depend, for their political constitutions, on accident and force.

If there be any truth in the remark, the crisis, at which we are arrived, may with propriety be regarded as the æra in which that decision is to be made; and a wrong election of the part we shall act, may, in this view, deserve to be considered as the general misfortune of mankind.. . . .

…a dangerous ambition more often lurks behind the specious mask of zeal for the rights of the people than under the forbidden appearance of zeal for the firmness and efficiency of government. History will teach us that the former has been found a much more certain road to the introduction of despotism than the latter, and that of those men who have overturned the liberties of republics, the greatest number have begun their career by paying an obsequious court to the people; commencing demagogues, and ending tyrants.

In 1788 most of those essays were collected as The Federalist: A Collection of Essays, with eight more appearing in the New York newspapers after that.

A French edition of 1792 named the authors behind “Publius” as Hamilton, James Madison, and John Jay.

In the late 1800s authors began to refer to the essays as “the Federalist papers,” and eventually they came to have the title most people use for them now: The Federalist Papers.

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.

Preview of “The Promise of Liberty” in Charlestown

From now till Monday, coinciding with the battle anniversary, the Bunker Hill Museum is playing host to a pop-up exhibit of historic documents showing the expansion of American constitutional freedom, organized by Seth Kaller.

Pictured above are:

• 18 July 1776 New-England Chronicle printing of the Declaration of Independence.
• Newspaper printing of the proposed new U.S. Constitution, followed by George Washington’s letter to the Congress as convention chairman explaining the benefits of the new government framework.
• Newspaper reporting the first twelve proposed amendments to that constitution.
• Statement autographed by Frederick Douglass.
• Newspaper report on Abraham Lincoln’s speech in Independence Hall on his way to Washington, D.C., in 1861.
• Poster from 1913 showing the progress of woman suffrage.
• Prepared text of Martin Luther King’s speech at the Lincoln Memorial, to which he improvised the “Dream” passage.

The exhibit also includes a display dedicated to religious liberty and inclusion with a reproduction of President George Washington’s letter to the Touro Synagogue in Newport, a speech by Franklin Delano Roosevelt, and more.

This is a prototype of a larger traveling exhibit (or series of exhibits) that Kaller envisions called The Promise of Liberty. Its website explains:

The Exhibit aims to inspire a sense of unity and pride that cuts across political divides, while encouraging gratitude for the liberties we have and igniting a collective determination to defend and expand upon the liberties promised 250 years ago.

The organization is now talking to potential sponsors, partners, and hosts in the Sestercentennial years. In the meantime, folks can get a preview in Charlestown this weekend. 

The Case of the Adapted Anecdote

Today is Constitution Day, declared to commemorate the date on which the delegates at the Constitutional Convention signed off on their work.

Not the day on which that proposed constitution for the new U.S. of A. was ratified by a supermajority of the people’s representatives, nor the day on which it went into effect. But that’s another story.

Speaking of stories, I’m continuing to investigate the anecdote that James McHenry wrote and then rewrote about Benjamin Franklin telling Elizabeth Powel that the convention provided for a “a republic—if you can keep it.”

Two Supreme Court justices have written books using that phrase as their title. The more recent is by Neil Gorsuch, who alluded to the story only in passing.

The earlier was by Earl Warren in 1972, after he had retired from the bench. It offers this page at the start:

After a detailed description of Franklin encountering a woman outside the meeting hall, Warren cited the “Notes of Dr. James McHenry, one of the delegates,” adding, “Adapted from Documents Illustrative of the Formation of the Union of the American States, Government Printing Office, 1927.”

When I looked up that government publication, however, I found only the transcription of what McHenry wrote at the end of his convention notes, as published in Max Farrand’s The Records of the Federal Convention of 1787 in 1911.

A lady asked Dr. Franklin Well Doctor what have we got a republic or a monarchy. A republic replied the Doctor if you can keep it.

The lady here aluded to was Mrs. Powel of Philada.

Warren accurately quoted Elizabeth Powel’s question about “a republic or a monarchy.” He didn’t insert the word “Madam” into Franklin’s response as some authors did.

However, none of the emotional detail in Warren’s anecdote—how the “delegates trudged out,” the “anxious woman in the crowd waiting at the entrance”—came from the source he cited. The phrase “Adapted from” shows that Warren must have realized how his telling differed from the original. Most likely, he had been influenced by other detailed retellings and imagined the scene that way.

American authors had been setting this exchange on the street for at least thirty years by then. (McHenry wrote that it happened indoors, and Powel insisted that it had happened in her salon if it had happened at all.)

Previous writers had described the questioner as “eager,” “concerned,” and “inquisitive.” This is the earliest version that I’ve found using the word “anxious,” an adjective repeated in reviews of this book and in later narrations. (Powel would have hated that characterization.)

This version of the anecdote appeared in a book by a former Chief Justice of the United States, with what appears to be a citation to a highly authoritative source. But tracing back that citation shows how many details of this tale were spun out of nothing.