Wednesday, November 11, 2009

The Founders' dilemmas

Name a text — other than the Bible — that is more revered and less understood than the Constitution of the United States.

Can’t? I’m not surprised. But if you were inclined to enlarge your understanding, you could do worse than to turn to Richard Beeman’s Plain, Honest Men: The Making of the American Constitution (Random House, 514 pages, $30). Professor Beeman, who teaches at the University of Pennsylvania, has produced a highly readable, thoughtful account of the Constitutional Convention of 1787.

It is an account that may trouble contemporary liberals and conservatives alike.

Liberals, because the Founders as a group thought that we ought to be governed by educated white male property owners. They were not democratically minded; indeed, they were highly suspicious of the public. The tension that troubled them throughout their deliberations that summer rose from the attitude of the “archetypal old republican — intensely fearful of concentration of power in the hands of just a few but at the same time convinced that ordinary citizens lacked either the intelligence or the virtue to govern themselves.” Thus, for example, they repeated voted down proposals to have the president elected directly by the people and constructed the creaky machinery of the Electoral College.

Conservatives, because Professor Beeman’s account offers no comfort to the legal Originalists who argue that our understanding of the Constitution should be limited to the intentions of those fifty-five men in Philadelphia. Unfortunately, they were unable to come to a common understanding at the time of the convention about some of the basic language of the document, and some delegates strongly attacked its provisions during the debates on ratification. Moreover, James Madison, revered as “Father of the Constitution,” went to Philadelphia advocating a stronger central government and subsequently opposed many of the consequences. Which Madisonian “intent” should prevail?

What is impressive in Professor Beeman’s book is how earnestly these fifty-five men addressed themselves to the issues of self-government, how they struggled amid the summer heat in confined quarters to rise above narrow interests, how they gradually moved to an understanding of separation of powers and checks and balances, how they framed a document with enough flexibility to endure for more than two centuries with comparatively few amendments, and how they provided better than they knew for an expansion of liberty and political autonomy.

The tragic element is their fatal compromise on slavery. It was in part a purely political measure; the delegates had every reason to expect that without some protection of slavery, South Carolina and Georgia would not come into the Union. But in larger part it was a failure of imagination: Even those delegates who saw slavery as a great evil could not comprehend how to untangle the economics of it or conceive how white and black Americans could live together in freedom and equality.

It is refreshing, in a time when ignorant and ahistorical people say that we should disregard Washington and Jefferson and Madison because they were slaveholders, to see Professor Beeman explore how these well-meaning men were limited by the culture and perspective of their times. It might help us to develop a little humility to consider the ways in which we, too, grapple ineffectively with our gravest problems because of our failure to see beyond our cultural blinkers.


  1. The lament about how "even those delegates who saw slavery as a great evil..." implies that any but a very few of these gentlemen had even the most remote interest that we might actually "live together in freedom an equality".

    Dig out your DVD of the play "1776" and fast forward to the scene when the Southern gentlemen regale us with "Cool, Cool Considerate Men".


  2. Thanks, John, for making me aware of this book. I will grab it for reading over the holidays.

    Isn't a failure of imagination at the root of our problems today, too? So many who cite the founders' intent seem to have decided that, because they themselves are virtuous and correct, the founders' intent must align perfectly with their own views.

  3. The founding fathers did understand that the Constitution was the most basic and foundational of laws. If the meaning slips about here and there, it is a foundation of sand. We should keep that in mind. Whatever their differences in debate, what was adopted was - - what was adopted. The words had meanings that were known to them and they understood what they proposed.

    They also understood that changes might be desirable so they provided for amendment. They did not put in a clause that permitted for changing meanings of the words and structure of the document, they provided for changing the document through amendment. They didn't even provide for the courts to change the document, as has become popular in recent years.

    A last note - The Supreme Court is not empowered to have the last word on the Constitution as Chief Justice John Marshall commented. Each member of each branch is responsible for interpreting the Constitution and comporting themselves within its dictates. Were they to do this, we would not have had McCain-Feingold Campaign finance pass in hopes that President Bush would veto the bill. But President Bush was demonstrating his best "let's all get along" mindset when he signed the bill with the sure knowledge that The Supreme Court would toss out the sections that offended the First Amendment. Nobody took on their responsibilities. Until recently, when the Court began to exercise those responsibilities. We'll hear rending of garments and gnashing of teeth when they begin to recognize the unconstitutionality of limiting free political speech, but we will be a more free nation for it.

  4. Failures of imagination are indeed important, but failures of nerve are even more so: the inability to (as my Irish ancestors had it) take the bull by the tail and look the future in the face.

  5. Bruce Robinson: The words adopted were indeed the words adopted, but those who agree on words may know full well that they disagree on interpretations.

  6. Campaign finance reform will not be rendered unconstitutional unless and until the Supreme Court decides that money and speech are not the same. I don't know by what torturous route a previous court leapt to that bizarre conclusion, but that is what we as a nation live with today. Dorothy Parker, who for the record was not a member of the nation's highest court, once observed that there were some days when she felt very Russian, and wanted to sit atop a cold stove and moan all day.There are some Court decisions, and that was one of them, that make me want to rush to the kitchen.