Mandeville, LA – Exclusive Transcript – In other words, Washington did what Washington always did. He pretended like he didn’t want to be there and he didn’t want anything to do with the proceedings and he just happened to be nominated for this grand position. Then, as he always did, he executed his task with historical flair and brilliance. To talk about this and to help flesh it out and why it was a federal convention is my good friend Dr. Professor Kevin Gutzman, author of The Politically Incorrect Guide to the Constitution and his great book which covers this convention and James Madison’s role in it, James Madison and the Making of America. Check out today’s transcript for the rest…
Begin Mike Church Show Transcript
Mike: As a matter of fact, I had printed out Judge Yates’ — Yates was one of the stellar delegates to the convention because he left in a huff in July when he realized that there seemed to be no stopping little Jimmy Madison and his cohorts in trying to form some kind of new national government. So Yates stormed out in July but he began the convention. He took very good notes while he was there. This is how he described the events of the 25th of May 1787, which will happen tomorrow on the 226th anniversary.
General Washington was unanimously elected by ballot and conducted to the Chair by Mr. Robert Morris and Mr. Rutlidge; from which in a very emphatic manner he thanked the Convention for the honor they had conferred on him, reminded them of the novelty of the scene of business in which he was to act, lamented his want of better qualifications, and claimed the indulgence of the House towards the involuntary errors which his inexperience might occasion.
Mike: In other words, Washington did what Washington always did. He pretended like he didn’t want to be there and he didn’t want anything to do with the proceedings and he just happened to be nominated for this grand position. Then, as he always did, he executed his task with historical flair and brilliance. To talk about this and to help flesh it out and why it was a federal convention is my good friend Dr. Professor Kevin Gutzman, author of The Politically Incorrect Guide to the Constitution and his great book which covers this convention and James Madison’s role in it, James Madison and the Making of America. Kevin, good morning, how are you?
Kevin Gutzman: Good morning, Mike. I’m well, how are you?
Mike: I am very well. When you and I were conversing about this over email, I reminded you that it was 226 years that we would be acknowledging or celebrating the start of the Federal Convention. You quipped: 226 years? Why, it seems like only yesterday.
Gutzman: It’s always kind of a live issue for me because I, mentally at least, spend a lot of my time there.
Mike: I’ve been explaining this all week and wanted to get your expert input on this. You’ve made this your life’s work here. I’ve been explaining to the audience why it mattered that the convention was supposed to start on the 14th of May, didn’t begin until the 25th of May, and before the 25th there were enough bodies present to form a quorum but there were not enough states present to form a quorum. I try to explain why that matters in our federal scheme of things. I said I’ll leave this to Professor Gutzman and let him explain it.
Gutzman: The reason is that it was not a national convention, it was a federal convention. It was a convention of representatives of the 13 states or whichever of them wanted to participate. It ended up being 12 that wanted to participate. As you just pointed out, Lansing and Yates of New York left in July. That reduced the number in attendance to 11 states. Up to the point when there was representation from a majority of states, the delegates didn’t think they were entitled to proceed. That was what formed the basis of many of the decisions they made through the summer, such as that regardless of population or territorial extent, each of the states would have the same vote in the convention.
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Mike: The votes that would then be recorded would be recorded not by — even though we have records of who voted yea or nay on most things, they’re recorded by state. So if Virginia had eight delegates or whatever it was and five of them said yes and three said no, then Virginia voted in the affirmative, right?
Gutzman: That is correct, yes. It’s true that for many votes we either know how people voted or can infer from the way the states voted, but most of the time we’re not really certain.
Mike: The convention starts. I used Yates’ notes, by the way, to write the script part that you heard, because that’s really the most complete record that we have. Madison didn’t really write anything on the 25th, just one little sentence about the convention. On the 28th, he kicked it into high gear. We’ll get into that in just a moment. When they nominate Washington to be the president and preside over the convention, when Washington gets up and makes his little speech, I’ve not been able to find that Washington uttered another solitary word that anyone recorded other than “Order, order.” Can you shed any light on that? Is that Washington’s last role in the proceedings?
Gutzman: No. When they get to the very end of the convention in September, there was discussion of the question of what size the House of Representatives would have. There were proposals for limiting the number of members of the House to 1 per 40,000 population in a state. Washington sided with the people who wanted to say it couldn’t be any larger than 1 per 30,000. Clearly today when each representative is supposed to represent over 700,000, that no longer has any great effect. Apparently what Washington was really concerned with at that point was just ensuring there was consensus and a good feeling among the delegates as the convention closed.
Mike: What do you think it was like when the delegates got inside the hall? There was no business that was transacted on the 25th other than the election of Washington as president of the Federal Convention. On the 28th when business actually began and the commissions were read, after they finished that, then Edmund Randolph, who was the governor of Virginia at the time and a delegate, drops the bomb with the introduction of what came to be known as the Virginia Plan. Can you describe the events of the 28th and the introduction of the Virginia Plan and what it was?
Gutzman: Of course, Governor Randolph was tall, handsome, wealthy, well-spoken. In each of these ways, he was unlike Madison. We think that the Virginia Plan was mainly Madison’s handiwork, because certainly the other delegates from Virginia agreed to the broad outline of reform that he had in mind, at least as a preliminary matter. They chose Randolph to present this because of the reasons I just stated. Randolph stood up and said: Mr. President, I have here resolutions. Through the whole summer, they were going to refer to these resolutions not as the Virginia Plan but as Randolph’s Resolutions. Then he said: We need to have a national government with a national legislature, national executive, and national judiciary. He went on to explain what kind of national government the nationalists, let by Madison at this point, had in mind.
So, for example, they proposed that there should be a bicameral national legislature with each house apportioned by population, that the lower house should be selected by the people and the upper house should be selected by the lower house. It should have a general legislative authority and veto power over all state laws. Well, as you know, none of those ideas ultimately were adopted except that there should be a bicameral legislature. The standard narrative that you get from virtually every source is that Madison’s outline of a government was essentially a rough draft of the Constitution and by the end of the summer the convention had more or less agreed to it. As I just said in regard to the legislature, basically all of his favorite ideas about it were rejected except that it should be bicameral.
I explain in detail in James Madison and the Making of America, I think it’s entirely inaccurate to think of the U.S. Constitution as Madison’s brainchild, but it seems that people are impervious to evidence in this area. I guess they’re going to continue to call Madison the father of the Constitution forever, regardless whether he liked that title or it’s accurate or they’ve even heard of Madison. It’s frustrating that some myths are so heavily encrusted on the good ship American history that there’s no way to get rid of them.
Mike: Tomorrow will be the 25th of May, the 226th anniversary of the start of the Federal Convention. Very specifically, this thing was called, in every bill that I can find that was printed and in every commission that was read aloud when the convention began on that day, it was referred to as the Federal Convention of 1787 that was to meet on the second Monday of May in the year of our Lord 1787. Yet today, in another stroke of mythological replacement of actual fact, it is now almost always referred to as the Constitutional Convention. It couldn’t have been a constitutional convention, could it have, because they didn’t intend to go there and write a constitution, did they?
Gutzman: Certainly the states that called for this convention and sent delegates and the congress that endorsed the idea of an amendment convention did not say this was going to be a constitutional convention or a national convention, either one. If they had, as Mr. Yates said in explaining why he was leaving, they never would have sent delegates in the first place. That’s one reason why after the delegates voted for George Washington to preside, the next thing they voted to do was to close the doors and send all the reporters home. They wanted to ensure that there would be secrecy through the convention, that there wouldn’t be reports of it in newspapers or letters written by delegates to people back home saying what was going on. They knew that most people weren’t going to agree to the idea of having a national convention.
After the rule was adopted that there be a kind of stony silence about what was really going on, Governor Randolph stood up and proposed a national government. The interesting thing about it is that even though Madison and his pals laid out the idea of a national government, by the end of the summer, they said before, their hopes had been thwarted and what was created was a federal constitution. I explained how the Virginia Plan version of congress was not adopted by the Philadelphia Convention. I could do the same thing in regard to several other components of the Virginia Plan. They weren’t just secondary matters.
For example, Madison, through the whole convention, kept insisting that the most important thing was that there needed to be a national veto over all state laws. He brought this up over and over again and the other states kept refusing it. The last time he proposed it, the vote against it was 10-0. He was extremely unhappy. When he wrote after the convention to his friend Thomas Jefferson in France about what happened, he said: We had this idea of a veto over all state laws, which I think is imperative. He went on and explained why he thought past confederations had failed and why this was necessary. He said: But we didn’t adopt it. He thought the new constitution, even if ratified, would fail, he said within a few years.
Mike: Isn’t that amazing? The “father of the Constitution” was pessimistic about its prospects. Another point that I wanted to bring up today about the start of the Federal Convention and the 226th observance of it, and there won’t be any, I suspect outside of this show. Maybe if you go to Independence Hall tomorrow in Philadelphia they may have some commemoration ceremony or tour guides may mention it, but I doubt anybody else is going to say anything about it. I’m reading the log of who was there on the 25th. I notice that New York, New Jersey, Pennsylvania, Delaware, Virginia, North Carolina, and South Carolina are in attendance. This means that Rhode Island didn’t send any delegates. They didn’t want anything to do with it. This means the New Hampshire delegation, which included the great John Langdon, had not shown up yet. This meant that the Georgia delegation had not shown up yet. Connecticut and Roger Sherman hasn’t shown up yet. They start proceeding the business and they start voting on things. What happens when New Hampshire and Connecticut and Georgia show up? Are they shocked when they find that there is a national plan on the floor?
Gutzman: Those states are going to be among the stalwart opponents of the whole idea of a national government, especially Roger Sherman of Connecticut. There’s actually a fabulous new book about Sherman by Mark David Hall that I encourage anybody who’s interested in this subject to read, of course after James Madison and the Making of America. It shows that Sherman was Madison’s chief antagonist in the Philadelphia Convention. Among other things, it’s well-known that Sherman was the father of what’s called the Connecticut Compromise, from which we get the actual structure of the congress, down to the adoption of the 17th Amendment in 1913. That explains why the Constitution did not have bicameral, all-powerful veto over all state laws and legislatures like Madison envisioned.
The interesting thing that Hall notes in his book about Sherman is that this wasn’t something that Sherman came up with in Philadelphia because there was a division between delegates from large and small states over apportionment of Congress; rather, Sherman had proposed this idea years before. He thought the Confederation Congress should be changed so that there would be one house apportioned by population and another in which states had equal votes. He was ready to dump that idea off. Besides that, he wanted Congress to have limited powers and so on. I think it’s maybe more accurate to think of Sherman as the father of the Constitution.
Mike: You may recall also, ladies and gentlemen, that Roger Sherman was on that august body that we call the Committee of Five. The pedigree of Roger Sherman as a founding father is so underrated. One of the things that I’ve discovered afterwards in researching this and talking about it and fleshing it out is that Sherman’s great grandson, a man who went by the name of George Frisbie Hoar. Frisbie Hoar made a speech around 1901 or 1903. His speech was in protest of the subjugation of the Philippines. In that speech, Frisbee Hoar keeps referencing his great grandfather Roger Sherman. He keeps quoting him. He says: I’m going to read to you from the Declaration of Independence the great work of the patriots of ’76, of which my great grandfather was a member. In this we find admonishment against going hither and yon and trying to subjugate people in foreign lands. Roger Sherman obviously is not accredited the stature among the founding fathers, as we call them, that he amply and richly deserves, is he?
Gutzman: Sherman is the only man who was involved in writing the Declaration of Independence, the Articles of Confederation, and the Constitution. Besides that, he was also actively involved in the First Congress in writing the federal Bill of Rights. He had significant roles. It’s not as if he was George Bush the elder kind of sitting there and doing nothing through a succession of important offices. Sherman played a significant role, as I mentioned before in the Philadelphia Convention, and the same was true in drafting the Articles of Confederation and the U.S. Bill of Rights.
The one contribution that Sherman made to the ultimate shape of the federal constitution was that in the First Congress, Madison, having been chastened by his home state constituents with the rejection for the U.S. Senate and barely being elected to the U.S. House, finally had changed his position and proposed there should be a bill of rights. Sherman continued to argue that this wasn’t necessary, but he said: If we’re going to have amendments to the federal constitution, we should not sprinkle them through the Constitution. Madison’s idea had been if we’re going to have an amendment about the right of trial by jury, we should put that in Article III, and if we’re going to have an amendment about Congress only having the powers that are expressly granted, we should put that in Article I.
Sherman says: No, I don’t think we should do that. This won’t have been adopted by the same august authority that adopted the original Constitution. It’s not going to be the people in the ratification convention who agree to these amendments as has been the case in regard to the main body of the Constitution; rather, it will be the Congress and the state legislatures. He said: I think we should just tack them onto the end of the Constitution. That’s why we have not some portion of Article III where we can find change to our right to trial by jury, but instead the 6th and 7th Amendments, or can’t make reference to Article I when it comes to the right to freedom of speech and so on. This is one of many, many ways in which Sherman’s hand is still evident in the shape of the federal constitution.
Mike: Very interesting. One further note on that, most of your state constitutions also follow that tradition. I know in Louisiana, because I am still updating this, we have currently 283 amendments that are tacked onto the end of the Louisiana Constitution of 1974. The amendments in this state are used as basically — the legislature doesn’t want to be accused of passing anything and being made to stand for reelection on their elections, so they put everything up for a ballot initiative. [mocking] “You people, you go out there and vote on it. It’s all yours now.”
I want to move on and throw a couple of modern-day questions at you that have to do with the Constitution. On Wednesday, a woman who goes by the name of Lois Lerner was summoned by Congress in a hearing about the Internal Revenue Service. She declined to answer the questions of the Congress by pleading the Fifth Amendment to the U.S. Constitution, the right to not incriminate herself. I was going out on a lark and a limb on this. Even in two days of research, I haven’t been able to flesh out fully the case and the argument that I was trying to make.
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I told the audience on Wednesday, if you understand the first ten amendments were aimed squarely at the federal government — they weren’t ever aimed at the state legislatures or the people of the states; they were aimed to restrain the federal government. When someone that is in the employ of Congress, which if you work for the IRS you are in the employ of Congress basically, just think of this in terms of an employer/employee relationship. Ms. Lerner works for Mr. Isa. She works for the Congress and all 535 members. It seems to me that, if I read the Fifth Amendment correctly, that the Fifth Amendment was for the people of the states to use if the federal government went to harass them. Where am I right? Where am I wrong?
Gutzman: I think it applies to anybody who’s worried a federal executive might be coming after them for violating a federal statute. In general, if somebody is making a valid reference to the Fifth Amendment’s self-incrimination clause, it means that they’re conceding it’s likely they could be prosecuted for having broken some federal law. You’re not going to invoke the Fifth Amendment in general if you don’t think you might be exposed to prosecution for violating federal law. I do think it could be validly invoked by a federal employee. We’ve seen that many times. I don’t know exactly what kind of violation of federal law she might be accused of having committed. I guess there’s probably going to be further news about her in this regard.
Mike: Let’s move to the First Amendment. The First Amendment, again aimed squarely at Congress, and this is something that you are familiar with. The First Amendment says “Congress shall make no law.” There was an act that was passed in 1917 called the Espionage Act. It was followed up in 1918 by the Sedition Act. This is the meat and taters of Chapter One of Who Killed the Constitution? When you hear that Eric Holder and the Injustice Department are ordering the surveillance of and attempting to suppress members of the press in their reporting on the machinations of the federal government, using and citing the Espionage Act, wasn’t the Espionage Act a breach of the First Amendment, and certainly wasn’t the Sedition Act that followed it an even more severe and pointed breach of the First Amendment?
Gutzman: Well, I think virtually everybody now thinks of the Sedition Act of 1918 as being a shameful recrudescence of the Sedition Act of 1798. One of the very, very few places in which I agree with the late and unlamented Justice William Brennan is when he said that the decision of history has been that the Sedition Act of 1798 was unconstitutional. I don’t think there’s any argument about the question of whether the Sedition Act of 1798 was unconstitutional. To my mind, invoking these shameful World War I era statutes shows a tin ear. I don’t know the extent to which Attorney General Holder is familiar with the history of the United States, but I should think he could find some other way to do what he’s wanting to do than to make reference to these statutes. I think that there could be an act of Congress rescinding them. It seems to me that this is totally undesirable. Like you, I find that very troublesome.
Mike: Final question for Professor Kevin Gutzman today. Again, tomorrow is the 226th anniversary of the start of the Federal Convention of 1787. There was also an act of congress that was passed on the 14th of September 2001 called the Authorization to Use Military Force. I looked this up and Ron Paul actually voted for this. In your view, was the Authorization to Use Military Force, was it constitutional at the time? If it were, wouldn’t that then basically amend Article I, Section 8 and amount to Congress conceding its power to declare wars and then to write the rules and regulations of the naval and land forces, conceding it to the executive branch?
Gutzman: Well, no, I don’t think so. The reason is the situation that the federal government faced after September 11, 2001 was that there was this military threat from a non-state actor. You couldn’t declare war on it because it’s not a government. What they did was they essentially said the president could go after what amounted to pirates and, in my opinion, string them up wherever you find them. Historically international law and before that the law of nations said that pirates could be hanged on the spot. You didn’t have to give them free ACLU attorney, a nice bed and breakfast, air conditioning at their poolside accommodations at Guantanamo and so on. I don’t think there’s anything unconstitutional about empowering the president to seek out members of Al-Qaeda and kill them. I think that’s true whether he’s doing it with the Marines or with Delta Force or with a drone. I don’t have any problem with that myself at all. I don’t think there’s any constitutional issue once Congress told him he could do it.
Gutzman: The question comes in when the president takes the authorization beyond the immediate purpose and says: What we’re going to do now is give little girls in Afghanistan schools and try to establish a democratic government in Afghanistan. That exceeds the limit of what the congress told him he could do. When it comes to what they actually said he could do, that’s what your question was about, which is go out and find members of the Taliban who have been important in housing Al-Qaeda or go out and find members of Al-Qaeda and kill them, again, I don’t think there’s any constitutional problem with that. The Constitution says that Congress can define piracy. Historically, since the ancients, civilized governments, when they’ve found pirates, have hung them by the nearest yardarm, and I don’t think there’s any problem with that.
Mike: But finding pirates doesn’t have anything to do with invading other foreign countries, does it?
Gutzman: Well, again, the issue we have in Afghanistan is that the Taliban was giving Al-Qaeda a place where they could conduct their training. Although the Taliban was not Al-Qaeda, it amounted to an adjunct of Al-Qaeda. Myself, I think the invasion of Afghanistan should have been authorized by a declaration of war. That, again, is not the same as — to my mind that’s distinct from the authorization to go after Al-Qaeda.
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Mike: I don’t think anyone disagrees with the authorization, I certainly don’t, of going after the individual actors and have the president, because he does have to act in that regard. It seems to me that the AUMF is now used to justify almost any and everything, including going after Muammar Gaddafi.
Gutzman: To my mind that’s a different issue. It’s certainly true that the presidents, both Bush and Obama have — if you read the Authorization for Use of Military Force against Iraq, you’ll see that it’s about a military threat to the United States. It has nothing to do with the ten-year occupation and trying to ensure the country didn’t break up into three distinct parts and all this other stuff the U.S. executive branch decided to do. To my mind, those weren’t authorized by Congress. Again, I think going after Al-Qaeda wherever it’s found is a perfectly legitimate function of the federal government. I think Congress — the fact that Ron Paul voted for it is an indication that it’s probably legitimate if you think about it. Not to say that that’s always true, but he was very hesitant to vote for any kind of force.
On the other hand, taking down the Taliban government, that looks like a distinct operation, and to my mind there should have been a declaration of war on the Taliban, and why not? Why shouldn’t the president go to Congress and say: Since you’re the Congress, it’s up to you to decide whether there needs to be a declaration of war against the Taliban. In my mind, the Taliban has been housing Al-Qaeda and effectively made Al-Qaeda an adjunct of the government of Afghanistan. That’s more or less the way Madison phrased his war message to Congress in 1812, respecting the fact that it’s for Congress to make this kind of a decision, but saying essentially I think this is a decision you have to make. Congress should have declared war on Afghanistan. That’s my feeling. I think that’s a different matter from what’s been going on in Iraq, which probably like 90 percent of Americans who have paid any attention, was attacked for reasons we weren’t told or attacked for reasons that proved to be invalid. Of course, like you, I opposed it from the beginning.
Mike: That’s all the time we have today. Happy start of the Federal Convention day to you, sir.
Gutzman: Let’s just be glad that Sherman and Mason and their pals won.
Mike: How is the new work coming along? It’s kind of changed form since the last time we talked, I think.
Gutzman: I’ve decided that rather than have the book be about the conflict between Jefferson and Hamilton in the 1790s, it’s now going to be called Thomas Jefferson: Revolutionary. It will be following Jefferson from conception to his inauguration as president. It’s going to show in what ways Jefferson was a revolutionary, whether it was political, artistic, scientific, whether it had to do with the federal level or the State of Virginia. To my mind, this was a more interesting subject. What this does is push off a little bit the completion date, but everybody is very enthusiastic about the new project. I’m happy to be launched on it.
Mike: We look forward to reading it. Thank you very much. Have a blessed Memorial Day Weekend.
End Mike Church Show Transcript