Joseph Ellis: ‘The Second Founding: Four Men Who Created a Country’
Articles,  Blog

Joseph Ellis: ‘The Second Founding: Four Men Who Created a Country’


[ Applause ]>>Well, good evening. I’m Wendy Lougee, the university
librarian and it’s wonderful to see all of you here this
evening for a very special and much anticipated evening. This is our third Paul and
Joan Nagel Lecture featuring Joseph Ellis. Before we begin the program,
I want to thank the Friends of the University Libraries
for sponsoring the event. These are our trusted
ambassadors helping us to celebrate what the
libraries do for learning and how critical we are to the intellectual
life of the university. And the generous support of our friends helps us bring
these remarkable programs an array of writers and poets and
opinion leaders to the stage. And if you aren’t a member
of the Friends group, now is the time to join. Inside your program, there’s
a special little announcement. We have a special
match being offered for first time Friends
membership, so this has never been a
better time to become a Friend. I also want to thank our
cosponsors for the evening, the Minnesota Historical
Society and the College of Liberal Arts Department
of History. Now, the Paul and Joan Nagel
Lecture series was created to honor Dr. Paul Nagel,
who was an active member of the Friends and
his wife, Joan. Paul was a former university
professor and administrator, director of the Virginia
Historical Society and senior trustee of the Colonial Williamsburg
Foundation. He was also a bestselling author of several books including the
three on the family of John and Abigail Adams, which gives
him something in common actually with our speaker this
evening, Joseph Ellis. In 2010, Paul was honored with
a lifetime achievement award by the Adams Institute,
joining David McCullough and Senator Edward Kennedy,
the only three people to ever have received
this award. And Joan was an accomplished
genealogist and a librarian. And she was Paul’s collaborator
on all of his projects and together, they
made a real impact and this series honors
those many contributions. And now, to tonight’s program. William Faulkner once
wrote, “The past isn’t dead. It isn’t even the past.” In those simple two
sentences, we are reminded that history is part of
us and we’re living it– we’re living with it–
within it everyday. You know, in an election year,
which seems to be well more than a year, we often
hear politicians and pundits will pine
about the Constitution and what our forefathers might
have meant when they drafted it. Tonight, we have an expert
on that subject, a scholar and an author of scores of
books about the major figures of the Revolutionary
War and in his own words of a how a small group of
prominent leaders in disregard of popular opinion,
carry the American story to a very new direction. Joseph Ellis is one of the
nation’s leading scholars of American history, the
author of nine books. He was awarded the Pulitzer
Prize for “Founding Brothers, The Revolutionary Generation”, and he won the National Book
Award for “American Sphinx”, a biography of Thomas Jefferson. His in-depth chronicle of the
life of our first president, “His Excellency,
George Washington”, was a New York Times bestseller. And his newest book,
which provides the basis for tonight’s talk,
“The Quartet, Orchestrating the Second
American Revolution”, was released in spring 2015 to
stellar reviews and those of you who have read it can attest
that those were well-deserved. His essays and books– book
reviews appear regularly in national publications
such as The New York Times, The Wall Street Journal, New
Republic, The New Yorker. And his commentaries
have been featured on CBS, C-SPAN, CNN, PBS. And he’s appeared in several
documentaries on Early America, including John and
Abigail Adams on PBS’s “The American Experience” and a History Channel
documentary on George Washington. Professor Ellis has taught in
the Leadership Studies Program at Williams College, at the
Honors College at the University of Massachusetts and
Mount Holyoke College and the United States
Military Academy at West Point. As this large and enthusiastic
audience demonstrates history is not dead, it’s not even
sleeping, so please join me in welcoming Joseph Ellis. [ Applause ]>>Thank you for that
gracious introduction. I’ve been to Minnesota
several times in the last five or six years. The time I remember best
is I was asked to come to the Guthrie Theater to
talk for three or four days with the actors who were about
to put on to play “1776”. And I knew that was going
to be fun and I arrived, the day I arrived and there was
all these TV cameras out there and I thought, “Heavens
to Betsy, I didn’t know I was
so important.” It was the day the
bridge fell down– [ Laughter ] — right there as
a matter of fact. In my travels, I’ve
been to lots of places. I would say Minneapolis-Saint
Paul was perhaps the most civic big city I’ve ever been in. And I think you should know that
from an outsider, a southerner who lives in New England. I want to begin– oh, by
the way, is there anybody from Mount Holyoke here?>>Yeah.>>All right. Meet me afterwards. [ Laughter ] We’ll see how you’re doing. I want to begin with a
statement that forces you to have answer to a question. The statement is this. The first clause in
the first sentence of the most famous speech in American history is
historically incorrect. What’s the most famous
speech in American history?>>[Simultaneously]
Gettysburg Address.>>That’s right. What’s a plausible choice,
option, alternative? Younger generation will
pick it more than you will? “I Have a Dream” speech. Yeah. In a poll,
they’ll pick that. Some of them will pick
Kennedy’s inaugural, his first and only inaugural. But you’re right. In other words, you’re
in the consensus. It’s the Gettysburg Address. Let us say the first clause– well, we’ll say the whole
sentence together, OK? See if we could do that. I’ll start, and then. “Fourscore–>>[Simultaneously] — and seven
years ago our fathers brought forth on this continent a new
nation, conceived in liberty, and dedicated to the proposition
that all men are created equal.”>>Excellent job. Some of you had to memorize
that like I did in high school. Yeah. There different versions, there’s fathers and
our forefathers. “Fourscore and seven years
ago our fathers brought forth on this continent a new nation,” what’s fourscore
and seven from 1863? It’s given away by the second
half of the sentence, right? It’s 1776. It’s got to be. That’s the day we
declare independence that these men are
created equal, right? By the way, what makes
the Gettysburg Address so historically significant? It’s the first occasion in
which Lincoln says the war is about ending slavery. He had never said that before. Up till then, it was
about saving the union. This is the reason it’s so
historically significant, as well as lyrically impressive. “Fourscore and seven years
ago our fathers brought forth on this continent a new
nation,” no, they didn’t. They brought forth
a confederation of sovereign states
provisionally united to come together to fight
the British and win the war and then go their separate ways
which they then proceeded to do. The resolution for
independence, July 2nd, 1776, put forward by Richard
Henry Lee, read that these colonies
are and have every right to be independent states. And if you think back, when they’ve been hurling
these arguments for 10 years against George III and
his ministers from 1765 to 1775, what are they saying? Parliament cannot tax us or
legislate for us later at all because that power
belongs where?>>[Simultaneously] People.>>The colonial legislatures. Not a national– there
is no national government of course then. So that as of 1776,
the commitment is to a temporary alliance which
is reflected in the form of government, which
isn’t really a government, called the Articles of
Confederation that they passed. It takes two years to ratify. But under the articles,
sovereignty resides in the individual states. And that’s very clear. It becomes very clear
during the war, especially if you’re
George Washington. Washington wants to
raise an army capable of defeating the British
with great resolve quickly. He calculates that
given the size of the American male
population, it’s possible to raise an army
of almost 200,000. There’s that many guys
between 18 and 50. I’m only going to ask
for less than half that, 88,000 is what I want. He asked for this in the summer of 1776 just before the
Battle of Long Island. He keeps asking. He never gets more than 15,000. In fact, that’s the high point. Every state takes
care of itself first. Every state raises militia,
pays more money to militia. I mean, why the hell would
you go to the continental army for half the pay and you
got to go away from home and serve for at least a year? And he wants it to be–
anyway, my point is, the way in which the continental
army is treated is another reflection of the fact
that sovereignty resides in the states rather than any
kind of national government. The continental congress
functions as a provisional national
government for a while but by 1777, even as of
the declaration in ’76, all the forces are centrifugal
rather than centripetal. We used to be held
together by one thing. We were members of
the British Empire. Now we’re going to be held
together by another thing, cessation from the
British Empire, 20% of the population
doesn’t agree with that, they’re loyalists,
another 40% doesn’t care. And they would go with
whoever is winning. But, now that we win the war,
once won, hasta la vista baby. And for the proof that things
are heading in that direction, we have a debt of $40
million, it’s growing, you know that magic,
it’s already– Virginian planners thought
this was like magic, compound interest is
like unbelievable. It’s going to be
77 million by 1787. That’s the debt. So people say, what kind of
republic have you created? A banana republic. We can’t pay our debts. We have no foreign policy. Massachusetts has its
own foreign policy. Adams, Abigail writes
back, saying my husband– to John Jay, “My
husband is just mortified because the British
are laughing at him. He represents a government
that doesn’t exist. And he can’t negotiate.” So, that’s where we’re at. That’s the direction
American history is headed. It’s headed towards
the Europeanization of North America. It’s headed towards an
American version of the EU. That’s where it’s going. And there is nobody out there
among the people at large who finds any trouble with this. People are pretty
content with that, mainly not because they
are ideologically committed to the principle of
state sovereignty or local sovereignty, although
they are, the average American, the ordinary American is born,
lived out his or her life and dies within a
28 mile radius. He doesn’t care, she
doesn’t care what’s going on somewhere else. Later on in the Virginia
ratifying convention, Patrick Henry, who put this
point of view quite clearly, and one of the reasons he
will oppose ratification of the constitution quite
eloquently as a matter of fact. So suppose we join this
union and everybody outside of Virginia, the representatives
from the other states vote for a tax and our
representatives vote against it, we’re going to be taxed
without our consent. It’s got some tea
party stuff here, OK? That’s actually the origins
or the antifederalists or the origins of the Tea
Party, denial of the legitimacy of the federal government. OK, that’s the direction in which American
history is heading and we all know it
changes direction. And how does that happen? Well, in this little book
here, it says– what it say– I told you I wouldn’t– oh, I
forgot to say, I’m not going to read to you, I’m going
to talk to you, right? That you would prefer
that, I presume? Yes, OK. Four men
made the transition from confederation
to nation happen. They are George Washington,
Alexander Hamilton, John Jay and James Madison. If they are the stars
of the story, the supporting cast
consists of Robert Morris, Gouverneur Morris, no
relation, and Thomas Jefferson. My contention is
that the political– this political quartet diagnosed
the systematic dysfunctions under the articles, manipulated
the political process to force the calling of the
constitutional convention, collaborated to set the
agenda in Philadelphia, attempted somewhat successfully
to orchestrate the debates and the state ratifying
conventions, and then drafted the Bill of
Rights as an insurance policy to ensure state compliance with
a constitutional settlement. If I’m right, this was
arguably the most creative and consequential act of political leadership
in American history. In other words, it’s a coup
d’état, but it’s a good coup. Now, it’s got some bad features. I can see you saying,
“Wait a minute, maybe we would have been
better off without it.” No, we wouldn’t. We’ll talk about
that and slavery. But how does this
direction change? One thing that happens
that begins to change the political
chemistry is best captured in a scene when John Jay is
standing over a table with a map on it in Versailles
in August of 1782. The University of Minnesota
has got lot of maps. This map, the original,
is at the Clements Library in University of Michigan. It’s a map of North America. The early maps of North
America are really funny, like the Pacific is about 50
miles west of the Allegheny. [ Laughter ] It’s like the old New
Yorker map, you know? And there is a Spanish minister in the room named
Count Aranda with Jay. Jay is now solely
responsible for negotiating for the American position
on the end of the war. I’ll tell you why in a sec. And Aranda, because Spain
has a treaty with France and the United States is
required by instruction back in Philadelphia,
do not do anything without the support of France. France saved our bacon. France helped us win the war. We cannot do anything
without them. Well, France has got a
treaty with Spain, therefore, we have to also pay attention
to what Spain thinks. The map is on the table. Aranda puts his finger on a spot
somewhere in the Great Lakes and draws a line down
through Central Ohio around where is now
Toledo further south ending up in the Florida
Panhandle around Tallahassee. He says, “Everything east
of that line is yours, everything west of that
line is ours, Spain’s.” Jay doesn’t need to draw a line. He just takes his finger,
puts it on the Mississippi, “That is our western border
and it is nonnegotiable.” There are two principles
that are nonnegotiable, recognizing American
independence and the Mississippi as the western border. It’s the most successful
diplomatic negotiation in American diplomatic history. It comes at the very start. We have never done better. [ Laughter ] We get everything because
the British can’t afford to continue the war. The great principle
is independence, the great prize is the
Trans-Allegheny West. And that changes the chemistry
of the political situation, because how does a confederation
manage expansion into that area? It can’t do it on a
state-by-state basis, or at least now, we’re going
to benefit collectively because we’re going
to raise money. If each of the states
pays a dollar– if it’s a dollar an
acre per sale of land, you can retire this
debt pretty easily. By the way, one of the reasons
that you if think about it, we never need– when is
the first income tax, 1913? We don’t need an income tax. Why? We’re selling the land. It’s when the land runs out
that things get troublesome. And that occurs in 1890. All right. So that– By the way, I
sort of discovered Jay here, I mean like Jay’s been there
all this time of course, and– but I never thought of Jay as
a founder at the same level of significance as Washington,
Adams, Hamilton, Madison, who’s the other that’s
good, Franklin, Franklin. Yeah. That’s the top six. I now think Jay deserves
serious consideration not just for what I described but
he becomes the equivalent of Secretary of State during the
government under the articles. He negotiates the Jay Treaty which is probably the single
most important diplomatic negotiation in the
early republic. He becomes the first
Chief Justice which is the reason he’s got a
criminal justice college named after him in New York. But when Washington is elected
president and he’s thinking about his cabinet,
he goes to Jay and he says, “What do you want? I’ll give you any
position you want.” He is the number one choice of
Washington for any position. That was his stature back there. And the fact that it
hasn’t seen that way to us is largely
function of the fact that his papers have not
been published in the way that the other founders where
they were hoarded at Columbia for reasons I will not
attempt to explain. They’re starting to come up now. If you’ve been on the
market, bet on Jay. Joe Ellis said, “If you
bet on Jay, you’re going to earn a lot of money here.” His reputation is
going to go up. They call– The Confederation
Congress recognizes they’ve got a problem because states are
essentially establishing tariffs against each other. New York is charging
Rhode Island and Connecticut import duties to
allow their ships to dock there. Therefore, some form
of regulation of interstate commerce, what we
now call interstate commerce, seems a good idea. And so, they allow for this
meeting at Annapolis to occur. Madison goes to this thing
and so does Hamilton. But only five states show up. What did Woody Allen say? You know, leadership– 90%
of leadership is showing up. And it’s difficult to get
people to show up to the– as members of the Confederation
Congress, or in this case, to the Annapolis Convention. And so after two days,
they simply adjourn. But Hamilton, and this– you
know, Hamilton is now back in vogue obviously for
his Broadway reasons but this is an example of
Hamilton’s cavalry charge, audacity leadership and
it’s most audacious. We’ve just had this Annapolis
Convention fail completely. And at the end of it, Hamilton
writes to the Congress and says, “We’re adjourning but we
have agreed that we now need to have a general convention
to take on of all the problems of the current Articles
of Confederation and we suggest the
second Tuesday in May where we can have this
new convention meet.” Like, it would be like some
journeyman boxer who’s been knocked out by another
journeyman and has just challenged
the heavyweight champion of the world. How in heaven’s name can
this possibly succeed? Here comes another ingredient. His name is George Washington. Jay starts to write
Washington, “You need to know that we’re headed towards
anarchy and you’re going to have to come out of retirement.” Madison starts to do the same
thing, Hamilton eventually comes in on the same and
Hamilton had served as his aide-de-camp
for four years. There is a concerted campaign
to recruit Washington. Why? It seems obvious. No attempt to have a
convention is likely to succeed but if there is any possibility,
Washington’s inclusion in the delegation transforms the
improbable into the possible. He is the indispensable man. The trouble is he really
doesn’t want to do it and he really doesn’t
want to do it. He had retired from public
life, delivering the sword at Annapolis as a matter of
fact at the end of the war in a famous version of the
Cincinnatus story, Cincinnatus, swords into plow shares. And the thing about
Cincinnatus is once he leaves, he can never come back. And Washington says, “I
have pledged myself to be in retirement and I cannot
violate that pledge.” If you read Washington’s
correspondence during this time, there is another
variable at work here. It’s elegiac. The phrase that keeps
reappearing is gliding down the stream of life. Washington feels
he’s much closer to the end than the beginning. Though he’s of sound
constitution, he knows that males
in the Washington line over the last four
generations have never made it out of their 50s. He’s– And he’s in
that position. He’s in his late 50s. So, he wants to die at Mount
Vernon underneath his vine and fig tree and he’s
not playing games here. He’s not being coy. Madison is the person who really
starts to write him in a way that becomes persuasive. And an event happens that
makes the situation more of an emergency. This– Right where I live
in Western Massachusetts, there’s this insurrection
called Shays’ Rebellion. You’ve heard of Shays Rebellion? Yeah. It’s really
not a big deal. It’s like 2000 guys are
protesting the taxes and their mortgage foreclosures. It’s hyped in the press. It’s– You know,
they’re going to march on Boston and Texas City. You know, they’re
not going to do it. They tried to take the
armory at Springfield and they’re turned
away and they dispersed so there’s a kind of– you know. It’s like when we thought
we’re going to be invaded by Grenada, remember that? And– [ Laughter ] Yeah, Reagan really saved
us from the Grenada and– [ Laughter ] But that does create a
certain sense of fear. Madison actually prepares to
believe that there’s a plot in which British agents
in Canada are trying– or linking up with Western Mass
farmers and they’re linking up with Western New Hampshire
and soon to be Vermont. Vermont is not yet a state. And they’re all going
to secede– Western– New England is going to secede
from the union and join Canada. And none of that is
really going to happen, OK? But that’s part of the fear. And it makes credible the notion that we’re facing
something called anarchy. What we’re really facing,
ladies and gentlemen, isn’t going to be anarchy. It’s going to be a split of
the confederation probably into three confederacies,
New England, Middle Atlantic, and South. That’s probably what’s
going to happen. Then God knows what
happens after that. Washington becomes
more interested and more pliable once he
receives a certain piece of information from Madison. Madison is a great nose counter. Within the Virginia aristocracy,
that’s considered demeaning but that’s what he
could do really well. And what Madison finds out is that the people opposed the
revisions in the Constitution or boycotting the convention. The people who are coming
are going to be comprised of two groups, moderates who
want to revise the Articles of Confederation and
radicals who want to do away with them altogether
and replace them. Madison and Washington
are radicals. Washington says,
“I’ll only do this if you promise me
if we go for broke. I’m not going for
middle position. I’m going for a total change.” Nobody is as much of a
nationalist as Washington because Washington watched what
happened to the continental army and watched them be
sent off as beggars without their– without
pensions. OK. By late spring, Madison has
persuaded Washington to come as part of the Virginia
delegation, and he then spends
most of April– March and April writing what– it’s a series of notes called
Vices of the Present System, but they add up to what
becomes the Virginia Plan. The Virginia Plan is
Madison’s argument for replacing the
current articles with a fundamental government–
fundamentally new government that shifts sovereignty from
the state to the federal level. They meet in– There’s
storms throughout New England in early May of 1787. Most of New England
delegations can’t make it. There’s a delay of
about 10 or 12 days and so there’s caucus among
the Virginia delegation and they caucus on
this and agree and that sets the agenda
for the convention. That’s a big advantage
that they’re going to have. They’ve got two advantages, they
got Washington and they got– they’ve set the agenda. But they got a problem. The rules of the
convention follow the rules under the articles,
one state, one vote. The small states
can stop anything. Therefore, the belief
that you’re going to get a legislature
that’s based on population as a fundamental principle which Madison believes is
necessary is not going to work. It’s not going to be
possible to do that. They’re going to be
able to block it. And so, some form of
compromise is built in to the structure
of the convention. It’s– You know, we spend a
lot of time studying, well, what did Madison say and what
did Gouverneur Morris say, what did so and so say,
what did George Mason say. What they said is
worth listening to but it doesn’t make
much difference. The delegates already knew what
they were going to vote for. An argument didn’t
really make that much of a difference to many of them. There are two ghosts
at the banquet. One is monarchy and they
can’t stop talking about it. George III haunts everything. They’ve overlearned
the lessons of ’76, any form of executive power
is, by their view, monarchical. The other ghost,
they can’t mention, it’s so bad, and that’s slavery. Notice the word slavery
never appears in the Constitution nor
does African or Negro. The phrase is that
species of property, that species of property. That’s the way they refer to it. Historians who looked back
at the convention and try to finesse the issue of slavery
are making a huge mistake. Listen, it’s a central issue. It’s embedded in the
economy of the south. No political settlement is
possible without dealing with the slavery issue. And South Carolina does in
1787 what they’re going– they threatened to do,
what they actually threaten to do and do in 1861. If you insist on any
article in the document that either purports to
end slavery or put it even on the road to ultimate
extinction, we’re out of here, OK? George is out of there too. Virginia is probably out
of there though they always like to sound more moral
than they really are. Virginia– [ Laughter ] Yeah, I’m a Virginian
and Virginia sounds moral because Virginia is in favor
of ending the slave trade. The reason they’re in favor
of ending the slave trade is because their plantations
are overstocked. If you end the slave trade,
it increases the value of the slaves they are going
to sell to South Carolina. There’s nothing moral about it. If you then start talking
about any slavery then, the Virginians say, “Oh no, that’s not what we’re
talking about here.” And in fact, the crop
for Virginia planters by the late 18th
century becomes– moves from tobacco to slaves. There was a million slaves
sold between 1790 and 1860 in a diaspora, internal
diaspora. It’s what’s called selling
them down the river. OK. Well, the point that’s
difficult, it’s really hard to make this point
with students, but, if they had faced it and
insisted in an abolitionist way, one at blank opposing slavery,
it would have never passed, that is the Constitution
would have never passed. They made a political
compromise, a political compromise
of a moral issue. Why did they do that? Most of them thought slavery was
going to die a natural death. They thought slave labor
could not compete successfully with free labor. They didn’t know about the
cotton gin, they didn’t know about the cotton kingdom. They though if they didn’t do
anything, it would simply die. Now it’s pretty clear
by no later than 1820, that’s not true. And it’s interesting when you
read The Jefferson Papers, a Secretary of State
in 1792, all patents go to the Secretary
of State weirdly. So you’re reading this
correspondence from Secretary of State, and here comes
this patent from Eli Whitney. And he writes to this guy, Eli
Whitney, and, you know, says, “Does this thing work?” He’s talking about
the cotton gin. Well, there is a figure in
the convention that doesn’t– hasn’t received his due. Most people would say
that Madison is the father of the American Constitution and
there’s a good reason for that. He did set the agenda that I
told you with the Virginia Plan. And also, he’s the guy– see,
he’s like he’s the historian, the historian gets to–
gets to say who’s– you know, he’s the one who
keeps the official record of the convention. By the way, he keeps changing
it all the time later. Over the next 30 years
he changed in stuff– it’s, you know, like, after the
Missouri crisis, he changes it, after the crisis for 18th– terror of crisis in
1820, he’s shifting. He’s like trying to
make it in accord with contemporary
events later on. Gouverneur Morris is not a guy
many of you have heard about. But he is really an
interesting character. And he’s a bit a womanizer,
that shouldn’t be held too much to get him in the
Trump era but– [ Laughter ] — but he’s a peg-legged
guy, he’s got one leg. And there’s– If you go
the Virginia State House, there’s a famous
statue of Washington. It’s done by Houdon, the
greatest sculptor of the era and Houdon came over to Mount
Vernon to do a life mask of Washington in the 1780s. But of course, he couldn’t
do the whole torso and so it so happened that Gouverneur
Morris was in Paris later on as America’s minister
to France, the torso of Washington Statue
is really Gouverneur Morris’. [ Laughter ] And he was the same size
as Washington, he was 6’3″ and a quarter, but they take
his peg leg away of course. But listen to this, nobody
speaks more in the convention than Gouverneur Morris. He’s the one person who
speaks more frequently than Madison rises to speak. He’s also this person that most
vociferously opposes slavery. He said slavery is the form
of aristocracy and medieval. In August of ’87, they formed a
committee called the Committee on Style and they
appoint Morris the head of the Committee on Style. Madison is on this thing, so is
Hamilton, a Committee on Style. This sounds like, you
know, not very important. It means you got a right to
document, get all these notes about what was in– OK,
put it together for us now. If somebody– This is a question
nobody will ever get right on Jeopardy. Who wrote the Constitution
of the United States? Gouverneur Morris wrote
the whole thing, OK? It consolidates all kinds
of paragraphs very– it reached the way it
does because of him. What are the first words
of the Constitution? “We the people of
the United States,” where in heaven’s name
does that come from? Because that is, in effect, a statement that resolves
the sovereignty question in a way they have
not been able to do. What was in the draft
he was working with? The draft said this, “We
the people of Massachusetts, New Hampshire, Connecticut,
New York, New Jersey down the
coast do hereby agree.” Well, who says who changes it? Who– Where is the debate? There’s no debate,
he just does it– [ Laughter ] — by himself and
nobody questions it. And so the document has a clear
commitment to the doctrine of popular sovereignty and
to the federal government as the representative of that. Government shifts from them
to us, that’s a big deal, OK? And OK, you could say it,
it’s only the words here and it is only the words but
they’re really important words. And by the way, I think
they’re rather important for us right now too. We rise or fall as a single
people, it seems to me. OK. Gratification, this
should be the great debate in American history. After all, they passed
this document, nobody knew what
they were doing. They’re doing this, you know, they could never have
another convention now. All that we believe in, in terms
of transparency and diversity, totally violated, 55 white guys
get together in total secret and dream up some idea,
that’s what it was. But in this larger context,
13 states, Vermont’s coming in for this but Rhode Island’s
still going to boycott, Rhode Island boycotts
everything, OK? Like I always thought,
when my son went the Brown and I was trying get to– go
to Brown, if you try to get from Massachusetts to
Providence, Rhode Island, it’s been changed now because
of habits but back then, it was really to get there. They don’t want you
to go down there, OK? It’s where you would
send witches and Quakers and wild kinds of
crazy people, OK? And Rhode Island behaves that
way throughout this process. It doesn’t– It doesn’t send
any delegates to the convention and refuses to participate and it had single-handedly
voted against the impost. You know, everybody else voted
for it, now that stopped it. So Rhode Island’s eccentric. There should be a big debate
between October of 1787 and July of 1788, every state has
a convention that meets to debate this and
send the newspapers. And may– And, you know,
like this is the great debate in American history and
in some sense, it is. But if you read, as
I was required to do, the documentary history of each
state’s ratifying convention, boring. And the reason it’s boring is because they cannot have
a national conversation. Every state is talking about its
own self interest and its own– then within the state,
it breaks down further. The only document in the
ratification process– [noise]. Is that me?>>Yeah.>>Oh. The only document that takes a national
perspective is the Federalist Papers and that’s why
they’re important. Hamilton writes 51 of
them, Madison writes 29 and Jay writes five and
they’re the only documents that address the problem
facing the United States from a national perspective. All the others take
their own local and state perspective
exclusively. Well, how is this– how
does this get approved? Well, first of all,
it’s been almost– it’s been a bit of a coup d’état
to make this happen, right? Because remember, the
convention was charged with revising the articles. They changed their mandate. We’re not revising,
we’re replacing them. The article said, in
order to have any kind of new constitution approved, it must be unanimous
in all the states. Well, of course, that’s impossible given
Rhode Island, you know. So, what the– the people
in the convention said, the delegates said,
“This will be ratified if nine states approve it.” Where the hell did
they get that? [ Laughter ] They just made it up. [ Laughter ] So, the whole strategy
is get to nine, because we know there are some
states that are never going to ratify, Rhode Island being
one, New York being another. George Clinton in New
York is never going to let this thing get through. And we had some doubts
about North Carolina and Virginia is going
to be really close. So, if we can get to nine, then
the rest of the states have to come in or not be
part of the union, right? Now, so that’s Madison’s
strategy and he’s lucky because some of the
most difficult states, including Virginia and New
York, come late in the sequence. So, the sequence is important, as much as this telephone
counts. Another thing that they do,
nine votes– how do they– is– most of the states in the
ratifying convention would like to do something like this. We like this but there are some
things we would like to add or some things we would
like to change, OK, mostly reducing federal
style– jurisdiction over us. So, we like this but
here are some changes. They will, from the start,
they being the delegates to– at the constitutional
committee, you can’t do that. It’s up or down. You can’t go middle. Either you want in or you don’t. And that makes it really tough. I mean, it makes it a lot
easier to get it ratified. And what happens as
a result of this is that seven states say, “OK. We are going to go along.” Now, I don’t see why some states
didn’t say, “What do you mean? How do you tell us
what we can do? We can do whatever
we want to do. We’re going to vote for
these with amendments.” Now, of course, that’s going
to create chaos because– so you got all these states
with different amendments and then how do you reconcile
which of them are going to be a part of the
document or not? Anyway, at the end of the game,
what Madison says is, “OK, you that want to have
amendments, first vote on it, and then if you have recommended
amendments, put them in. They’re just recommending,
but we’ll take them into consideration later.” OK? That’s what the
Bill of Rights becomes. OK? That’s the reason
we get a Bill of Rights. Now, like I appeared in the
national archives one day, they had this new exhibit
on the Bill of Rights. This got bought– This guy, this patriotic philanthropist
bought some basic– both Magna Carta and
the Bill of Rights. And the Bill of Rights
is supposed to be our Magna Carta, right? Like if you look at the
origins of the Magna Carta, Magna Carta is really not
Magna Carta, and the Bill of Rights isn’t what
you think it is. It’s not some moment when
we cite eternal truce and we put them down on paper. That’s not what they are. In fact, Madison didn’t think
it needed a Bill of Rights and he spent the whole
ratification process telling everybody pretty much that. So why didn’t they have a
Bill of Rights to begin with? They should have one. They should have done it in
Philadelphia that summer. Why didn’t they do it? You can invent all
kinds of reasons, but the real reason is they
were tired and they wanted to go home, and they did. And so, it was a blunder. They should have– But
anyway, what happens is that Madison says, “All
right, I don’t really believe that we need these,” what they
call as parchment barriers. Republics don’t really
need Bill of Rights. Monarchies need Bill of
Rights to protect them from arbitrary power
for the monarch. Republics shouldn’t. Plus, once we started
listing the rights, we might forget some, right? And most of the states
already have these things, so we don’t really need these. What persuades them? There’s a movement called the
second convention movement from all the states that have
had recommended amendments. It’s led by Patrick Henry in Virginian George
Clinton in New York. They said, “Look, these are
things we think should be in any real document that we,
you know, that represents all of us, and therefore,
we think we need to have a second convention.” A second convention is a
recipe to undo everything. I got to stop this second
convention movement. They way to stop it
is to show the people in the different states that
are concerned, “We’re listening to you, here, you’ve made
these recommendations. We’re going to take them.” OK. If you try to
figure this out and nobody has done
this recently, I mean after some 19th century
historians here but like, well, what were the recommended
amendments? You got to go figure
out what they were. There’s like 227 of them. There’s a lot of repeats though. And if you come down, there’s
about a 120 total amendments. When Madison’s writing the Bill
of Rights, he is not looking up at the heavens and thinking
is the platonic truce I’m about to discover? He’s looking at these
amendments and saying, “Which are these do I
want to keep alive?” There’s every state
that made amendments, made a recommendation
along the following lines. Tax contributions from states
shall be voluntary rather than mandatory. [ Laughter ] Deep-six that one, baby. We’re not going to
let that one come up. OK? There’s one that he
puts in that was his– that was not recommended
by anybody in the ratifying
conventions but that he liked, “The federal government
has an executive veto over all state laws.” He liked that. He put it in. The Senate took it out again. OK? Now here’s one
that’s controversial today and I’ve mentioned it for that
very reason, Second Amendment. When I run into people who
they tell me they got Second Amendment rights, I
say, “No, you don’t, you got Scalia rights.” [ Laughter ] You don’t have Second
Amendment rights, because that’s not what
the Second Amendment said, that’s not what Madison
intended, that’s not what the
House of approved, that’s not what the
Senate approved, that’s not what a single
state that ratified approved in that particular moment. And if you’re making a case on
the basis of original intent, this is the capital occasion for
a violation of that principle. This is what he wrote,
this is what Madison wrote. “The right of the people to keep and bear arms shall
not be infringed, a well regulated militia
being the best security of a free country,
but no person– no– no person bearing
religious scruples of– with religious scruples of
bearing arms shall be compelled to render military
service in person.” He is responding to
request from six states, worried about the creation
of a standing army, worried that national
defense will be in the hand of a federal professional army, because there’s stuff being
talked about by that– by– by the various– by Washington
himself as a matter of fact. And so, that’s what
he’s responding to, the threat of a standing army. Who made any recommendations
about the right to bear arms? Nobody, not a single person. Why? They didn’t think
it was threatened. It had never been threatened. It’s not about your
right to bear arms, it’s about your obligation
to serve. That’s what it’s all about. And go back and read
the transcript, read Madison’s letters, read
the debate in the House, read the debate in the
Senate, read the debate in each of the state ratifying
conventions, then read DC versus Heller, it doesn’t
mention any of that, nothing. Here’s a document purported
to be about original intent as a poster child
for the originalist– judicial philosophy
and has nothing to do with the original intent of
Madison and all those people that voted for this amendment. If you believe in the right
to bear arms, you can hold onto that belief, but I believe
I got a right not to get shot and I’m holding onto
that belief too, OK? [ Applause ] And let’s– let’s
go forward and try to balance those
two things out, OK? And don’t come to me
with all this crap about your Second
Amendment rights. Because you don’t have
any, unless you serve in a national garden,
it’s not the same thing. The Second Amendment
is an anachronism now. It doesn’t really mean anything. And so, I’ve actually coined
a new phrase and I’m going to leave you with
this and leave you with hopefully some questions. We– You know, we’ve talked
about original sin and slavery and racism or like
the original sin. I’ve come up with this new
phrase, the originalist sin. We’re going to hear a lot about
this because there’s going to be a lot of people
appointed to the Supreme Court over the next five years and
you’re going to hear them come up and tell you what
Roberts said, you know, I don’t call balls and
strikes, I mean, I don’t– I just got balls and strikes. I don’t decide on
strikes zone, right? And I was saying this at
dinner, by the way, Mr. Roberts, there was no such thing
as baseball in 1789. [ Laughter ] What they do in this
cherry-pick in the past for their own particular
political convictions, in the same way that the Warren
Court cherry-picked the past for Brown versus
Board of Education, in the same as the other
court cherry-picked it for Roe V. Wade. By the way, there’s
nothing about privacy in the Constitution,
right of privacy. It’s a political agenda, but
it’s the right’s political– the right wing’s
political agenda and they have the majority. The whole doctrine that
we should look back on the Constitution as some sort
of depository of eternal wisdom that can be divined now
is a preposterous idea. Here’s a man, Jefferson,
who actually doesn’t believe in the Constitution himself. He says, “Some men look at
constitutions with sanctimony as reverence and deem them
like the Ark of the Covenant, too sacred to be touched. They ascribe to the preceding
age, my age, of wisdom more than human and suppose what
they did to be beyond amendment. I knew that age well, I belong
to it and labored with it. It deserved well of its country. But I also know that laws
and institutions must go hand in hand with the progress
of the human mind. As that becomes more
developed, more enlightened, as new discoveries are
made, new truths discovered, institutions must advance also
and keep pace with the times. We might as well require a
man to wear still the coat which fitted him as a boy, as
civilized society to remain ever under the regime of their
barbarous ancestors.” Jefferson spoke for all the most
prominent members or all of them or the revolutionary
generation in urging priority– posterity, excuse us–
an urging posterity not to regard their political
prescriptions as holy writ. The one intention they all have
is not to pay any attention. It is richly ironic that one of the few original intentions
they all shared was opposition to any judicial doctrine
of original intent. To be sure, they all
wished to remembered, but they did not
want to be embalmed. Thank you very much and
I’ll take some questions. [ Applause ] There are microphones down here. If anybody– This is
a pretty big audience and if you’re sitting
in the middle of this, you got to be pretty brave. It’s like somebody is getting an
academy award from the back row, you know, and that– but
I’m more than willing to try to take some questions
and, as an old teacher, would most like to have
somebody ask me some. If you got it and you
don’t need the mic, I’ll repeat it from out front. Good, here comes somebody. He’s the head of the honors
program at the university so this better be good. [ Laughter ]>>No pressure there, thank you.>>Yeah.>>Thank you for
a wonderful talk. We’re all aware that there are
fundamental elements that were around at the time of the
origins of our country that we still grapple with today
among the question of slavery and large versus small states. In your book, you speak
to Washington’s concept of unity emerging in
part from his experience of the continental army. How fair would it be to say that there’s a scarlet thread
throughout American history that also links American
identity with the military from that time forward
till today?>>Last thing, not quite. I mean, Eisenhower
fits that, but– and Grant do, but it’s a
two-part question, I guess. I mean, help me with this. But that first of all, to what
extent does Washington’s early career shape his later
carrier– his early carrier, I presume referring to
his time during the French and Indian War as a soldier? Yeah, I’ve written a biography
of him so I thought about this and it’s not off the top. As I mentioned, I think
to you at dinner, I say, Adams went to Harvard, Jefferson
went to William and Mary, Washington went to war. He– His education was of a
more fundamental realistic kind. And he became a realist,
because he knew– I mean, guys next to him were
having themselves disemboweled. At the Battle of
the Monongahela, he had three horses,
shot up from under him, his entire command was
wiped out, he lost his hat, had four bullet holes in his
coat, he was never touched. He– You know, it’s the scene in
like “Apocalypse Now”, you know, where the, you know, the company
commander doesn’t believe he can be killed, you know, the
mortar rounds are breaking all around him. But it’s also more
than just that sense. And during the war– During
the American Revolution, he does this, he purposely puts
himself at risk many times, like on the top of a parapet
at York Town and, you know, the shells are going off around
him, as his staff [inaudible], he said, “The men
must see me here. The men must see me here.” But that form of honor heroism
isn’t the most important thing. He’s a realist. He– And he’s immune
to all utopian schemes. This makes him very
anti-Jefferson. He believes that nations abide– obey their self interest
but not their ideals. And all treaties are temporary, as long as your interest
is there then when it stops, it stops. He’s tough. He’s a real toughy. And what he would say to us
now, I mean, the prescription that he makes in the farewell
address is essentially isolationism, which holds
true for over a century and it’s not going stick now, we can no longer be
an isolationist power. But I think that, you know, one
of the things that I’m speaking from my own convictions here
and having thought about this in terms of Washington’s
life, when the Cold War end– you know, we were very
thoughtful at the end of World War II about how
we were going to proceed. You got George Kennan, you
got the Containment Theory. It’s very– It’s
impressively thought through. Nothing like that happened when the Soviet Empire
collapsed in 1989-’90. Like nothing, you know,
we didn’t go through, “What does this mean?” Theoretically, it should have
meant a fundamental reduction on the size of the military. The military didn’t
get reduced at all. They had to waste time talking about peace dividend,
that never happened. But the– Like there is
not fundamental, realistic, strategic appraisal of
the American interest. I mean, what is our strategic
interest in the Middle East? What? Purge Israel? Yeah. Oil, not anymore. I mean, that’s an interesting
to– worthy of debate question, but until you have strategic
options that give you, you know, clarity– or there are some
things that we should do and some things probably we
shouldn’t, we’ll do everything, which is what we’re doing now. And it’s unsustainable. But that’s not really
answering your question. It’s using your question to
say something I wanted to say. [ Laughter ] I apologize. Yes, sir?>>It sounds like there’s
always been small groups of people very much
doing what they want. At what point did it become
necessary to give it the cup or this is a democracy
and what the people want?>>Well, the interesting fact is that the term democracy doesn’t
get used as anything other than an epithet until the second
decade of the 19th century. You know, you can– if sometimes, you’ll read
like histories of the 1790s and when Jefferson’s
party comes in and says, the Democratic-Republic
fight, that’s not right. It does not call
the Democratic– It’s called the Republican
Party. And it– It’s not the basis for
the current Republican Party, it’s the basis for the
current Democratic Party, which is really crazy. But democracy is an epithet
and the Constitution is created by people who are
not antidemocratic but they are pre-democratic. They don’t believe the
people can be trusted and this is rather relevant
for our time right now. If you read Federalist 1 and
Federalist 85 by Hamilton, what he says is Republics– because they have
a Democratic base, are most vulnerable
to demagogues. That’s how the Republics will
get brought down by demagogues. [ Laughter ] [ Applause ] And the Constitution is
essentially a filtration process so that you filter popular
opinion through layers of deliberation, each higher
than the other and more refining so that what comes out
is more likely to be in the public interest. The public interest res publica
is not often the same thing as what’s popular. In fact, very seldom, the
public introduces the long-term interest of the people
which at any given moment, the people don’t
usually understand. Guess what? It hasn’t changed. And that’s what the Constitution
permitted and that’s in a pre-democratic
era that no long– I mean, it hasn’t started
talking about the wisdom of the common man [laughs], I
mean, you know, like, you know, that hasn’t appeared yet,
that’s Jacksonian stuff. So that they’re created– The Constitution and the
founding occurs in this moment when it’s open to talent
in a way that Europe and England certainly
isn’t, I mean, Hamilton would have
been nothing, Hamilton was literally
a bastard, OK? Franklin would have
remained the bookseller, Washington would have remained
major in the British Army, Adams would have been a
country lawyer, nothing more. These people were propelled
but they really didn’t believe in Democratic values
in the way that comes in to existence in
the 19th century. It’s pre-democratic and I
think that’s the strength to the Constitution. It’s a document–
And I mean, I think– oh boy, I’m really
getting too personal here. I think the Republican Party
needs to go back to basics and need to– they need to
lose this election big time, the best thing for them
is to go back to basics and give us some responsible
party on the center right. And when they do that,
go back to the very term “republic,” that’s
what they are. There in, you know– and so build your party
with that as a core idea. Theodore Roosevelt
understood that, Abraham Lincoln understood that, I’m afraid Ronald Reagan
never understood that, OK? But I’m talking too much
about my own convictions here. Ask me a good funny question. Yes sir? We have one
more then we got to– I think we got to
sign books here.>>Do you believe that the
founding fathers intended the Supreme Court to give
themselves the authority that they gave [inaudible]?>>No. [ Laughter ] The question was to what
extent did the framers of the Constitution, the
55 people who wrote it and some are 87, believe in the
principle of judicial review, namely that the Supreme Court
is the ultimate arbitrary of the Constitution, which had by the way has interesting
implications if you believe in original intent, right? All you can do is
recluse yourself. [ Laughter ] But, they thought that
each– this is a– I know this sounds crazy
but they thought each branch of the government was sovereign. Each branch could interpret its
own interest best by itself. That end up the– If you
read the Constitution on judicial power, you
tell me what the hell were they thinking. What they’re thinking is– let’s put together the last
thing we want this thing called the Supreme Court
to be is supreme. We don’t want that. You say– I would have said the
same thing in executive power. It’s like it’s very vague,
Washington establishes the power of the presidency in practice. It’s not there in the
Constitution in a clear way. But, Marbury versus
Madison is the decision that is usually cited as the
beginning of the principle of judicial review it’s
on 1802-1803 decision by James– by John Marshall. The– But it’s a weird
decision– you know what? I didn’t want to know. It’s weird because it’s– it announces the right to
interpret the Constitution in a way that the– that
he never ask to enforce. The real first– the
first real decision in the judicial review
principle is Dred Scott, 1857. That’s a substantive decision
and it was the wrong decision but it was based on the court’s
view of the original intent of the founders in terms of
permitting slavery to exist and defining the black as a– as property rather
than as a person. Sir, you get the last word–
actually I’ll get the last word, of course, but I’m silly.>>I’ll just follow-up when
that exchange and ask you this. If you’re right and I’m
pretty sure I agree with you that power judicial
review was not in the original constitution,
it was invented in Marbury and expanded, it certainly
is recognized now–>>Yes, it is.>>– and seldom challenged. Is there anywhere to go with
that or is it simply the idea that the– that the
Supreme Court is in charge of deciding what laws
Congress can pass? Is there ever any way
for that to go back to what you think was
the original intent?>>No, I don’t think
we can go back. I mean, I think– — short of that, you know, you don’t have an
ultimate arbitrary. You know, in a population
this size, you need that. I mean, I think what they– the
decision they specifically made in 2000 to give the election to
Bush, oh boy, that’s really bad when this– it comes
down to, you know, a five to four decision
in the Supreme Court. I do think that what
we are going through now is the
realization as a people that the Supreme Court
itself is a political body. It’s not in super
communication with the gods, OK? I’m telling you, I know
a lot about the founders, none of those people were gods. They were all imperfect. And I don’t know too many
Supreme Jusctices but none of those people have
direct communication with the gods either, and that
we want to believe that the, you know, when the seven
members of the court sit down, there is this process
of deliberation that is sophisticated
and nonpartisan. That’s not true. And in fact, it’s
never been true. It’s just that the conservatives
have the majority right now. There are certain, you know, cases in which certain
judges behaved in a really remarkably
bipartisan way. If you go black voted against,
you know, who’s a member of the clan, you know,
voted for civil rights. But what’s being exposed
to us and we don’t like it, I understand why we don’t
like it, that’s like– I used to believe my
father was omniscient too. And– But these people
are just other people. They’re not– They’re
politic, and the level of politicization that’s
going on now with regard to the court is unfortunate
but that’s what it is. And I mean, if Hillary wins, she’s going to have several
different appointees. I have some reason to
believe from sources that cannot be mentioned that
there are other judges ready to retire, that you
wouldn’t think of as the ones ready to retire. Anyway, but it’s
become, you know, a country that’s highly partisan
and controversies are really, really difficult, the
importance of the court as the final adjudication
process becomes even greater. It really does. Therefore, let’s get it back. Yes, sir?>>I sensed from your
book that Hamilton and Clinton hated each other.>>Yes. Now, wait a minute,
this is not Hillary, OK?>>No, no. [ Laughter ]>>This is another Clinton. This is George Clinton,
Governor of New York and former revolutionary
war hero.>>So tell us a funny
story about these two guys and how they threatened
to secede from each other and [inaudible].>>Oh that’s putting
real pressure on me here. I can’t come up with
a real funny story now but Clinton was governor of New
York and he controlled New York. He was the boss of New York. And so, there was the debate
on ratification in New York. This isn’t funny but it’s
a good point to end on. Jay and Hamilton were arguing
for ratification in a situation where they knew they
had no chance of winning, none whatsoever. And so, the name of the game
was to delay the actual vote until they heard from Virginia, which they presumed
would be the ninth state. And at that point, all
the debate is irrelevant. You got to go along. It turns out Virginia is not– New Hampshire beats
him to the punch, OK? And uninexplicably votes– [inaudible] run before
ratification. But Hamilton says the most
important thing I can do is have relay teams of horses set up between Richmond
and Poughkeepsie. More important, anything
I said or wrote in the Federalist Papers,
it’s if we can get the word from the Virginia convention
in Richmond fast up to here which is being held in
Poughkeepsie, New York, that’s where– and that’s what
he did and actually rode one of the horses himself
toward the final round. He’s an attractive guy. I’m jealous as hell of Ron
Chernow because he’s been so lucky in having a brilliant
genius like Miranda do Hamilton and it is a genius work, but
it’s introduced Americans to the 18th century in
a way that is wonderful. It’s just wonderful. [ Inaudible Remark ] Yeah, except though
the end– I mean, yeah. I mean like I’m– I’m an Adams
guy more than a Hamilton guy and Adams hated Hamilton
towards the end. But like towards the
end, Hamilton is– he’s, you know, he’s– you don’t
want to turn power over to him. He’s ready to invade Mexico,
you know, and he’s in favor of the Alien and Sedition Acts. He’s ready to take over Mexico and all Latin America,
crazy schemes. And he’s– he’s– when his
younger son is killed in a duel, he really goes through some
sort of emotional crisis and he discovers God
again or, you know, the bible and he’s different. He’s different at that stage. But early on, like he’s– he’s
a genius and he’s audacious. And he is a former political
leadership that we haven’t seen in a hell of a long time. It’s probably almost
impossible to get it now. But he’s dangerous,
he’s dangerous. He knows about demagogues
because he could be one himself, so could Burr and that’s the
reason they hate each other. But if you haven’t seen it,
it is going to travel I think and it’s going to be
on PBS too, it’s great. Thank you for having me. [ Applause ] [ Music ]

Leave a Reply

Your email address will not be published. Required fields are marked *