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Welcome to Consider the Constitution, the podcast that cuts through the noise and provides insight into constitutional issues that directly affect every American.
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Hosted by Dr.
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Katie Crawford Lackley and featuring interviews with constitutional scholars, policy and subject matter experts, heritage professionals, and legal practitioners, we examine the rights and responsibilities of citizenship.
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Consider the Constitution is brought to you by the Robert H.
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Smith Center for the Constitution at James Madison's Montpelier.
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Hello and welcome back to Consider the Constitution.
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I'm your host, Dr.
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Katie Crawford Lackey, with James Madison's Montpelier.
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The Constitution began as an experiment.
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When the delegates gathered in Philadelphia for the Constitutional Convention in 1787, they were trying to solve very real problems with the government they already had.
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But they did not all agree on what those problems were or on what kind of government they should create to address them.
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The constitution they produced was in many ways a beginning rather than an ending.
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And once the constitution went into effect, Americans had to figure out what this new system of government actually meant.
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They tested its limits, debated its principles, and confronted questions that could not have fully been anticipated in Philadelphia.
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Now, few people give us more fascinating insight into that process than James Madison himself.
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He helped design the Constitution, defended it during ratification, he served in the new government, and then spent decades thinking and writing about the constitutional system he helped create.
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His life reminds us that the Constitution was not simply a document produced in 1787, it was actually a system whose meaning continued to be tested, debated, and reformed over time.
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And I think this raises a fascinating question.
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How did Americans in the founding era understand the Constitution?
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And how did those understandings change once the Constitution became a lived reality?
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And that is the subject of our conversation today with Dr.
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Jonathan Genapp.
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Dr.
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Jonathan Gennapp is professor of history and law and the Nihon and Jenny Fan Raj Civics, faculty fellow, and undergraduate teaching at Stanford University.
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He specializes in the constitutional, legal, intellectual, and political history of the early United States, with a particular focus on the origins and development of the US Constitution.
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He is the author of The Second Creation, Fixing the American Constitution in the Founding Era.
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And against constitutional originalism, a historical critique.
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He's also currently writing a book on the history and meaning of the Constitution's preamble.
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So, Jonathan, I can't imagine a better person to be talking about this subject with today than you.
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So thank you for joining us virtually all the way from California.
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Thank you so much for having me.
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Now I want to dive in, but I think it's important to kind of clarify some definitions first.
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So if we rewind the clock and think back to 1787, 1788, what did constitution mean to these delegates who were essentially drafting what is today our structure of government?
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Did they see it as kind of this finished document when they were wrapping things up in Philadelphia?
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So the word constitution itself and the concept it was picking out was somewhat fluid in the 18th century.
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It had a set of different meanings that, depending upon which one you're referring to, could imply different things about what you think you're up to in writing a constitution, constructing one.
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So the standard definition that had been around a long time was more descriptive and structural.
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The constitution of government was like the constitution of a building or the human body.
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If someone says your constitution looks healthy, they're talking about how a system is itself as sort of reached equilibrium or is working in the way it's supposed to.
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And if the constitution is defective, then it sort of has structural issues and might collapse.
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So for a lot of the 18th century, and Americans coming out of the British tradition, which really leaned heavily on that understanding, would talk about the constitution of government as being how the thing is literally constructed.
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So a constitution is a description of how things work and should work in terms of a system of government.
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But there's also another meaning which is less descriptive and is more prescriptive, which is the idea that the constitution is fundamental law, that it is the set of rules, the super rules for the people who make the rules.
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So the people who will be working in the government, this will be the higher law that explains what they can or cannot do.
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So one is sort of more in the mode of maybe the discipline of political science, how things hang together, how they're built.
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One seems more law-like, a set of rules that are layered on top of another rules.
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And constitution tended to blend the two things together by the time the delegates are writing one in 1787.
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But depending upon the context, they might emphasize one or the other.
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This is really helpful context because, you know, I think today many Americans think constitution, oh, it's this thing, it's the document that defines who we are.
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But knowing that it's much more than that, especially in the context to the Constitutional Convention.
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Now, do we know James Madison specifically how he personally understood what a constitution was throughout that summer, that he's playing such a pivotal role in drafting this document?
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Yeah.
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So you you had previously asked if people at the time sort of saw it as a finished thing.
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And one of the things that I think defines James Madison's understanding in 1787 and thereabouts is he tended to downplay that possibility in part because he really saw the constitution as a system that the delegates were constructing, both a system of government, but especially a system of federal constitutionalism, that it's going to be you're going to have a central federal government, and then you're going to have the surrounding state governments, and they're going to operate with one another.
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John Dickinson, a fellow delegate at the time, often likened the federal system to the solar system, that each of the individual planets has their own particular orbit, which is different than the other ones, but they're held in this single system by the gravitational pull of the sun.
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So it's about structuring it such that that gravitational pull is strong enough that none of the individual planets fly off, but not too strong that they get swallowed up in the middle.
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Madison was really animated by these sort of structural, metaphorical ways of thinking.
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But there was another element that was really important.
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He said we need to replace the Articles of Confederation with a true political constitution, is what he said in the middle of the Constitutional Convention, by which he meant we need to recognize that one of the reasons we're here, one of the reasons the United States is in such peril, and we have to hit this big reset button, not what any of us planned a decade ago.
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I mean, this is pretty dramatic stuff in the summer of 1787.
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We're just going to redo the entire first constitutional system.
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The problem was, among other things, the Articles of Confederation wasn't actually a constitution.
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It was much more like a federal treaty.
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So think today about how the European Union works.
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That is something much closer to a treaty organization held together by sovereign states, the individual parts, in this, in the example of the European Union, the various nations in Europe in the context of the late 18th century, the individual states, those are the places that have sovereignty and they have constitutions.
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And they have confederated through essentially this peace and trade treaty called the Articles of Confederation.
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And that's not going to work.
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It's not just that the national government doesn't have enough power under the Articles of Confederation, it's that the Articles of Confederation isn't a true constitution, by which Madison meant it's not a complete system of government with a legislative, executive, and judicial branch, and it doesn't have true independent legal authority.
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So he was emphasizing that the Articles isn't really a constitution because it's a creature of the states.
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For the federal constitution to be a constitution like the state constitutions, it needs to go to that ultimate reservoir of authority in America, the people of the United States themselves.
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And that's why they need to weigh in through the ratification process, because only then can it earn the definitional label a constitution rather than something much weaker like a treaty.
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And I'm so glad you noted this.
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You know, as you said, this is a big deal.
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They are doing something revolutionary, uh radical almost, scrapping the government that got them through the revolution and creating this new document, this founding document.
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But I think as often happens, Madison was great at theorizing.
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And he did a lot of that in the process.
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But it's a whole nother thing to put it into practice.
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And credit to him, you know, he did that by his service in Congress and the executive branch as president.
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But when we think about what it actually meant to put it into practice, what were the big constitutional questions that Americans found themselves wrestling with that hadn't necessarily been settled after this convention or even after it was ratified?
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What was left open?
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Yeah, I mean, maybe the more operative question is what wasn't left open?
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Because there was so much that needed doing.
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And Madison wrote a letter in 1789 saying we're in a wilderness without a single footstep to guide us, with the emphasis being there is so much uncertain here and no obvious rule book or playbook by which to proceed.
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How are we going to do this?
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But Madison himself, prior to the spring of 1789, connecting his work at the convention to this moment when he joins the first Federal Congress and plays such a pivotal role in taking the Constitution into effect, had emphasized that this was unavoidable.
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Among the criticisms the Constitution received from its skeptics, those who became known as anti-federalists, was not just what the Constitution said, but how it was written, that it seemed so ambiguous, uncertain, indeterminate.
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It was this piece of play-doh or clay that the governing party could mold into any shape they preferred.
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It was almost studiously ambiguous.
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And Madison responded in many different ways, but perhaps most prominently in Federalist 37, when he said, uh, look, building a constitution is difficult.
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There are all these big concepts that people don't agree on the precise meaning of separation of powers, federalism.
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And that is compounded by the fact that human beings themselves are imperfect and communicate with one another through this deeply imperfect medium known as language.
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No matter how clear you try to be, when you're talking about complex stuff, it's not going to be perfectly clear and other people are going to read different things into it.
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So the moral he drew from this is you can spend all the time you want, a thousand years trying to fully nail down every detail of a constitution and make it absolutely clear.
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And certain things are going to remain obscure and uncertain until, as he puts it, they are liquidated or settled or clarified through a series of debates, deliberations, adjudications.
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So he said, no matter what we do, it is going to be an unfinished work in progress, and it will have to be finished by the people who actually put it into effect.
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Well, he learns that he was absolutely right about that.
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The next spring, when he sits in the first federal Congress and he looks around and with everyone else and realizes there are so many big things we need to sort out.
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So I'll just emphasize a couple.
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So one is the very first debate that engulfs the first federal Congress that Madison finds himself in rather unexpectedly, which remains quite relevant because it was just the subject of a Supreme Court decision this summer, which is who gets to remove executive officers?
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The executive branch, according to Article II of the Constitution, is something of a skeleton.
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Obviously, there's going to be a president of the United States.
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It certainly anticipates that there are going to be different executive departments and they will be run by people who head them.
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But exactly how big the executive branch will be, how many departments there will be, unclear, leaves it largely to Congress's discretion.
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But one thing that it's notably silent on, it says that those people who will serve, executive officers, will be appointed by the president with the advice and consent of the Senate.
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So the Secretary of State, if the Congress decides, as everyone knows they will, to have a State Department or a War Department or a Treasury Department.
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When they appoint somebody to run it, the Constitution says very clearly how that process will work.
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It says absolutely nothing about how these people can be removed, if at all, other than for high crimes and misdemeanors if you choose to impeach them.
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So Madison writes the legislation that will be the bill that sets up the Department of Foreign Affairs and says that the person who runs the Department of Foreign Affairs will be removable by the president.
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And some people object and say, on what authority did you add that?
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The Constitution doesn't say they'll be removable by the president, it doesn't say anything at all.
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So it sets off this whole debate about what do you do when something that seems important?
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Like this is practically important, whether or not Secretary of States essentially serve for life like Supreme Court justices, or they can be removed.
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And if so, by whom?
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Is it by the president, by the president with Senate?
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Is there some other procedure?
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But the Constitution's silent on it.
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So it's not just the question of removal, it's this question of what do we do in the face of constitutional silence?
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Do we fill it?
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Do we try to interpret the Constitution in such a way to figure out how it's quietly speaking to the issue?
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And it leads them into this big, kind of prolonged debate where it's not entirely clear how to proceed, and the debate is not really resolved at all.
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They finish the debate with there is not a majority view for any of the positions that have been floated in Congress to that point.
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So it is a clear example of how there are big parts of the Constitution that aren't clear.
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The biggest one by far, though, which really comes up when Alexander Hamilton, who's the first Secretary of the Treasury, takes his big swing at trying to address the major issues that have put the United States in crisis and made a constitution necessary in the first place, this sort of crippling economic crisis.
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And one of the pillars of his big economic program to salvage American public finances and kickstart the economy is to charter a national bank.
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And a bunch of people in Congress, almost entirely in the South, are really worried about this because they're worried it will transform the United States from a primarily agricultural to commercial nation, which will transfer economic and political power towards the more commercial, mercantile North.
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They're also worried that this will lead to too much centralization.
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It will make the national government too powerful.
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And this is especially a problem for Southerners who are so dependent on the institution of slavery.
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They're worried if the federal government can set up a national bank, can they also potentially interfere with the institution of slavery?
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How limited is the power of the national government?
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So it sets off this big debate, which also has never gone away, about what are the limits of national power?
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How much can the national government do?
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And it soon becomes clear there as well that there are certainly different things one can say about that question, but it's by no means settled.
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Some people, like Madison himself, emphasizes well, this is a system of enumerated powers.
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Unlike the state constitutions, which give a general governmental power to the state governments, the federal government can only do things that it has been expressly given permission to do.
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So there's a list of enumerated powers given to Congress.
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Where does it say you can charter a bank?
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It doesn't say that.
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It does end by saying that in addition to the enumerated powers, Congress will have power to pass all laws necessary and proper to carry out its other powers.
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But Madison says, last I look, the word necessary means necessary, not convenient.
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And maybe a bank is a convenient way to do the other powers, but it's definitely not necessary.
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But people on the other side who support Hamilton respond and say, and this is partly what gets at the uncertainty and flux of the moment, they say, you guys are just approaching this all wrong.
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You're reading the Constitution as though it's kind of like the Articles of Confederation, as though the state governments retain almost all the power, and therefore anything given to the national government should be interpreted very narrowly, strictly.
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And they said, that's not what we set up all those years ago, four years earlier in 1787.
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We set up a national government that could ensure the nation would survive.
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It was not going to be like the Articles of Confederation, where the states could imperil the nation.
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It was going to give the national government all necessary national powers to ensure the union would not break apart.
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So, one, by looking at the enumerated powers list, you're already reading it the wrong way.
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This is a national constitution, so it has implied national power that doesn't have to be enumerated.
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And two, it doesn't say absolutely necessary.
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It says necessary, which means plainly adapted or efficient or something like that.
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The government needs flexibility to deal with crises that it can't anticipate.
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So we get this big debate over, well, what kind of a thing are we even reading?
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Are we reading a contract between the states?
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Are we reading a national charter that was made by the whole nation together?
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And depending on your answer to that question, what am I reading?
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You're going to read it differently.
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And it's pretty clear nobody quite agrees on what they're reading.
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Oh, I love the examples that you gave, both contemporary, you know, this past summer, these questions that the nation is asking versus hundreds of years ago, the debates Madison Hamilton and their respective parties are having.
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And back to the point about language that we began with is how are we defining, for example, necessary and proper?
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It depends.
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And, you know, even Madison himself is known to change his mind.
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And I'm wondering if you can tell us about, especially as he's serving in government under this new constitution that he was so pivotal and creating, is he changing his mind?
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Are there some things that he's finding, oh, that's more theoretical versus now that I'm actually doing this?
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So what do we know about that?
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Yeah.
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So that is in some ways one of the biggest questions of constitutional history of the 1790s.
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Some people call it the James Madison problem.
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Did he dramatically flip on almost everything?
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Or if he remained consistent, what does that tell us both about how he thinks, but also what's happening around him?
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So clearly, if we just take some snapshots from 1787 to the end of the 18th century, it sure looks like somebody who is saying different things than they once did.
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In 1787, his big complaint is the state governments are ruining the United States.
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They're sort of cesspools of faction.
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They're not selecting for statesmen who can rise above petty interest and see the big picture.
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That's among the reasons we need a stronger national government, including with a power that he isn't able to get into the Constitution, but he desperately wants a national power to a negative or a veto on all state laws.
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So that's a pretty dramatic nationalist position, a national government that can veto any state law.
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Okay, well, a few years later in the bank debate, now he's suggesting the powers of the national government are more limited than the people who had supported the Constitution are currently claiming, like his friend and one-time co-author of the Federalist Papers, Alexander Hamilton.
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If we jump ahead a couple years after that, Alexander Hamilton is defending a robust view of presidential power over foreign affairs during the neutrality crisis when the French Revolutionary Wars have engulfed Europe in warfare and the United States has to decide.
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Are we going to be allied with any one of these European powers, including France, which claims to be fighting the next Republican revolution?
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France had supported the United States in its Republican revolution.
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Or as Washington and Hamilton thinks is important, are we going to remain neutral?
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But, you know, Madison fights Hamilton on that front too.
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Later in the 1790s, he joins together with his friend Thomas Jefferson in the Virginia and Kentucky resolutions to protest the Alien and Sedition Acts.
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And in what seems like a total inversion of the 1787 position of the national government can veto state laws.
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Now he's saying that the state governments can judge the constitutionality of federal laws like the Sedition Act.
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He doesn't say they can nullify them, as later states' rights advocates of the 19th century will.
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But he says they can judge them, they can declare them unconstitutional.
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So is Madison just flip-flopped here from the hardcore nationalist to a states' rights southerner?
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Whatever the answer to that is, the right way to think about it is to take seriously what Madison would say is going on, which is getting back to the idea that he really has the instincts more of a political scientist than a lawyer.
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He sees constitutions as systems that are dynamic.
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If different aspects of the system begin to operate differently, then you need to update how you think about how the whole thing works.
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And a few things happen.
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One, he would say, I was all for expansive national power that was necessary to address the crises of union.
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That doesn't mean I was ready to swing the pendulum as far in the other direction as Alexander Hamilton and his centralizing friends are.
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So because they're going so far, me, Madison, I'm standing in the same place, and I'm saying I'm against people who think the national government should have no power, but I'm also against people who want to say the necessary and proper clause is just a blank check to govern as you see fit.
00:23:08.400 --> 00:23:11.680
When it comes to the presidency, this is particularly interesting.
00:23:11.680 --> 00:23:19.759
Because Madison's working idea in 1787 and 1788 is that the legislative branch, Congress, will predominate.
00:23:19.759 --> 00:23:26.640
His concern is legislatures in Republican systems of government are, as he calls it, the impetuous vortex.
00:23:26.640 --> 00:23:28.240
They suck in everything.
00:23:28.240 --> 00:23:29.839
They're like the black hole.
00:23:29.839 --> 00:23:34.640
How can you make the other branches strong enough that they even have a fighting chance?
00:23:34.640 --> 00:23:38.559
It's obvious that the legislature's going to predominate.
00:23:38.559 --> 00:23:53.279
But Alexander Hamilton, from his perch in the executive branch in the Treasury Department, shows very clearly, first in basically getting Congress to pick up his financial program and enact it.
00:23:53.279 --> 00:24:03.119
And then on these foreign policy issues I mentioned with the neutrality crisis, it turns out that the executive has powers and advantages that the legislature doesn't have.
00:24:03.119 --> 00:24:05.599
It especially has first mover advantage.
00:24:05.599 --> 00:24:10.880
The executive can move quickly, can just do things that creates a new reality on the ground.
00:24:10.880 --> 00:24:17.119
So in 1793, say Madison is sitting there saying, I thought the legislature would be dominant.
00:24:17.119 --> 00:24:30.880
Hamilton has shown me, not theoretically, but practically, through practice, through experience, that in certain respects, the presidency has all these advantages to reset the rules of the game.
00:24:30.880 --> 00:24:36.880
So this gets Madison to rethink whether or not his views of 1787 were right.
00:24:36.880 --> 00:24:39.440
And he would put it, I'm not abandoning my views.
00:24:39.440 --> 00:24:42.799
I am clarifying and refining them through experience.
00:24:42.799 --> 00:24:45.279
And I think he would emphasize everyone should do that.
00:24:45.279 --> 00:24:47.920
I mean, he says this in the Federalist papers themselves.
00:24:47.920 --> 00:24:53.279
We are doing things that are new that no one's done before, including creating a large republic.
00:24:53.279 --> 00:24:56.480
But we're doing that because we have all these years of experience.
00:24:56.480 --> 00:25:02.160
And every theorist would trade experience for theory if they could have that experience.
00:25:02.480 --> 00:25:09.119
That is one of the most succinct explanations for Madison and his thought process at that period of time.
00:25:09.119 --> 00:25:15.519
Because obviously, you know, we hear that a lot criticism of Madison changing his mind, as you said, flip-flopping.
00:25:15.519 --> 00:25:24.640
But really, I think it shows a very sophisticated and open-minded approach to taking in the context of what's happening.
00:25:24.640 --> 00:25:32.319
You know, and Jonathan, as you've demonstrated through this conversation, these issues are still so, so relevant today.
00:25:32.319 --> 00:25:35.839
We're asking the same kinds of questions, grappling with the same challenges.
00:25:35.839 --> 00:25:48.480
When Americans today debate what the Constitution means, how should we recognize that we're participating in a process that began right after 1787?
00:25:48.480 --> 00:25:55.119
You know, this is not something that just us today, you know, that's dependent upon the present moment.
00:25:55.119 --> 00:25:59.039
This is centuries that we are building on when we think about it.
00:25:59.440 --> 00:25:59.759
Yeah.
00:25:59.759 --> 00:26:06.000
So I think there so these days, it history has always been important to American constitutional interpretation.
00:26:06.000 --> 00:26:09.279
It's it's always been an important source of authority.
00:26:09.279 --> 00:26:18.319
People have always looked to past figures, especially those who established the Constitution and tried to invoke them when convenient to support their positions.
00:26:18.319 --> 00:26:27.839
But that has especially intensified of late as the role of history and especially founding era history has come to play such an outsized role in debates.
00:26:27.839 --> 00:26:40.799
But among the things I'd emphasize that you already underscored is we should actually then go back to the 18th century and see, before even asking, well, what did they think this particular part of the Constitution meant?
00:26:40.799 --> 00:26:44.640
Instead, say, how did they do constitutional interpretation?
00:26:44.640 --> 00:26:47.759
The Constitution does not come with a user's manual.
00:26:47.759 --> 00:26:51.759
It does not say at the end, and here's how you should interpret it.
00:26:51.759 --> 00:27:06.160
So that was left to the first generation of Americans to live under the Constitution to create that process, not just what it means, not just try to figure that out, but figure out how you would go about even figuring that out.
00:27:06.160 --> 00:27:08.640
What rules of interpretation would guide it?
00:27:08.640 --> 00:27:13.759
And what's pretty clear is they began a debate that has never stopped.
00:27:13.759 --> 00:27:24.960
So if we're going to go back to the 18th century to try to resolve our debates as though we're going to find things clear and settled that they didn't debate, we're going to be left wanting.
00:27:24.960 --> 00:27:36.640
Because the same questions we have about how much power did the national government have, what kinds of rights were protected under the Constitution, just how far did the powers of the presidency expand?
00:27:36.640 --> 00:27:39.440
They debated these things no less than we did.
00:27:39.440 --> 00:27:50.079
And you can certainly find cogent arguments on each side, and you can pick those arguments up and say, Alexander Hamilton had it right about presidential power.
00:27:50.079 --> 00:27:56.400
But then you need to explain why James Madison had it wrong and why you're choosing one over the other.
00:27:56.400 --> 00:28:02.799
I mean, for instance, Hamilton said, most foreign affairs powers are by nature executive.
00:28:02.799 --> 00:28:20.640
And because the president of the United States is vested by Article II with the executive power, that means all the unenumerated foreign affairs powers that don't happen to be explicitly assigned elsewhere, like the power to make treaties is explicitly assigned to the president and the Senate.
00:28:20.640 --> 00:28:24.160
But if the Constitution is silent on it, that just falls to the presidency.
00:28:24.160 --> 00:28:32.319
Okay, well, that is what most modern presidents have claimed for themselves, this sort of vast authority over national defense and foreign affairs.
00:28:32.319 --> 00:28:37.759
Well, it should matter that James Madison at the time said, You were completely wrong, Alexander Hamilton.
00:28:37.759 --> 00:28:43.039
A lot of foreign affairs powers are not executive in character, they're legislative in character.
00:28:43.039 --> 00:28:56.480
That is certainly true of deciding whether or not the nation will be at war or at peace, which is what the authority to declare neutrality is, and why the Washington administration was so mistaken that they thought they could unilaterally do it.
00:28:56.480 --> 00:28:58.640
We're not a monarchy, Madison said.
00:28:58.640 --> 00:29:04.640
We're a republic, and as a result, the people's representatives in Congress is the body that gets to decide this thing.
00:29:04.640 --> 00:29:10.319
Alexander Hamilton is trying to transform a republic into a quasi-monarchy.
00:29:10.319 --> 00:29:27.759
Maybe Madison's right, maybe he's not, but we should take the fact that they debated these things so seriously and maybe stop trying to hope that they, these distant ancestors who we mostly see in statues, will resolve disagreements that we continue to have to this day.
00:29:28.240 --> 00:29:35.440
I admit I am one of those people that sometimes I'm like, oh, I just wish I could talk to Madison and maybe he could get some guidance.
00:29:35.440 --> 00:29:36.960
But that's a really good point.
00:29:36.960 --> 00:29:42.160
And historians, constitutional scholars, legal professionals, all of us really.
00:29:42.160 --> 00:29:49.599
I mean, even your lay folks, we do sometimes have this mindset of the founders must have thought the way that I think.
00:29:49.599 --> 00:29:50.960
You know, we just kind of assume that.
00:29:50.960 --> 00:29:56.480
We don't take a step back and say, they actually were in a whole different time dealing with a whole different set of issues.
00:29:56.480 --> 00:30:03.039
Yes, we're grappling with similar challenges, but they were experiencing something very different.
00:30:03.039 --> 00:30:13.839
And I'm curious as we kind of wrap up in this final question, what are we today required in terms of trying to understand the constitution?
00:30:13.839 --> 00:30:15.920
What should we be careful of?
00:30:15.920 --> 00:30:21.200
And what should we as average citizens take with a grain of salt from the past?
00:30:21.200 --> 00:30:23.839
You know, how do we make it our own today?
00:30:24.240 --> 00:30:24.799
Yeah.
00:30:24.799 --> 00:30:43.119
So there are a few things that have been more central to how I try to think about the period and explain it to people that usually, again, because it's such a central part of American civil religion, we are sort of built around our national identity, is so bound up in a story about the founding and a founding moment.
00:30:43.119 --> 00:30:50.880
And we continue to live under the same constitution that is our fundamental law and system of government that we've been talking about on this episode.
00:30:50.880 --> 00:30:55.759
So it's understandable that people see it as sort of a continuous thing.
00:30:55.759 --> 00:31:05.920
And whatever might have changed, the way the founding generation thought about the constitution is not all that different from how we think about the constitution.
00:31:05.920 --> 00:31:07.839
And in certain respects, that is certainly true.
00:31:07.839 --> 00:31:08.960
There's plenty of overlap.
00:31:08.960 --> 00:31:26.960
But I think the important thing is because there were key differences in how people thought in the 18th century about a host of things, if you're really trying to understand what the founding generation was about, if you're trying to understand what James Madison was thinking in 1787 or 1793, assume less, not more.
00:31:26.960 --> 00:31:48.960
Don't just assume, well, they're talking about the same constitution that we talk about today, that the Supreme Court talks about today, that if you went to law school, you learned about in law school, it's the same kind of object with the same kind of characteristics, that is interpreted in essentially the same sort of way, that is understood to be this thing that the judiciary of the United States primarily enforces.
00:31:48.960 --> 00:31:53.359
Rather than assuming any of that, start from the premise, well, did they agree with any of that?
00:31:53.359 --> 00:31:58.240
Actually take seriously what they thought the Constitution was and how it would work.
00:31:58.240 --> 00:32:09.759
And what you start to realize, I think, is you start to see all of the ways in which their assumptions, the things they took for granted, the things they didn't spell out, were very different than our own.
00:32:09.759 --> 00:32:13.680
And then you're forced to reckon with, well, why do we do things that way?
00:32:13.680 --> 00:32:19.599
You know, a big one here is we've long lived under a strong system of judicial supremacy.
00:32:19.599 --> 00:32:25.279
To have a constitution like ours is to have the Supreme Court as final arbiter.
00:32:25.279 --> 00:32:31.680
Few things would have been more surprising to people in the late 18th century than that, especially James Madison.
00:32:31.680 --> 00:32:43.359
He thought the judiciary was important, he thought it would play a vital role, but he didn't think there was any way that the judiciary could meaningfully resolve big constitutional disputes.
00:32:43.359 --> 00:32:56.160
He'd be quite shocked about that, which doesn't mean it's wrong that we do that, but it forces us to reckon with well, here's all these people who we claim had really good ideas, and they thought the system would work very differently.
00:32:56.160 --> 00:32:59.359
James Madison thought Congress would predominate.
00:32:59.359 --> 00:33:06.799
People joke now Congress doesn't do anything other than vote to keep the lights on, that the president is muscular and strong.
00:33:06.799 --> 00:33:18.640
We have a massive administrative state in the executive branch that does a lot of our federal regulation, and we have a judiciary that is constantly weighing in on big questions.
00:33:18.640 --> 00:33:24.960
I don't think that in any way jives with the constitutionalism that James Madison expected to come to pass.
00:33:24.960 --> 00:33:33.839
Again, doesn't mean his way of thinking was right, but we should take seriously that his assumptions and our assumptions were different.
00:33:33.839 --> 00:33:39.680
And we should then try to learn from that rather than say, well, what answers do you have to give us, James Madison?
00:33:39.680 --> 00:33:41.920
Instead, say, how did you think about these things?
00:33:41.920 --> 00:33:45.680
And given you thought about them differently, is there something we're missing?
00:33:46.000 --> 00:33:49.519
Jonathan, this was such an insightful conversation.
00:33:49.519 --> 00:33:54.559
I was taking copious notes throughout our conversation, so I can explore more later.
00:33:54.559 --> 00:34:06.480
But the big takeaways I got from this conversation, the encouragement to ask questions, to really go back, look at the history, to pursue our curiosity, be curious about the past.
00:34:06.480 --> 00:34:09.920
Don't assume, assume less, as you said.
00:34:09.920 --> 00:34:13.760
And then also engage in dialogue.
00:34:13.760 --> 00:34:27.440
Do that critical listening speaking with others, others of different perspectives, and maybe use the founders and what they cared about as a guide, but not as the template with all the answers.
00:34:27.679 --> 00:34:28.159
Exactly.
00:34:28.159 --> 00:34:29.599
I think you put that perfectly.
00:34:29.599 --> 00:34:36.320
And we're at a a lot of people think we're in a perilous moment in the nation's history that calls for a kind of renewal of civic practice and values.
00:34:36.320 --> 00:34:38.719
Well, nobody understood that better than the founders themselves.
00:34:38.719 --> 00:35:04.079
They were trying to create a system that could tolerate the fact that people would invariably disagree and that the people at large would have to be sufficiently educated and informed that they could make sound judgments to make a system of republicanism where the people rule actually survive, and they wouldn't have to resort to a system of monarchy or something else where the people were given less authority.
00:35:04.480 --> 00:35:06.159
Well, thank you so much, Dr.
00:35:06.159 --> 00:35:09.599
Jonathan Ginat, for joining me today on Consider the Constitution.
00:35:09.599 --> 00:35:11.199
We really appreciate you being here.
00:35:11.519 --> 00:35:12.880
Thank you so much for having me.
00:35:13.119 --> 00:35:14.960
And thank you to all of our listeners.
00:35:14.960 --> 00:35:18.559
Please subscribe and share the show with family and friends.
00:35:18.559 --> 00:35:23.360
And join us again in two weeks as we consider the Constitution.
00:00:01.040 --> 00:00:11.439
Welcome to Consider the Constitution, the podcast that cuts through the noise and provides insight into constitutional issues that directly affect every American.
00:00:11.439 --> 00:00:12.640
Hosted by Dr.
00:00:12.640 --> 00:00:27.440
Katie Crawford Lackley and featuring interviews with constitutional scholars, policy and subject matter experts, heritage professionals, and legal practitioners, we examine the rights and responsibilities of citizenship.
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Consider the Constitution is brought to you by the Robert H.
00:00:31.280 --> 00:00:36.159
Smith Center for the Constitution at James Madison's Montpelier.
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Hello and welcome back to Consider the Constitution.
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I'm your host, Dr.
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Katie Crawford Lackey, with James Madison's Montpelier.
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The Constitution began as an experiment.
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When the delegates gathered in Philadelphia for the Constitutional Convention in 1787, they were trying to solve very real problems with the government they already had.
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But they did not all agree on what those problems were or on what kind of government they should create to address them.
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The constitution they produced was in many ways a beginning rather than an ending.
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And once the constitution went into effect, Americans had to figure out what this new system of government actually meant.
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They tested its limits, debated its principles, and confronted questions that could not have fully been anticipated in Philadelphia.
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Now, few people give us more fascinating insight into that process than James Madison himself.
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He helped design the Constitution, defended it during ratification, he served in the new government, and then spent decades thinking and writing about the constitutional system he helped create.
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His life reminds us that the Constitution was not simply a document produced in 1787, it was actually a system whose meaning continued to be tested, debated, and reformed over time.
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And I think this raises a fascinating question.
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How did Americans in the founding era understand the Constitution?
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And how did those understandings change once the Constitution became a lived reality?
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And that is the subject of our conversation today with Dr.
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Jonathan Genapp.
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Dr.
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Jonathan Gennapp is professor of history and law and the Nihon and Jenny Fan Raj Civics, faculty fellow, and undergraduate teaching at Stanford University.
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He specializes in the constitutional, legal, intellectual, and political history of the early United States, with a particular focus on the origins and development of the US Constitution.
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He is the author of The Second Creation, Fixing the American Constitution in the Founding Era.
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And against constitutional originalism, a historical critique.
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He's also currently writing a book on the history and meaning of the Constitution's preamble.
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So, Jonathan, I can't imagine a better person to be talking about this subject with today than you.
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So thank you for joining us virtually all the way from California.
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Thank you so much for having me.
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Now I want to dive in, but I think it's important to kind of clarify some definitions first.
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So if we rewind the clock and think back to 1787, 1788, what did constitution mean to these delegates who were essentially drafting what is today our structure of government?
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Did they see it as kind of this finished document when they were wrapping things up in Philadelphia?
00:04:04.159 --> 00:04:09.840
So the word constitution itself and the concept it was picking out was somewhat fluid in the 18th century.
00:04:09.840 --> 00:04:20.879
It had a set of different meanings that, depending upon which one you're referring to, could imply different things about what you think you're up to in writing a constitution, constructing one.
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So the standard definition that had been around a long time was more descriptive and structural.
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The constitution of government was like the constitution of a building or the human body.
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If someone says your constitution looks healthy, they're talking about how a system is itself as sort of reached equilibrium or is working in the way it's supposed to.
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And if the constitution is defective, then it sort of has structural issues and might collapse.
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So for a lot of the 18th century, and Americans coming out of the British tradition, which really leaned heavily on that understanding, would talk about the constitution of government as being how the thing is literally constructed.
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So a constitution is a description of how things work and should work in terms of a system of government.
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But there's also another meaning which is less descriptive and is more prescriptive, which is the idea that the constitution is fundamental law, that it is the set of rules, the super rules for the people who make the rules.
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So the people who will be working in the government, this will be the higher law that explains what they can or cannot do.
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So one is sort of more in the mode of maybe the discipline of political science, how things hang together, how they're built.
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One seems more law-like, a set of rules that are layered on top of another rules.
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And constitution tended to blend the two things together by the time the delegates are writing one in 1787.
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But depending upon the context, they might emphasize one or the other.
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This is really helpful context because, you know, I think today many Americans think constitution, oh, it's this thing, it's the document that defines who we are.
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But knowing that it's much more than that, especially in the context to the Constitutional Convention.
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Now, do we know James Madison specifically how he personally understood what a constitution was throughout that summer, that he's playing such a pivotal role in drafting this document?
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Yeah.
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So you you had previously asked if people at the time sort of saw it as a finished thing.
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And one of the things that I think defines James Madison's understanding in 1787 and thereabouts is he tended to downplay that possibility in part because he really saw the constitution as a system that the delegates were constructing, both a system of government, but especially a system of federal constitutionalism, that it's going to be you're going to have a central federal government, and then you're going to have the surrounding state governments, and they're going to operate with one another.
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John Dickinson, a fellow delegate at the time, often likened the federal system to the solar system, that each of the individual planets has their own particular orbit, which is different than the other ones, but they're held in this single system by the gravitational pull of the sun.
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So it's about structuring it such that that gravitational pull is strong enough that none of the individual planets fly off, but not too strong that they get swallowed up in the middle.
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Madison was really animated by these sort of structural, metaphorical ways of thinking.
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But there was another element that was really important.
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He said we need to replace the Articles of Confederation with a true political constitution, is what he said in the middle of the Constitutional Convention, by which he meant we need to recognize that one of the reasons we're here, one of the reasons the United States is in such peril, and we have to hit this big reset button, not what any of us planned a decade ago.
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I mean, this is pretty dramatic stuff in the summer of 1787.
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We're just going to redo the entire first constitutional system.
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The problem was, among other things, the Articles of Confederation wasn't actually a constitution.
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It was much more like a federal treaty.
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So think today about how the European Union works.
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That is something much closer to a treaty organization held together by sovereign states, the individual parts, in this, in the example of the European Union, the various nations in Europe in the context of the late 18th century, the individual states, those are the places that have sovereignty and they have constitutions.
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And they have confederated through essentially this peace and trade treaty called the Articles of Confederation.
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And that's not going to work.
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It's not just that the national government doesn't have enough power under the Articles of Confederation, it's that the Articles of Confederation isn't a true constitution, by which Madison meant it's not a complete system of government with a legislative, executive, and judicial branch, and it doesn't have true independent legal authority.
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So he was emphasizing that the Articles isn't really a constitution because it's a creature of the states.
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For the federal constitution to be a constitution like the state constitutions, it needs to go to that ultimate reservoir of authority in America, the people of the United States themselves.
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And that's why they need to weigh in through the ratification process, because only then can it earn the definitional label a constitution rather than something much weaker like a treaty.
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And I'm so glad you noted this.
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You know, as you said, this is a big deal.
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They are doing something revolutionary, uh radical almost, scrapping the government that got them through the revolution and creating this new document, this founding document.
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But I think as often happens, Madison was great at theorizing.
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And he did a lot of that in the process.
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But it's a whole nother thing to put it into practice.
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And credit to him, you know, he did that by his service in Congress and the executive branch as president.
00:10:04.320 --> 00:10:20.399
But when we think about what it actually meant to put it into practice, what were the big constitutional questions that Americans found themselves wrestling with that hadn't necessarily been settled after this convention or even after it was ratified?
00:10:20.399 --> 00:10:21.840
What was left open?
00:10:22.159 --> 00:10:25.840
Yeah, I mean, maybe the more operative question is what wasn't left open?
00:10:25.840 --> 00:10:29.279
Because there was so much that needed doing.
00:10:29.279 --> 00:10:44.320
And Madison wrote a letter in 1789 saying we're in a wilderness without a single footstep to guide us, with the emphasis being there is so much uncertain here and no obvious rule book or playbook by which to proceed.
00:10:44.320 --> 00:10:45.279
How are we going to do this?
00:10:45.279 --> 00:10:59.120
But Madison himself, prior to the spring of 1789, connecting his work at the convention to this moment when he joins the first Federal Congress and plays such a pivotal role in taking the Constitution into effect, had emphasized that this was unavoidable.
00:10:59.120 --> 00:11:11.840
Among the criticisms the Constitution received from its skeptics, those who became known as anti-federalists, was not just what the Constitution said, but how it was written, that it seemed so ambiguous, uncertain, indeterminate.
00:11:11.840 --> 00:11:18.720
It was this piece of play-doh or clay that the governing party could mold into any shape they preferred.
00:11:18.720 --> 00:11:20.399
It was almost studiously ambiguous.
00:11:20.399 --> 00:11:31.120
And Madison responded in many different ways, but perhaps most prominently in Federalist 37, when he said, uh, look, building a constitution is difficult.
00:11:31.120 --> 00:11:36.480
There are all these big concepts that people don't agree on the precise meaning of separation of powers, federalism.
00:11:36.480 --> 00:11:45.200
And that is compounded by the fact that human beings themselves are imperfect and communicate with one another through this deeply imperfect medium known as language.
00:11:45.200 --> 00:11:53.679
No matter how clear you try to be, when you're talking about complex stuff, it's not going to be perfectly clear and other people are going to read different things into it.
00:11:53.679 --> 00:12:06.080
So the moral he drew from this is you can spend all the time you want, a thousand years trying to fully nail down every detail of a constitution and make it absolutely clear.
00:12:06.080 --> 00:12:20.320
And certain things are going to remain obscure and uncertain until, as he puts it, they are liquidated or settled or clarified through a series of debates, deliberations, adjudications.
00:12:20.320 --> 00:12:28.960
So he said, no matter what we do, it is going to be an unfinished work in progress, and it will have to be finished by the people who actually put it into effect.
00:12:28.960 --> 00:12:32.799
Well, he learns that he was absolutely right about that.
00:12:32.799 --> 00:12:40.799
The next spring, when he sits in the first federal Congress and he looks around and with everyone else and realizes there are so many big things we need to sort out.
00:12:40.799 --> 00:12:42.320
So I'll just emphasize a couple.
00:12:42.320 --> 00:12:58.080
So one is the very first debate that engulfs the first federal Congress that Madison finds himself in rather unexpectedly, which remains quite relevant because it was just the subject of a Supreme Court decision this summer, which is who gets to remove executive officers?
00:12:58.080 --> 00:13:02.639
The executive branch, according to Article II of the Constitution, is something of a skeleton.
00:13:02.639 --> 00:13:05.200
Obviously, there's going to be a president of the United States.
00:13:05.200 --> 00:13:11.759
It certainly anticipates that there are going to be different executive departments and they will be run by people who head them.
00:13:11.759 --> 00:13:20.399
But exactly how big the executive branch will be, how many departments there will be, unclear, leaves it largely to Congress's discretion.
00:13:20.399 --> 00:13:31.120
But one thing that it's notably silent on, it says that those people who will serve, executive officers, will be appointed by the president with the advice and consent of the Senate.
00:13:31.120 --> 00:13:38.960
So the Secretary of State, if the Congress decides, as everyone knows they will, to have a State Department or a War Department or a Treasury Department.
00:13:38.960 --> 00:13:44.000
When they appoint somebody to run it, the Constitution says very clearly how that process will work.
00:13:44.000 --> 00:13:53.919
It says absolutely nothing about how these people can be removed, if at all, other than for high crimes and misdemeanors if you choose to impeach them.
00:13:53.919 --> 00:14:06.639
So Madison writes the legislation that will be the bill that sets up the Department of Foreign Affairs and says that the person who runs the Department of Foreign Affairs will be removable by the president.
00:14:06.639 --> 00:14:10.480
And some people object and say, on what authority did you add that?
00:14:10.480 --> 00:14:14.399
The Constitution doesn't say they'll be removable by the president, it doesn't say anything at all.
00:14:14.399 --> 00:14:19.039
So it sets off this whole debate about what do you do when something that seems important?
00:14:19.039 --> 00:14:27.600
Like this is practically important, whether or not Secretary of States essentially serve for life like Supreme Court justices, or they can be removed.
00:14:27.600 --> 00:14:28.559
And if so, by whom?
00:14:28.559 --> 00:14:30.960
Is it by the president, by the president with Senate?
00:14:30.960 --> 00:14:32.639
Is there some other procedure?
00:14:32.639 --> 00:14:34.480
But the Constitution's silent on it.
00:14:34.480 --> 00:14:39.600
So it's not just the question of removal, it's this question of what do we do in the face of constitutional silence?
00:14:39.600 --> 00:14:40.639
Do we fill it?
00:14:40.639 --> 00:14:46.799
Do we try to interpret the Constitution in such a way to figure out how it's quietly speaking to the issue?
00:14:46.799 --> 00:14:55.759
And it leads them into this big, kind of prolonged debate where it's not entirely clear how to proceed, and the debate is not really resolved at all.
00:14:55.759 --> 00:15:03.600
They finish the debate with there is not a majority view for any of the positions that have been floated in Congress to that point.
00:15:03.600 --> 00:15:08.559
So it is a clear example of how there are big parts of the Constitution that aren't clear.
00:15:08.559 --> 00:15:26.080
The biggest one by far, though, which really comes up when Alexander Hamilton, who's the first Secretary of the Treasury, takes his big swing at trying to address the major issues that have put the United States in crisis and made a constitution necessary in the first place, this sort of crippling economic crisis.
00:15:26.080 --> 00:15:35.360
And one of the pillars of his big economic program to salvage American public finances and kickstart the economy is to charter a national bank.
00:15:35.360 --> 00:15:52.480
And a bunch of people in Congress, almost entirely in the South, are really worried about this because they're worried it will transform the United States from a primarily agricultural to commercial nation, which will transfer economic and political power towards the more commercial, mercantile North.
00:15:52.480 --> 00:15:56.399
They're also worried that this will lead to too much centralization.
00:15:56.399 --> 00:15:58.879
It will make the national government too powerful.
00:15:58.879 --> 00:16:04.559
And this is especially a problem for Southerners who are so dependent on the institution of slavery.
00:16:04.559 --> 00:16:12.159
They're worried if the federal government can set up a national bank, can they also potentially interfere with the institution of slavery?
00:16:12.159 --> 00:16:15.279
How limited is the power of the national government?
00:16:15.279 --> 00:16:21.519
So it sets off this big debate, which also has never gone away, about what are the limits of national power?
00:16:21.519 --> 00:16:23.519
How much can the national government do?
00:16:23.519 --> 00:16:32.480
And it soon becomes clear there as well that there are certainly different things one can say about that question, but it's by no means settled.
00:16:32.480 --> 00:16:40.000
Some people, like Madison himself, emphasizes well, this is a system of enumerated powers.
00:16:40.000 --> 00:16:51.840
Unlike the state constitutions, which give a general governmental power to the state governments, the federal government can only do things that it has been expressly given permission to do.
00:16:51.840 --> 00:16:54.720
So there's a list of enumerated powers given to Congress.
00:16:54.720 --> 00:16:57.200
Where does it say you can charter a bank?
00:16:57.200 --> 00:16:58.559
It doesn't say that.
00:16:58.559 --> 00:17:08.559
It does end by saying that in addition to the enumerated powers, Congress will have power to pass all laws necessary and proper to carry out its other powers.
00:17:08.559 --> 00:17:14.000
But Madison says, last I look, the word necessary means necessary, not convenient.
00:17:14.000 --> 00:17:19.759
And maybe a bank is a convenient way to do the other powers, but it's definitely not necessary.
00:17:19.759 --> 00:17:30.480
But people on the other side who support Hamilton respond and say, and this is partly what gets at the uncertainty and flux of the moment, they say, you guys are just approaching this all wrong.
00:17:30.480 --> 00:17:45.599
You're reading the Constitution as though it's kind of like the Articles of Confederation, as though the state governments retain almost all the power, and therefore anything given to the national government should be interpreted very narrowly, strictly.
00:17:45.599 --> 00:17:51.599
And they said, that's not what we set up all those years ago, four years earlier in 1787.
00:17:51.599 --> 00:17:56.799
We set up a national government that could ensure the nation would survive.
00:17:56.799 --> 00:18:01.119
It was not going to be like the Articles of Confederation, where the states could imperil the nation.
00:18:01.119 --> 00:18:08.880
It was going to give the national government all necessary national powers to ensure the union would not break apart.
00:18:08.880 --> 00:18:14.880
So, one, by looking at the enumerated powers list, you're already reading it the wrong way.
00:18:14.880 --> 00:18:20.640
This is a national constitution, so it has implied national power that doesn't have to be enumerated.
00:18:20.640 --> 00:18:24.559
And two, it doesn't say absolutely necessary.
00:18:24.559 --> 00:18:29.839
It says necessary, which means plainly adapted or efficient or something like that.
00:18:29.839 --> 00:18:34.799
The government needs flexibility to deal with crises that it can't anticipate.
00:18:34.799 --> 00:18:38.319
So we get this big debate over, well, what kind of a thing are we even reading?
00:18:38.319 --> 00:18:40.960
Are we reading a contract between the states?
00:18:40.960 --> 00:18:46.880
Are we reading a national charter that was made by the whole nation together?
00:18:46.880 --> 00:18:50.480
And depending on your answer to that question, what am I reading?
00:18:50.480 --> 00:18:52.160
You're going to read it differently.
00:18:52.160 --> 00:18:56.000
And it's pretty clear nobody quite agrees on what they're reading.
00:18:56.400 --> 00:19:09.599
Oh, I love the examples that you gave, both contemporary, you know, this past summer, these questions that the nation is asking versus hundreds of years ago, the debates Madison Hamilton and their respective parties are having.
00:19:09.599 --> 00:19:16.400
And back to the point about language that we began with is how are we defining, for example, necessary and proper?
00:19:16.400 --> 00:19:17.440
It depends.
00:19:17.440 --> 00:19:21.599
And, you know, even Madison himself is known to change his mind.
00:19:21.599 --> 00:19:33.359
And I'm wondering if you can tell us about, especially as he's serving in government under this new constitution that he was so pivotal and creating, is he changing his mind?
00:19:33.359 --> 00:19:38.319
Are there some things that he's finding, oh, that's more theoretical versus now that I'm actually doing this?
00:19:38.319 --> 00:19:39.920
So what do we know about that?
00:19:40.240 --> 00:19:40.559
Yeah.
00:19:40.559 --> 00:19:46.079
So that is in some ways one of the biggest questions of constitutional history of the 1790s.
00:19:46.079 --> 00:19:48.160
Some people call it the James Madison problem.
00:19:48.160 --> 00:19:51.359
Did he dramatically flip on almost everything?
00:19:51.359 --> 00:19:58.480
Or if he remained consistent, what does that tell us both about how he thinks, but also what's happening around him?
00:19:58.480 --> 00:20:08.559
So clearly, if we just take some snapshots from 1787 to the end of the 18th century, it sure looks like somebody who is saying different things than they once did.
00:20:08.559 --> 00:20:15.200
In 1787, his big complaint is the state governments are ruining the United States.
00:20:15.200 --> 00:20:17.519
They're sort of cesspools of faction.
00:20:17.519 --> 00:20:24.960
They're not selecting for statesmen who can rise above petty interest and see the big picture.
00:20:24.960 --> 00:20:37.759
That's among the reasons we need a stronger national government, including with a power that he isn't able to get into the Constitution, but he desperately wants a national power to a negative or a veto on all state laws.
00:20:37.759 --> 00:20:43.759
So that's a pretty dramatic nationalist position, a national government that can veto any state law.
00:20:43.759 --> 00:20:58.480
Okay, well, a few years later in the bank debate, now he's suggesting the powers of the national government are more limited than the people who had supported the Constitution are currently claiming, like his friend and one-time co-author of the Federalist Papers, Alexander Hamilton.
00:20:58.480 --> 00:21:12.960
If we jump ahead a couple years after that, Alexander Hamilton is defending a robust view of presidential power over foreign affairs during the neutrality crisis when the French Revolutionary Wars have engulfed Europe in warfare and the United States has to decide.
00:21:12.960 --> 00:21:20.000
Are we going to be allied with any one of these European powers, including France, which claims to be fighting the next Republican revolution?
00:21:20.000 --> 00:21:23.759
France had supported the United States in its Republican revolution.
00:21:23.759 --> 00:21:27.839
Or as Washington and Hamilton thinks is important, are we going to remain neutral?
00:21:27.839 --> 00:21:31.119
But, you know, Madison fights Hamilton on that front too.
00:21:31.119 --> 00:21:40.960
Later in the 1790s, he joins together with his friend Thomas Jefferson in the Virginia and Kentucky resolutions to protest the Alien and Sedition Acts.
00:21:40.960 --> 00:21:48.079
And in what seems like a total inversion of the 1787 position of the national government can veto state laws.
00:21:48.079 --> 00:21:54.559
Now he's saying that the state governments can judge the constitutionality of federal laws like the Sedition Act.
00:21:54.559 --> 00:21:59.759
He doesn't say they can nullify them, as later states' rights advocates of the 19th century will.
00:21:59.759 --> 00:22:03.920
But he says they can judge them, they can declare them unconstitutional.
00:22:03.920 --> 00:22:10.319
So is Madison just flip-flopped here from the hardcore nationalist to a states' rights southerner?
00:22:10.319 --> 00:22:21.599
Whatever the answer to that is, the right way to think about it is to take seriously what Madison would say is going on, which is getting back to the idea that he really has the instincts more of a political scientist than a lawyer.
00:22:21.599 --> 00:22:25.359
He sees constitutions as systems that are dynamic.
00:22:25.359 --> 00:22:33.680
If different aspects of the system begin to operate differently, then you need to update how you think about how the whole thing works.
00:22:33.680 --> 00:22:36.160
And a few things happen.
00:22:36.160 --> 00:22:44.480
One, he would say, I was all for expansive national power that was necessary to address the crises of union.
00:22:44.480 --> 00:22:52.640
That doesn't mean I was ready to swing the pendulum as far in the other direction as Alexander Hamilton and his centralizing friends are.
00:22:52.640 --> 00:23:08.400
So because they're going so far, me, Madison, I'm standing in the same place, and I'm saying I'm against people who think the national government should have no power, but I'm also against people who want to say the necessary and proper clause is just a blank check to govern as you see fit.
00:23:08.400 --> 00:23:11.680
When it comes to the presidency, this is particularly interesting.
00:23:11.680 --> 00:23:19.759
Because Madison's working idea in 1787 and 1788 is that the legislative branch, Congress, will predominate.
00:23:19.759 --> 00:23:26.640
His concern is legislatures in Republican systems of government are, as he calls it, the impetuous vortex.
00:23:26.640 --> 00:23:28.240
They suck in everything.
00:23:28.240 --> 00:23:29.839
They're like the black hole.
00:23:29.839 --> 00:23:34.640
How can you make the other branches strong enough that they even have a fighting chance?
00:23:34.640 --> 00:23:38.559
It's obvious that the legislature's going to predominate.
00:23:38.559 --> 00:23:53.279
But Alexander Hamilton, from his perch in the executive branch in the Treasury Department, shows very clearly, first in basically getting Congress to pick up his financial program and enact it.
00:23:53.279 --> 00:24:03.119
And then on these foreign policy issues I mentioned with the neutrality crisis, it turns out that the executive has powers and advantages that the legislature doesn't have.
00:24:03.119 --> 00:24:05.599
It especially has first mover advantage.
00:24:05.599 --> 00:24:10.880
The executive can move quickly, can just do things that creates a new reality on the ground.
00:24:10.880 --> 00:24:17.119
So in 1793, say Madison is sitting there saying, I thought the legislature would be dominant.
00:24:17.119 --> 00:24:30.880
Hamilton has shown me, not theoretically, but practically, through practice, through experience, that in certain respects, the presidency has all these advantages to reset the rules of the game.
00:24:30.880 --> 00:24:36.880
So this gets Madison to rethink whether or not his views of 1787 were right.
00:24:36.880 --> 00:24:39.440
And he would put it, I'm not abandoning my views.
00:24:39.440 --> 00:24:42.799
I am clarifying and refining them through experience.
00:24:42.799 --> 00:24:45.279
And I think he would emphasize everyone should do that.
00:24:45.279 --> 00:24:47.920
I mean, he says this in the Federalist papers themselves.
00:24:47.920 --> 00:24:53.279
We are doing things that are new that no one's done before, including creating a large republic.
00:24:53.279 --> 00:24:56.480
But we're doing that because we have all these years of experience.
00:24:56.480 --> 00:25:02.160
And every theorist would trade experience for theory if they could have that experience.
00:25:02.480 --> 00:25:09.119
That is one of the most succinct explanations for Madison and his thought process at that period of time.
00:25:09.119 --> 00:25:15.519
Because obviously, you know, we hear that a lot criticism of Madison changing his mind, as you said, flip-flopping.
00:25:15.519 --> 00:25:24.640
But really, I think it shows a very sophisticated and open-minded approach to taking in the context of what's happening.
00:25:24.640 --> 00:25:32.319
You know, and Jonathan, as you've demonstrated through this conversation, these issues are still so, so relevant today.
00:25:32.319 --> 00:25:35.839
We're asking the same kinds of questions, grappling with the same challenges.
00:25:35.839 --> 00:25:48.480
When Americans today debate what the Constitution means, how should we recognize that we're participating in a process that began right after 1787?
00:25:48.480 --> 00:25:55.119
You know, this is not something that just us today, you know, that's dependent upon the present moment.
00:25:55.119 --> 00:25:59.039
This is centuries that we are building on when we think about it.
00:25:59.440 --> 00:25:59.759
Yeah.
00:25:59.759 --> 00:26:06.000
So I think there so these days, it history has always been important to American constitutional interpretation.
00:26:06.000 --> 00:26:09.279
It's it's always been an important source of authority.
00:26:09.279 --> 00:26:18.319
People have always looked to past figures, especially those who established the Constitution and tried to invoke them when convenient to support their positions.
00:26:18.319 --> 00:26:27.839
But that has especially intensified of late as the role of history and especially founding era history has come to play such an outsized role in debates.
00:26:27.839 --> 00:26:40.799
But among the things I'd emphasize that you already underscored is we should actually then go back to the 18th century and see, before even asking, well, what did they think this particular part of the Constitution meant?
00:26:40.799 --> 00:26:44.640
Instead, say, how did they do constitutional interpretation?
00:26:44.640 --> 00:26:47.759
The Constitution does not come with a user's manual.
00:26:47.759 --> 00:26:51.759
It does not say at the end, and here's how you should interpret it.
00:26:51.759 --> 00:27:06.160
So that was left to the first generation of Americans to live under the Constitution to create that process, not just what it means, not just try to figure that out, but figure out how you would go about even figuring that out.
00:27:06.160 --> 00:27:08.640
What rules of interpretation would guide it?
00:27:08.640 --> 00:27:13.759
And what's pretty clear is they began a debate that has never stopped.
00:27:13.759 --> 00:27:24.960
So if we're going to go back to the 18th century to try to resolve our debates as though we're going to find things clear and settled that they didn't debate, we're going to be left wanting.
00:27:24.960 --> 00:27:36.640
Because the same questions we have about how much power did the national government have, what kinds of rights were protected under the Constitution, just how far did the powers of the presidency expand?
00:27:36.640 --> 00:27:39.440
They debated these things no less than we did.
00:27:39.440 --> 00:27:50.079
And you can certainly find cogent arguments on each side, and you can pick those arguments up and say, Alexander Hamilton had it right about presidential power.
00:27:50.079 --> 00:27:56.400
But then you need to explain why James Madison had it wrong and why you're choosing one over the other.
00:27:56.400 --> 00:28:02.799
I mean, for instance, Hamilton said, most foreign affairs powers are by nature executive.
00:28:02.799 --> 00:28:20.640
And because the president of the United States is vested by Article II with the executive power, that means all the unenumerated foreign affairs powers that don't happen to be explicitly assigned elsewhere, like the power to make treaties is explicitly assigned to the president and the Senate.
00:28:20.640 --> 00:28:24.160
But if the Constitution is silent on it, that just falls to the presidency.
00:28:24.160 --> 00:28:32.319
Okay, well, that is what most modern presidents have claimed for themselves, this sort of vast authority over national defense and foreign affairs.
00:28:32.319 --> 00:28:37.759
Well, it should matter that James Madison at the time said, You were completely wrong, Alexander Hamilton.
00:28:37.759 --> 00:28:43.039
A lot of foreign affairs powers are not executive in character, they're legislative in character.
00:28:43.039 --> 00:28:56.480
That is certainly true of deciding whether or not the nation will be at war or at peace, which is what the authority to declare neutrality is, and why the Washington administration was so mistaken that they thought they could unilaterally do it.
00:28:56.480 --> 00:28:58.640
We're not a monarchy, Madison said.
00:28:58.640 --> 00:29:04.640
We're a republic, and as a result, the people's representatives in Congress is the body that gets to decide this thing.
00:29:04.640 --> 00:29:10.319
Alexander Hamilton is trying to transform a republic into a quasi-monarchy.
00:29:10.319 --> 00:29:27.759
Maybe Madison's right, maybe he's not, but we should take the fact that they debated these things so seriously and maybe stop trying to hope that they, these distant ancestors who we mostly see in statues, will resolve disagreements that we continue to have to this day.
00:29:28.240 --> 00:29:35.440
I admit I am one of those people that sometimes I'm like, oh, I just wish I could talk to Madison and maybe he could get some guidance.
00:29:35.440 --> 00:29:36.960
But that's a really good point.
00:29:36.960 --> 00:29:42.160
And historians, constitutional scholars, legal professionals, all of us really.
00:29:42.160 --> 00:29:49.599
I mean, even your lay folks, we do sometimes have this mindset of the founders must have thought the way that I think.
00:29:49.599 --> 00:29:50.960
You know, we just kind of assume that.
00:29:50.960 --> 00:29:56.480
We don't take a step back and say, they actually were in a whole different time dealing with a whole different set of issues.
00:29:56.480 --> 00:30:03.039
Yes, we're grappling with similar challenges, but they were experiencing something very different.
00:30:03.039 --> 00:30:13.839
And I'm curious as we kind of wrap up in this final question, what are we today required in terms of trying to understand the constitution?
00:30:13.839 --> 00:30:15.920
What should we be careful of?
00:30:15.920 --> 00:30:21.200
And what should we as average citizens take with a grain of salt from the past?
00:30:21.200 --> 00:30:23.839
You know, how do we make it our own today?
00:30:24.240 --> 00:30:24.799
Yeah.
00:30:24.799 --> 00:30:43.119
So there are a few things that have been more central to how I try to think about the period and explain it to people that usually, again, because it's such a central part of American civil religion, we are sort of built around our national identity, is so bound up in a story about the founding and a founding moment.
00:30:43.119 --> 00:30:50.880
And we continue to live under the same constitution that is our fundamental law and system of government that we've been talking about on this episode.
00:30:50.880 --> 00:30:55.759
So it's understandable that people see it as sort of a continuous thing.
00:30:55.759 --> 00:31:05.920
And whatever might have changed, the way the founding generation thought about the constitution is not all that different from how we think about the constitution.
00:31:05.920 --> 00:31:07.839
And in certain respects, that is certainly true.
00:31:07.839 --> 00:31:08.960
There's plenty of overlap.
00:31:08.960 --> 00:31:26.960
But I think the important thing is because there were key differences in how people thought in the 18th century about a host of things, if you're really trying to understand what the founding generation was about, if you're trying to understand what James Madison was thinking in 1787 or 1793, assume less, not more.
00:31:26.960 --> 00:31:48.960
Don't just assume, well, they're talking about the same constitution that we talk about today, that the Supreme Court talks about today, that if you went to law school, you learned about in law school, it's the same kind of object with the same kind of characteristics, that is interpreted in essentially the same sort of way, that is understood to be this thing that the judiciary of the United States primarily enforces.
00:31:48.960 --> 00:31:53.359
Rather than assuming any of that, start from the premise, well, did they agree with any of that?
00:31:53.359 --> 00:31:58.240
Actually take seriously what they thought the Constitution was and how it would work.
00:31:58.240 --> 00:32:09.759
And what you start to realize, I think, is you start to see all of the ways in which their assumptions, the things they took for granted, the things they didn't spell out, were very different than our own.
00:32:09.759 --> 00:32:13.680
And then you're forced to reckon with, well, why do we do things that way?
00:32:13.680 --> 00:32:19.599
You know, a big one here is we've long lived under a strong system of judicial supremacy.
00:32:19.599 --> 00:32:25.279
To have a constitution like ours is to have the Supreme Court as final arbiter.
00:32:25.279 --> 00:32:31.680
Few things would have been more surprising to people in the late 18th century than that, especially James Madison.
00:32:31.680 --> 00:32:43.359
He thought the judiciary was important, he thought it would play a vital role, but he didn't think there was any way that the judiciary could meaningfully resolve big constitutional disputes.
00:32:43.359 --> 00:32:56.160
He'd be quite shocked about that, which doesn't mean it's wrong that we do that, but it forces us to reckon with well, here's all these people who we claim had really good ideas, and they thought the system would work very differently.
00:32:56.160 --> 00:32:59.359
James Madison thought Congress would predominate.
00:32:59.359 --> 00:33:06.799
People joke now Congress doesn't do anything other than vote to keep the lights on, that the president is muscular and strong.
00:33:06.799 --> 00:33:18.640
We have a massive administrative state in the executive branch that does a lot of our federal regulation, and we have a judiciary that is constantly weighing in on big questions.
00:33:18.640 --> 00:33:24.960
I don't think that in any way jives with the constitutionalism that James Madison expected to come to pass.
00:33:24.960 --> 00:33:33.839
Again, doesn't mean his way of thinking was right, but we should take seriously that his assumptions and our assumptions were different.
00:33:33.839 --> 00:33:39.680
And we should then try to learn from that rather than say, well, what answers do you have to give us, James Madison?
00:33:39.680 --> 00:33:41.920
Instead, say, how did you think about these things?
00:33:41.920 --> 00:33:45.680
And given you thought about them differently, is there something we're missing?
00:33:46.000 --> 00:33:49.519
Jonathan, this was such an insightful conversation.
00:33:49.519 --> 00:33:54.559
I was taking copious notes throughout our conversation, so I can explore more later.
00:33:54.559 --> 00:34:06.480
But the big takeaways I got from this conversation, the encouragement to ask questions, to really go back, look at the history, to pursue our curiosity, be curious about the past.
00:34:06.480 --> 00:34:09.920
Don't assume, assume less, as you said.
00:34:09.920 --> 00:34:13.760
And then also engage in dialogue.
00:34:13.760 --> 00:34:27.440
Do that critical listening speaking with others, others of different perspectives, and maybe use the founders and what they cared about as a guide, but not as the template with all the answers.
00:34:27.679 --> 00:34:28.159
Exactly.
00:34:28.159 --> 00:34:29.599
I think you put that perfectly.
00:34:29.599 --> 00:34:36.320
And we're at a a lot of people think we're in a perilous moment in the nation's history that calls for a kind of renewal of civic practice and values.
00:34:36.320 --> 00:34:38.719
Well, nobody understood that better than the founders themselves.
00:34:38.719 --> 00:35:04.079
They were trying to create a system that could tolerate the fact that people would invariably disagree and that the people at large would have to be sufficiently educated and informed that they could make sound judgments to make a system of republicanism where the people rule actually survive, and they wouldn't have to resort to a system of monarchy or something else where the people were given less authority.
00:35:04.480 --> 00:35:06.159
Well, thank you so much, Dr.
00:35:06.159 --> 00:35:09.599
Jonathan Ginat, for joining me today on Consider the Constitution.
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We really appreciate you being here.
00:35:11.519 --> 00:35:12.880
Thank you so much for having me.
00:35:13.119 --> 00:35:14.960
And thank you to all of our listeners.
00:35:14.960 --> 00:35:18.559
Please subscribe and share the show with family and friends.
00:35:18.559 --> 00:35:23.360
And join us again in two weeks as we consider the Constitution.
