August 15, 2016

Review: “The Quartet – Orchestrating The Second American Revolution, 1783–1789,” by Joseph J. Ellis (Alfred A. Knopf, 2015)

“In the long run – and this was probably Madison’s most creative insight – the multiple ambiguities embedded in the Constitution made it an inherently ‘living’ document.  For it was designed not to offer clear answers to the sovereignty question (or, for that matter, to the scope of executive or judicial authority) but instead to provide a political arena in which arguments about those contested issues could continue in a deliberative fashion.  The Constitution was intended less to resolve arguments than to make argument itself the solution.  For judicial devotees of ‘originalism’ or ‘original intent,’ this should be a disarming insight, since it made the Constitution the foundation for an ever–shifting political dialogue that, like history itself, was an argument without end. Madison’s ‘original intention’ was to make all ‘original intentions’ indefinitely negotiable in the future.”—Joseph J. Ellis, The Quartet

With this book, Pulitzer Prize-winning historian Joseph Ellis offers the lay reader, as well as lawyers and political scientists, important and valuable insights into the meaning behind the architecture of the U.S. Constitution of 1789, which is still with us and so consumes everyday political and legal debate, as just described above.

The Declaration of Independence of 1776 is said to embody the ideals of the American experiment such as all men possessing “certain unalienable rights” such as equality, “life, liberty and the pursuit of happiness.” Thirteen years later, the Constitution would establish the rules governing how that new Republic was to operate as a day to day functioning government. For example; the balance of power between the States and the new federal government, who taxes would be imposed and collected, and which branch of government would be delegated the responsibility of negotiating with foreign nations.

Ellis reveals the context and background behind the Constitutional Convention of 1787 where 55 delegates met in Philadelphia. He pokes holes in the traditionally held conception of the Founders as divinely guided instruments of a supernatural operating with mystical omniscience. Ellis also disproves the “quasi-Marxist nonsense” argued by Progressives that the Founders were simply trying to protect their own “balance sheets.” Instead, we learn that the revolutionary leaders were driven by larger political motives and ideological issues. 

Indeed, since the Confederation formed between thirteen independent states, or nations, was plainly a failure, our former British colonies were on the way to creating a second Balkanized Europe consisting of small states scattered over the vast North American continent. The American Revolution of 1776 was proving the historical lesson that a Republic could not function over any large geographical areas. Such confederations would eventually fail or be destroyed by bloody civil war. And so, the great powers of Europe were just waiting to pick up the pieces when the so called “United States” fell apart. In fact, there were British garrisons along the Great Lakes on actual American soil waiting to step in for the cleanup.

Our author focuses upon the four leaders of the nationalist movement, eventually called “Federalists”: George Washington, Alexander Hamilton, John Jay and James Madison. They fully understood the need for a stronger government to pull the American people together into “We the people of the United States,” the source of all power identified in the preamble to the Constitution. Washington’s careful orchestration behind the scenes in this precise time period also has been documented recently by another biographer. Ellis’s portrayal of Washington is carefully researched, although he appears to paint Washington as less hand-on for this project than he really was. Our writer’s histories of the other three players in the Federalist project are clearly presented in a highly readable and entertaining prose.

Readers will find that the real focus of this work is on the understanding of the positive machinery found in the Constitution and the “ghosts” who haunted it that is provided by a full historical context. For presumed failures; i.e. the “slavery” question, or as the abolitionists would assert, “the conscious decision to bury the slavery issue was moral travesty that rendered the Constitution ‘a covenant with death.’” But it is good to learn that there were a few voices crying in the wilderness of the Constitutional Convention whose complaints about slavery fell on the deaf ears of the vast majority. And then, there also was the danger of restoring the monarchy, by creating any Executive office (the Presidency). While Washington’s restraint and honor could never be questioned as the foreordained first President, who would follow him, another King? Here we learn that Alexander Hamilton actually argued for “an elected monarch” to serve for life. The dangers of the then legitimate fear of an Imperial Presidency eventually reared their ugly head with President Theodore Roosevelt and they have increased to our present day.

On the positive side, we learn that Madison and the others failed in their effort to wipe out all the state and local governments and to establish a dominant chief executive. Instead, states and counties were preserved. While the House of Representatives would allocate officers based on proportional state population, the Senate, in the alternative, would consist of the non-proportional two Senators per state. In so doing, no matter how small the state there would be equal representation, e.g. Delaware equal to Texas or California. This result is subsumed in the concept of “federalism,” the clear continuation of governmental bodies closer to the average citizen. While the exact balance of power here was not defined, it was left to history to fill in the gaps. The Civil War, only two generations later, further defined this balance, but even today it is constantly redefined in the Halls of Congress or before the Supreme Court.

Inevitable compromises resulted in the final document which next was democratically adopted by the colonial legislatures in 1789. It then became the inherently living document quoted at the beginning of this review.

There is an ever shifting political dialogue over undefined political questions which is much debated today. Ellis asserts that many believe that Madison’s design and position in the debate is his greatest contribution to the Constitution and political theory. According to our author in his conclusion (219-220), any political or legal claim that there ever was an original intent behind any constitutional provision is misplaced. Instead, the document, as intended or as resulted from its compromises, is a living document whose meaning has to be fought out through the generations through a reasoned political process.

And so this is an important book in the ever present debate over how to interpret the Constitution, either politically or legally. While the author’s conclusion might be correct in the context of state verses federal initiatives or sovereignty, the author never raises or addresses the question of the Supreme Court’s claim to be the final arbiter of the living Constitution constructed by Madison, and not the people or Congress. For, as is well known, the concept of judicial review was scarcely addressed by the Constitutional Convention, let alone making that institution the final judge of a living constitution. Nor does the author address the Bill of Rights, or the first ten amendments to the Constitution which was forced on Madison as the price for ratification of the document by the states. Were the elements of the Bill of Rights also to be subject to evolution or do they have concrete meaning defined by their historical context at the time? Nonetheless, this study is a valuable contribution to the debate over a living constitution.