Wednesday, September 28, 2016

Constitutional Convention of 1787 was Not (as previously thought) a Runaway Convention

Before the present century, it was generally held that the Constitutional Convention that met in Philadelphia in the summer of 1787 was a “runaway convention” that had no legal authority to write a new constitution, and that it did so over the head of Congress and in violation of the Articles of Confederation, which then constituted the Constitution of the United States. This has turned out to be a great historical myth, one that has been dispelled only within the past few years. 


A look at contemporary documents—always the gold standard of the historical method of research—has now shown that the Constitutional Convention of 1787 was not a “runaway convention” at all, but was entirely within its mandate. While Congress, under the then-existing Articles of Confederation, had issued a recommendation that the convention not do anything beyond modestly amending the Articles, the STATES had created the Congress and the Articles of Confederation, and the STATES lawfully reserved the right to abolish them in favor of an entirely new structure. All but two state delegations to the Constitutional Convention had been commissioned by their states to improve the government by virtually any means, and they saw writing a new constitution as within this mandate. The Confederation Congress's recommendation to the contrary was, therefore, non-binding, and only two states, New York and Massachusetts, paid attention to it. Since Rhode Island and Vermont (the fourteenth state) did not participate in the convention, there were twelve states at the Convention, ten of which were within their mandates when they opted to replace the Articles. 


Because the New York and Massachusetts delegations did not have such a mandate, most of the delegates from these two states walked out of the convention early on. One delegate, Elbridge Gerry of Massachusetts, remained at the Convention and participated in the discussions but deliberately refrained from signing the Constitution; however, two other Bay Staters, Nathaniel Gorman and Rufus King, did sign the Constitution, along with the lone remaining New Yorker, Alexander Hamilton. These three or, at most, four delegates might be considered “runaway delegates.” In a more limited sense, the five delegates from Delaware might be considered runaway delegates, too, because their commission from their state forbid them to endorse any plan that gave each congressperson a vote rather than giving one vote to each state. Otherwise, however, these delegates, like the rest of the Convention, had been authorized to make the Constitution better by any means. As scholar Robert Natelson says in his article “Amending the Constitution,” if only “eight of 39 signers exceeded their authority [this] leaves one well short of the usual charge that the Philadelphia convention as a whole was a ‘runaway’” (Natelson, p. 9).

As a final rejoinder to the argument that the Constitutional Convention of 1787 was out of order, the president of the Convention, George Washington, acted on behalf of the Convention in submitting the new Constitution to the Confederation Congress, which did not reject it formally or informally. Congress merely passed it on to the states without comment, thereby giving the new Constitution procedural legitimacy.

This issue is discussed in the article 
Amending the Constitution by Convention: A More Complete View of the Founders' Plan by Robert G. Natelson, cited above by page number, see especially pp. 8-9.


See also “A Response to the Runaway Scenario’,” also by Natelson.




Friday, September 16, 2016

The Unlikely Survival of Hitler's Lies

I am re-reading the book Hitler’s First War by Thomas Weber. It is an eye-opening revision of Adolf Hitler’s World War I career, based on various sources but principally the archives and official account of the Sixteenth Bavarian Reserve Infantry Regiment (RIR 16), the unit Hitler belonged to during the First World War. Weber had to blow the dust off of these sources because none of Hitler’s previous biographers had ever bothered to consult them. Yet these are the oldest non-Nazi sources of information about the unit made famous by Hitler’s and the Nazis’ accounts. How does this record match up with the official Nazi version, the same version that became the official scholarly version even after Hitler and the Nazis were discredited in every other respect?

They do not match up well. Hardly at all, in fact. Weber’s conclusion about Hitler, that he lied about his World War I experience, might seem unsurprising to the uninitiated. Indeed, it should not be surprising. Yet what is surprising is that some four generations of historians and Hitler biographers actually believed Hitler’s lies. Weber cites several famous histories and biographies of Hitler that take Hitler’s lies as if gospel:


Alan Bullock, Hitler: A Study in Tyranny, New York: Harper & Row, 1962.
Joachim C. Fest, Hitler, New York: Harcourt, Inc., 1974.
John W.Toland, Adolf Hitler: The Definitive Biography, New York: Anchor Books, 1976.
John Keegan, The First World War, New York: Knopf, 1999.

These and other seminal works suggest that Hitler was a brave and dutiful soldier who, as a dispatch runner or messenger, had a more dangerous job than most other members of his regiment. This myth is based on a variety of tainted sources, which may be reduced to Hitler himself combined with Nazi Party solicited and approved propaganda. A variety of accounts appeared during the 1930s, even before Hitler came fully to power, that supported Hitler’s own account in his semi-fictional memoir, Mein Kamp, published in two volumes in 1925 and 1926.

Both Hitler and his hagiographers told of his daring missions in the trenches of the Western Front. The trouble, says Weber, is that Hitler rarely had to go into the trenches, and only certain aspects of the war ever came behind the lines where Hitler spent most of his early military career. (One of Hitler’s Nazi-era biographers wrote that he and Hitler were shot at by British machineguns on the streets of Messines, a town that was securely behind the German lines and therefore not subject to enemy machinegun fire.)

The trick is that while Hitler was, indeed, a dispatch runner (German: Meldegänger), but he was a regimental runner, meaning that he rarely was asked to go into the trenches. He moved between the regimental headquarters—in one sector located in a castle—and the battalion headquarters located at the very back of the trench area. He would give the battalion commander a dispatch from regimental HQ, and the battalion commander would give it to another runner who would carry the message through the trenches to the company commanders. It was not Hitler’s job to venture beyond battalion HQ.


Hitler did serve in combat beside his comrades in First Company from the end of October 1914 when RIR 16 arrived at the Front in Belgium until 9 November when he became a regimental dispatcher, a period of little more than a week. Being anywhere near the Front was certainly dangerous, and Hitler had some near misses with death during those first weeks as well as later, although his risks were greatly reduced and became less frequent immediately with his assignment to the staff area around the regimental HQ. Also, Hitler exaggerated his achievements. Hitler and his hagiographers give him nearly full credit for rescuing his commanding officer, Col. Philip Engelhardt, for example, mentioning that he was assisted by one fellow dispatcher named Anton Bachmann; however, the official regimental history, published in 1932, gives primary credit for the rescue to Bachmann, acknowledging assists by Hitler and two other men.


When I first read Joachim Fest’s biography of Hitler, I was struck by the contrast between Hitler the pre-war slacker and Hitler the dutiful soldier. From my own experience with twenty-something aimless-ness, I knew that it would be unlikely for me to become dedicated and conscientious just because I joined some organization. Fest said so, so I accepted it even though my gut told me it could not be. It turns out that it was not so. Hitler was a lackluster soldier, which is why he never advanced in the military. Weber says that he did not even attain the rank of corporal which his supporters all pretended that he did. He was Private Hitler.


More significantly, Hitler’s claim to be representative of his unit was a lie of mythic proportions. He neither served beside them in the worst of it nor shared their views. One of his biographers reports that Hitler was involved in the five-month long Battle of the Somme for three months. In fact, he was barely near the engagement for four days. His unit moved into trenches near the Somme at the beginning of October 1916, three months after the battle began, and an enemy shell found its way behind the lines a few days later, killing several of the regimental staff and wounding Hitler. He was sent to a hospital deep in Germany while the rest of his comrades experienced the worst fighting they had seen to date. Hitler completely missed what his comrades were subjected to over the next two months.

Notably, Hitler had been behind the lines during the famous Christmas Truce of 1914. His company experienced it, but Hitler was at HQ the whole time and could only offer his disapproval after the fact but without first-hand knowledge.


It is difficult to know what Hitler was really thinking during this time. He rarely discussed politics explicitly, although there were hints. He certainly hero worshipped his superiors. He got along with his sergeant, Max Amann, and reportedly did anything asked of him by the officers. Aside from helping to save Colonel Engelhardt’s life, he served as a beater for a later commander when he went hunting for quail. Curiously, he once remarked that a Jewish radio operator was an all right fellow. “If only there were more Jews like him.” While this is a clearly bigoted remark, it is far from what would be expected from a virulent anti-Semite such as Hitler later claimed to have been already. We must question to what extent Hitler had already formed his prejudices before 1914 as he later claimed.


On the other hand, Hitler did say, in a letter to one his only two war-time correspondents, Ernst Hepp of Munich, that he fervently wished to punish the British and to expel all foreign influences from Germany after the war. What did he mean by that? Did he include Jewish people among “foreign influences”? Weber says that the views betrayed in that one letter fell outside of mainstream German politics before World War I, and confirm that Hitler was already dabbling in fringe political views by early 1915.



When Hitler’s party later began to publish books and articles about Hitler’s heroic exploits during the war, there were some naysayers. A newspaper published accounts that contradicted Hitler’s version in the early 1930s. Hitler sued. The newspaper could not provide any corroboration, however, and Hitler won the case. It is largely because of this victory that the court of public and scholarly opinion has ever since held to the myth of the brave and dutiful Corporal Hitler. The trouble is that the officer from Hitler’s regiment who provided the newspaper with the unflattering information about Hitler’s first war was probably telling the truth, but he did not dare come forward and testify. He liked continuing to breath, and even though the Nazis were not fully in power before 1934, the Stormtroopers led by arch thug Ernst Rohm were already on the march everywhere in Germany, and no one wanted to cross them. If you impugned Hitler, Rohm’s thug would get you. One of Hitler’s hagiographers, Hans Mend, was said to be willing to tell “the truth” about Hitler’s war record to anyone who provided him with a drink. He said in 1932, "If my book had cited all the details of what I deliberately suppressed... Hitler would certainly not have emerged as a great hero.” He soon fell out of favor with Hitler and died in prison in 1942.





Once Hitler consolidated his power in 1934, anybody who contradicted any jot or tittle of Nazi propaganda risked their life. After that, Hitler’s heroic exploits became the stuff of school textbooks at every grade level. Whether it passed the smell test or not, it was the truth because the state said so. "When I returned from the War,” Hitler said in 1941, “I brought back home with me my experiences at the front; out of them I built my National Socialist community." This was an exaggeration at best and more than likely a lie because he had not known the company of most war veterans, but only that of men who were behind the lines. Most of the men of his unit who saw the worst of the war, Weber says, tried to return to civilian life and very few became Nazis. What remains remarkable is that even after the Nazis’ defeat and repudiation, historians continued to think that Hitler’s exoneration in libel court on the eve of his taking power actually proved that the fabrications he foisted on his own people should continue to be believed by the world from which his stain had otherwise been removed.

Translating French Jokes into English and English Jokes into French

Combien de mamans a votre fils?

Trans.: How many mommies does your son have?  La cage aux folles (1978 French comedy film, originally a 1973 French play; afterward, The Birdcage, 1996, an American remake.) 

This joke is all about context: A conservative man has just discovered that the parents of the young man his daughter wants to marry have deceived him by presenting two different people as the youth's mother. Little does he know, but one of the mothers is a cross-dresser.


Mon garçon, ton grand-père a vécu dans les collines de l’Autunois ces soixante-dix ans, mais je peux pas te expliquer le passé composé.

Trans.: My boy, your grandfather has lived in the hills of the Autunois for these seventy years, yet I cannot explain to you the passé composé. — After a 1970s New Yorker cartoon

For all I know, this New Yorker cartoon caption was taken from a French cartoon, but I only saw it in English, and, knowing the New Yorker's proclivity for erudite humor, I suspect it was not originally published by the French.


J’ai perdu mon travail. En fait, j’ai PERDU pas mon travail.  Je sais où le trouver. Mais quand j’y vais, quelqu’un d’autre fait le travail.

Trans.: I lost my job. Actually, I didn’t LOSE my job. I know where it is. But when I go there, someone else is doing it. — After comic Robert “Bobcat” Goldthwait

I translate this joke for no particular reason other than that I like it and wanted to see how it might look in French. The joke may not translate because it is based on the ambiguous concept of losing something by having it taken away versus not knowing where it went. A native French speaker might be needed to determine the best way to convey both meanings. Notice that I use the exact same verb twice in the French version but two different forms of the verb in the English version.



Thursday, September 15, 2016

One Immigrant's Biography Touches on America's Polyglot History

Albert Sieber was born 27 February 1843 in what is today Bad Schönborn, Baden, Germany. His father died when he was two, and, in 1851, his mother, Eva, brought her eight children to the United States, possibly fleeing conditions resulting from the aftermath of the Revolution of 1848-1849, which threw the German Confederation into turmoil. Sieber grew up in Pennsylvania and Minnesota, speaking German with his family and English with their American-born neighbors.

In 1862, he joined the First Minnesota Infantry and fought in the American Civil War. He was wounded at the Battle of Gettysburg in 1863. After the war, he prospected for gold in California and Nevada, and then managed a ranch in Arizona, which became his home state for the rest of his life, although he spent some time in other states and in Mexico. He learned to speak Spanish as well as three native languages including Apache.

In 1871, he was made Chief of Scouts under U.S. Army General George Stoneman. He fought against Apaches and other tribes for the next fifteen years. In the early 1880s, he met fellow scout Tom Horn (1860-1903). Some sources say that Sieber taught Horn to speak German, while others say that Horn grew up in an area in Missouri where he had already learned the language from German immigrants. What does seem to be certain is that the two men frequently spoke German with each other and that Horn also became fluent in Spanish and Apache. The two interpreters were instrumental in negotiating the surrenders of several chiefs including Geronimo (who, BTW, is said to have been fluent in Spanish).

As well as occasionally helping to track down outlaws, Sieber was often called upon to find Apaches who had left reservations. Although Sieber dutifully fought against and arrested Apaches, he also developed a deep respect for them. In 1890, he was discharged from government service after he protested the mistreatment of Apaches at the San Carlos (Arizona) Reservation.

After a fruitless return to prospecting, Sieber went into the construction business and became supervisor to a road crew made up of Apaches. He was crushed by a boulder during a construction project on 19 February 1907 and was buried in Globe, Arizona.

This story reminds us that, although we tend to think of American society as relentlessly monolingual, most of American history has been characterized by contact between different cultures and languages. Notably, the languages of the native inhabitants of the Americas had to be dealt with by all of the first explorers and immigrants from Europe. I happen to have an elementary history textbook from 1867, which spends far more time on the native population than the history books I was raised on. It was deemed important, before the frontier closed at the end of the nineteenth century, to know who and where the Indians were.

In addition to Native Americans, the Americas were divided up between different European colonial powers including Britain, France, Spain, the Netherlands and Portugal. British settlers in North America especially came into contact with French speakers. As the United States pushed into Florida, Texas and the southwestern territories, Spanish quickly became important. This is to say nothing of the waves of immigrants, first from Germany and later from many other lands, who made the largest American cities sing with the sounds of other languages. (New Orleans, Louisiana still recognizes its heritage of Spanish, French, Afro-Caribbean and even German immigration.)



It was only a relatively brief period in the twentieth century when a majority of Americans settled into the complacency of not feeling a need to learn a foreign language. (With roots in the nineteenth century; see John Dewey and James Garfield.) That era has ended in the present century. We have many more non-English speakers flooding into the United States, and, like it or not, our connections to the rest of the world are becoming closer than ever. All for good and ill.


Addendum: American Presidents and Foreign Language Study


George Washington was monolingual and had reason to regret it. As a young officer fighting for the British against the French, he was forced to sign a treaty that was written in French. He could not understand the document but his own interpreter assured him that it was acceptable. He signed it and later found out that he had admitted to British atrocities against the French. His military career was on hiatus for several years as a result of the incident.


John Adams only knew classical languages, principally Latin. He was at a disadvantage when he went to Europe as a kind of ambassador-at-large during the American Revolution. He did not speak French or Dutch, and that made it difficult for him to achieve agreements with these needed allies. He was jealous of Benjamin Franklin whose command of French made him more popular at the French Court.


Thomas Jefferson spoke French and Italian and could read at least five other languages.


James Madison studied modern and classical languages, including Hebrew.


Most college educated presidents had to learn a foreign language, most often Latin.


John Quincy Adams, son of John, spoke French and other languages fluently, which came in handy in his successful stint as secretary of state before he became president.


Martin van Buren was descended from Dutch settlers, and, surprisingly, since his ancestors had been in New York since colonial times, van Buren still spoke some Dutch, which he had learned from his parents.


Abraham Lincoln only knew a few Latin phrases that were necessary for his legal work. He once wrote that, on the frontier where he grew up, anyone who knew Latin was looked upon as some sort of wizard.


West Point graduates such as Ulysses S. Grant were all required to study French, but some were better at it than others. I do not know how well Grant or other West Pointers who became president did in foreign languages.



James Garfield was the second president to be assassinated in office and never lived long enough to make an impression on history, but his other occupation was in education. As a member of the board of trustees of Hiram College in Ohio, he steered the curriculum away from classical subjects and more toward a peculiarly American-centric curriculum in which foreign languages, especially classical ones, were de-emphasized. This was paradoxical because Garfield himself had taught Latin, Greek and German.



Although Harry Truman did not attend college, he had four years of Latin in high school.



Jimmy Carter read the Bible in Spanish as well as English.



The above list is not exhaustive. Any college graduate in an earlier era had to at least attempt a foreign language, and Woodrow Wilson, the only president who earned a Ph.D., had to have studied several languages and to have mastered at least one foreign language. (German?)

Tuesday, September 13, 2016

When Political Leaders Cover up Their (Bad) Health

I had pneumonia when I was 40 years old. I did not know I had it. I just thought I had a bad cold. I did not feel good on Monday, but I went to work all week. I felt worse every day.

By Friday I felt terrible. I was having trouble breathing. My windpipe felt sore. I thought, “I’ll rest up over the weekend and get well by Monday morning.” Instead, I felt worse on Saturday afternoon than I had Friday. I now knew that this was no ordinary cold.

Sunday afternoon, I was nearly delirious, but I went to a doctor who was actually seeing patients on the weekend. He diagnosed pneumonia right away and injected me with an antibiotic before he gave me a prescription for it.

I did not go back to work until Tuesday.

At age 40, pneumonia is nothing to monkey around with. For someone who is nearly 69, even if she has her own personal doctor and can drop into “Chelsea’s emergency department” any time she likes, it won’t lead to a full recovery if she doesn’t rest and take proper medicine. Yet Democratic presidential candidate Hillary Clinton is playing with fire in seemingly making her health decisions subject to political expediency. The notion of some of her “defenders” that she is admirably “powering through” her illness by going to events is nonsense. She is now more wisely skipping her previously scheduled travel plans in order to rest. (She planned to make her get-together with California campaign donors into a teleconference.)

Covering up the bad health of a national leader or candidate is not new; it has repeatedly been a historical problem. In 1932, presidential candidate Franklin Delano Roosevelt carefully avoided displaying the fact that he had polio and could not walk without crutches—or, most of the time, even with crutches. It was no secret that he had polio, but he was always pictured so that his disability did not show. He was photographed being propped up by those around him, but the picture was always cropped to make it look like his literal supporters were just standing by him or were not there at all. FDR also developed serious heart disease, but that condition was also kept from the public, even during his last campaign for his historic fourth term. He died before he finished the term.

Before Roosevelt, President Woodrow Wilson suffered a severe stroke during his second term, and the White House kept it from everyone. Mrs. Wilson—née, Edith Bolling—essentially ran the White House, deciding who saw the president and even making policy decisions, albeit with the input of the president’s most trusted advisers. Congress suspected that something was wrong because Wilson stopped appearing in public, so a meeting at the White House with several congressmen was arranged. The President was having a relatively good day but sat throughout the meeting. When the congressmen left, they were somewhat satisfied although they had nagging questions. The White House kept this cover-up going for the better part of two years.

President Grover Cleveland had major surgery while he was president and covered up his illness (cancer of the jaw), treatment and recovery. People wondered where he was, but, after his recovery, he made an appearance and was able to put on a good show, so it was believed that the rumors about his health were false. A journalist who had correctly reported that the president had undergone major surgery was publicly humiliated and professionally ruined.

Now, by making a comparison to Roosevelt, Wilson, or Cleveland, I am only making a comparison in terms of medical information about a leader. I am in no way intending to compare Hillary Clinton to these presidents in any other way. (She should be so lucky.)

Nevertheless, when I compare her medical situation to that of German Chancellor and supreme dictator Adolf Hitler, her defenders will automatically assume that I am comparing her to Hitler in every way. I am not, of course. I am only making a comparison of the two individuals’ medical situations.

Hitler’s health was fairly poor toward the end of his rule. He suffered from Parkinson’s Disease among other ailments, but this was not generally known. His personal physician, Theodor Morell, told his patient that he was injecting him with vitamins, which the patient readily believed, although it was a lie. Morell was actually giving the leader of Germany a cocktail of which the primary ingredient was amphetamines. All Hitler knew was that, as weak and rotten as he felt beforehand, Doctor “Feelgood” Morell always gave him back the spring in his step.

Now, if Mrs. Clinton’s doctor is giving her drugs that cover up her symptoms rather than curing whatever disease(s) she might have, then she (the doctor) is doing neither her patient nor the American people any favors. My reason for saying this is that the evidence of Sunday, September 11, 2016, is that Mrs. Clinton was very weak when she left the public event at the 9/11 Memorial, but, within a very few hours, she was caught on camera practically dancing.

The people of the United States have been lied to about the health of their leaders before. This is simply selfish on the part of the leaders. If they are not healthy enough to lead the country through any emergency that might arise, they should refrain from running for or continuing to serve as president.

Thursday, September 8, 2016

Weather, Climate, History, and an Inquiry into an Interrogatory Anthem

Hillary Clinton, the Democratic Party's current presidential candidate, recently declaimed that Hurricane Hermine is the result of Global Climate Change, and she predicted future severe hurricanes due to man-made global warming.


Of course, anyone could predict future hurricanes. There have been hurricanes at the end of every summer off the east coast of North America every year since anyone has kept records. Such hurricanes have often been severe, and that leads us to consider the Storm that Saved Washington (DC).


From 1812 until 1814 (actually until early 1815) the United States was at war with the British Empire for the second time in history. For the first two years, the British were too preoccupied with a war against the Emperor Napoleon Bonaparte of France to deal with the United States, but after defeating Napoleon in the spring of 1814 and sending him into exile, Great Britain turned toward the United States with a vengeance.


Indeed, there was reason for revenge. In May 1814, U.S. Army Lieutenant Colonel John Campbell led a raid on Port Dover, Ontario, Canada, and not only destroyed British grain supplies but private homes and businesses, as well. Apparently this destruction of private property had not been authorized by Campbell's superiors, but the Canadians and British were incensed, nonetheless, and plans were made to visit retaliation on the American cities of Washington, Baltimore and Philadelphia. (They were also unmoved by the American claim that Port Dover was itself retaliation for British attacks on Buffalo and Lewiston, New York, in the previous year.)


On 24 August 1814, the British defeated American forces at Bladensburg, Maryland, which bounded the District of Columbia. Everybody who was anyone in Washington evacuated the city. British troops arrived within a day and found government buildings empty. They went to the White House and found that the President, James Madison, had fled. British officers ate Madison's food and drank his wine, disrespectfully toasting the president, whom they called "Jemmy," for his "hospitality." (Paul Jennings, Madison's house servant seems to have still been annoyed fifty years later when he reminisced that he had put dinner on the table for the Madisons only to later learn that uninvited British "guests" ate it.) Then they set about burning the White House and several other government buildings including the Capitol.


What occurred the next day snatched further victories from the reach of the conquering British forces. A powerful seasonal hurricane hit the Chesapeake Bay area and accomplished several remarkable things. First, its rains put out the fires, then a tornado killed some British troops and even picked up a couple of canons and deposited them several miles away. The storm also ravaged the British fleet parked in the bay. (A contrary view is that the storm also killed Americans and further damaged both public and private buildings in the city.)


The point is that the Storm that Saved Washington was more severe and traveled farther north and inland than many more recent annual hurricanes that travel from the Caribbean Sea to American shores. That was long before fears of global warming. It is not Climate Change. It's called weather.

Incidentally, the British next tried to do to Baltimore what they had done to Washington, but their attempts by both land and sea failed equally. One of the British in charge of burning Washington, Major General Robert Ross, was killed at the Battle of North Point while trying to lead his army to Baltimore. Though the Americans retreated from the battlefield, they regrouped and successfully held a line outside of Baltimore.


British Admiral George Cockburn next tried to bring Baltimore to its knees by bombarding Fort McHenry, but this did not result in victory for the British who were never able to capture Baltimore.


Famously, an American lawyer named Francis Scott Key had come to the British before the bombardment of the fort to negotiate for the release of an American being held prisoner by the British. During the Battle of Baltimore (13 to 14 September 1814), Key, himself, was held prisoner only to be released after the unsuccessful bombardment.


What makes this incident famous, of course, is that Key subsequently composed a poem based on his experience of watching the bombardment from the HMS Tonnant in Baltimore Harbor. This poem, "The Star-Spangled Banner," was subsequently set to music and became the national anthem of the United States.


It has always seemed curious to me that the United States did not settle on its national anthem until several decades after the Founding. In any case, it has been observed that you can tell that "The Star-Spangled Banner" was written by a lawyer because its lyrics are so inscrutable. Indeed, it consists of a series of questioning clauses that refer to something that is not named until well into the song and, actually, quite near to its end.


"O say can you see,"

[See what?]


"By the the dawn's early light,"


[What? What is it?]


"What so proudly we hailed at the twilight's last gleaming,"


[What did you hail (salute) when the sun went down? What were you looking at?]


"Whose broad stripes and bright stars,"


[Ah, at last a clue, if we didn't already know what this is about.]


"Through the perilous fight,"


"O'er the ramparts we watched, were so gallantly streaming,"


[How often have you heard such a convoluted sentence? The stripes and stars (or as we more often now say, the Stars and Stripes) were gallantly streaming over the ramparts as we watched through(out) the perilous battle (or fight), but Key has "poetically" obscured the plain meaning by switching the order of these clauses so that they are nearly backwards: "The fur, during the hour we combed it, was shedding all over the place."]


"And the rockets red glare, the bombs bursting in air,"


[Unquestionably, this is the most exciting line in the whole song, but notice that Key still hasn't come out and told us directly what he is talking about.]


"Gave proof through the night that our flag was still there,"


[At last, we are explicitly told that he is talking about the flag, in case we had not begun to guess. The above two lines are sort of asides, though, adding further detail, but still not getting to the point of the song's main inquiry.]


"O say, does that star-spangled banner yet wave,"


[OK, I have to admit that this line chokes me up every time.]


"O'er the land of the free and the home of the brave?"

[Did you know that this song mostly amounts to one long question? Only a lawyer could have written it.]









Saturday, September 3, 2016

Problems with the Constitution, Real and Imagined

The argument that the Framers of the United States Constitution were not perfect—while obvious because no one, after all, is perfect—is nevertheless worth discussing because I believe that there are right reasons and wrong reasons to criticize the project we call the United States under its unique Constitution. The United States is, indeed, unique and even exceptional in that there are few examples in history of a group of people coming together to consciously create a new country, deliberately attempting to construct a government that balances the authority of the national government with the rights of the constituent states and the people as a body of free individuals, trying to keep each from lording it over the others.


One of the arguments you often hear about why the United States Constitution is supposedly out-dated, is that the Founding Fathers lived in the eighteenth century and therefore knew nothing about the technology, geography or the politics of twenty-first century America. In this, the Founders are a bit like the father whose seventeen-year-old son thinks he is a know-nothing idiot, but by the time the son is thirty, he realizes that his father knew what he was talking about all along. (“Between the time I was 15 and 25, my dad got a lot smarter.”)


For example, did the Framers of the Constitution realize how big the United States was going to be? Well, it was Thomas Jefferson, a member of the founding generation, who made the Louisiana Purchase in 1804, thereby more than doubling the size of the United States, and, even before that purchase, many members of the founding generation expected the United States to grow larger. In the Federalist Papers, for example, Alexander Hamilton mentions the possibility of the country increasing in size when he observes that the United States was already too big for the kind of smallish government that many critics of the Constitution said they would prefer. (It is true, though, that Jefferson underestimated how quickly the land added by the Louisiana Purchase would be settled. He guessed two hundred years, but it was settled in less than one hundred.)


Another argument is that the Founders did not anticipate the changes in technology, especially in communications, industrial technology, and machinery (including weaponry). While it is true that they did not know what kind of technology we would have, they were men who lived in an era when many technological innovations were being made. There were new industrial processes being introduced, hot air balloons were making aviation at least remotely imaginable, and let us not forget that one of the leading Founders, Benjamin Franklin, discovered that lightning and electricity are the same thing and posited that electricity might somehow be controlled.


In the word “communications,” let us include both what we mean by it and what they meant. We mean systems for sending information, but they more often meant transportation when they used the word. They understood from history that roads and waterways are necessary to keep a large country connected. In establishing the United States Patent Office, the Founders understood that innovations would come in many different areas. They did not know what these new things were going to look like, but they expected that there would be new technology, and they did not see why these innovations would in any way make the Constitution obsolete.


It is the fact that subsequent generations have tried to treat new technology as if it were outside of the Constitution, when there is no reason for thinking so, that makes us look like fools and the Founders wise. For example, with the rise of electronic media such as radio and television, the United States government decided that just because these media were not mentioned in the Constitution, the government should be free to treat and regulate them in ways that the Constitution explicitly forbids the government to treat the printing press. This created a contradiction in the ways that broadcast station owners and newspaper publishers have been treated. They are treated similarly in some matters but differently in others. Journalists in both mediums supposedly have the same right of free speech, yet radio stations, but not newspapers, are licensed by the same government they report on and therefore can be intimidated by.



Part of the trouble comes from the legal conceit that the airwaves belong to the people. This doctrine is pernicious because, 1) all means that are theoretically owned by all of the people are never actually controlled by them; they are controlled by those who wield political power, and 2) not only do the people not own all of the airwaves in any meaningful sense, but neither do broadcasters. They can only lay claim to a specified number of narrow spots on the bandwidth. Thus, it might be more intelligent of us to assume that while the First Amendment to the Constitution mentions only the printing press, in principle it should be understood to cover electronic communications. If the Founders had known about them, they would have included them in the First Amendment.



An argument against the absolute language of the Second Amendment to the Constitution has been made on the grounds that the Framers had no idea of what the future was going to bring to the particular technology of weapons manufacture. This is demonstrably wrong when you look at the changes that were going on in firearms technology in the late 1700s. Franklin and Jefferson*, in particular, but other well-informed Founders, as well, knew that inventors were experimenting with new technology in weapons including multi-shot rifles and pistols. Widespread use of these new firearms was not yet feasible, but the Framers were aware of them and yet did not make exceptions of them. The right to bear arms was regarded as absolute. (Cannons were certainly widespread in 1787, and yet they were not prohibited. That fact alone speaks volumes.)


A related issue with regard to the Second Amendment is the change in the meaning of both the institutions and words in the Second Amendment. It reads, in whole, “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.” Now, what does “regulated” mean, and what did the Founders understand the word “militia” to mean? In Samuel Johnson’s "A Dictionary of the English Language"—first published shortly before the American Revolution and still in print in 1791 when the Second Amendment was ratified—one of the definitions given for the word “discipline” is “military regulation.” So a “well regulated militia” was one that was disciplined, that practiced maneuvers (marching and close order drill, for example) and target shooting. “Regulation” did not yet mean "restricted by government laws or rules." That meaning of “regulated” was only developed much later and mainly in the twentieth century.


What did “militia” mean to the Founders? Everyone in the Founding generation understood the militia to be the army of the state, loyal mainly to the individual state and not to the federal government, even though the Constitution provided for the requisition by the federal government of the militias in cases of national emergency. The critics of the Constitution (called anti-federalists) argued that under this subordinating relationship of the militias to the federal military, the militias would someday become nothing more than National Guards, mere adjuncts to the federal military rather than armies available to the states in case the federal government ever tried to seize power from the states. At the time, the Federalist Papers pooh-poohed this notion as alarmist and preposterous, but, of course, the critics were exactly right. (Alexander Hamilton and James Madison were more right than their critics were about things such as the anticipated increase in the size of the United States, but their critics were almost uncanny in their rightness about some other things.)


The idea that the rebellion of the states against the federal government might be legitimate under the United States Constitution seems shocking to us now, but what should be shocking to modern readers of the Federalist Papers is how the advocates of the Constitution casually suggest this course of action as a deterrent to overreach by the federal government. It is rarely mentioned that a likely reason for our different feelings about the subject nowadays has to do with the American Civil War as an enactment of the rebellion posited by Hamilton and Madison.


What Publius (the nom de plume adopted by both Hamilton and Madison in the Federalist Papers) has in mind is a situation in which the federal government (or “general government” as the Founders tended to call it) arbitrarily usurps the sovereignty of one or more states, and the states react to this by fighting back militarily. Publius further assumes that if this occurred, then all of the states would see that if the general government could do whatever it was doing to one or two states, it could do it to any or all of them, and, therefore, all of the states would join such a rebellion and collectively put the general government back in its place.


When the Civil War occurred and there was an actual rebellion by some states against the federal government, the issue turned out to be the dubious one of the right to own slaves, which less than half the states supported and more than half were against. Far from there being any recognition by all of the states that the slave states had a legitimate cause for rebellion, instead, a majority held the opinion that the slave states made their stand for sovereignty on illegitimate grounds. Consequently, the conflict became a hybrid of the two situations anticipated by the Founders: while the Confederate states raised their militias to rebel against the federal government, the federal government requisitioned militias from the remaining states to side with the federal military against the rebels.


Ever since the Civil War, the ideas of secession and armed rebellion by states against the central government have not been looked upon so liberally (not to say even as glibly) as they were by the Framers of the Constitution. Of course, we are lucky in our ability to look back on the Framers with the insights gleaned from intervening history. I am reminded of the argument that Publius makes against the anti-federalist critics of the Constitution who opposed the strong mechanism for national defense found in the Constitution. They preferred to just wait until there was a crisis and then appoint a temporary dictator. Why have mechanisms built into the Constitution for a muscular government with centralized authority over not only foreign policy but military might? Why should the United States keep a standing army in peace time? Why should the general government have broad taxation powers and unspecified powers to do whatever is necessary in the event of an international crisis? The Framers countered this argument: an ad hoc non-plan to appoint a temporary dictator during emergencies was too feckless to give America the confidence or her enemies the warning that we could be prepared for any crisis. (The wisdom of Publius’ argument here may be nevertheless questioned. After all, there are few mechanisms in the Constitution for quickly countering too unlimited power once it is granted to the general government and abused.)


By the same token, Publius’ argument that we should not be concerned that the general government might overwhelm the states and usurp their sovereignty, just because the states can, as a last resort, rebel against the general government militarily, is as feckless a non-plan as saying, oh, well, in a crisis, the states can collectively appoint a temporary dictator to see us through a crisis. Planning for military rebellion by the states as a way of reining in an over-weaning general government is no plan at all, and it is just as much an invitation to chaos as the anti-federalist suggestion of a temporary dictator.



The place where the Constitution of the United States is properly described as flawed is in its assumption that the strength of the states over the general government that existed at the beginning is permanent. The states were very strong at the time of the ratification of the Constitution, but their power gradually waned while the power and authority of the general or federal government increased. There are not enough measures in the Constitution to trigger nonviolent resistance by the states against usurpation by the federal government. Where there are such measures in the Constitution, there are insufficient mechanisms to animate them. Precisely those measures in support of state sovereignty that do exist have been undermined by those who have championed the centralizing of federal power over the states.



There are two approaches that have been adopted to undermine the few constitutional measures that support state sovereignty. One is the outright repeal of the measures, and the other is the non-enforcement and disuse of them. In the former case, the best example is the Seventeenth Amendment which changed the original constitutional method of electing United States senators. Originally, senators were supposed to represent the state governments, not the electorate of each state. Senators were elected by the state legislatures and, in some cases, were creatures of the legislatures, which could replace them when their terms expired—if not sooner—if a majority of state legislators felt that the senator was not acting in the interest of the state. Several years ago, the young man who was my representative in Congress expressed perplexity that anyone would think that it is not preferable for senators to being popularly elected. It is more democratic, is it not? I wanted to tell him that, when I was his age, I believed the same thing.


What changed for me was my understanding of the necessity for the states to be represented in the nation’s capital. The people are already represented by the House of Representatives. Popular election of senators makes them into super-representatives, redundant precisely because they are elected in too similar a way to the representatives. (One hundred years ago, one spurious argument made in favor of the change to popular election of senators was that senators were corrupt and that, somehow, this would be remedied through popular election; this did not work because senators seem to be just as corrupt, if not more so, since their popular election; for one thing, they are more susceptible to pressures from interests outside their states than they were before they were popularly elected.)


There are also many examples of disuse of constitutional protections of the states. Two examples are the Tenth Amendment and Article Five from the body of the Constitution. The Tenth Amendment upholds the sovereignty of the states by affirming that any power that is not assigned to the general government by the Constitution is and should be understood to be retained by the states or the people. This amendment was intended to prevent the general or federal government from taking power away from the states in matters that should properly be taken care of locally. The Supreme Court of the United States has never cited the Tenth Amendment in any case. This disuse has rendered the amendment meaningless and allowed the federal government to take over education, healthcare and many other areas that are not explicitly given over to the national government by the Constitution.


One of the ingenious ideas the Founders put into the Constitution is to have legitimate ways to change the Constitution when experience shows the people of the United States that the Constitution can be improved upon. There are two ways that amendments can be made according to Article Five of the Constitution. One is for two-thirds of Congress to propose amendments, vote them up or down, and, if approved (by Congress because the president has no authority to veto amendments beyond a non-binding endorsement or opposition), have them ratified (finally approved) by three-fourths of the states. 


The other way to make amendments to the Constitution is for two-thirds of the states to propose amendments and submit them to all of the states for ratification by a three-fourths majority of states. This method was explicitly mentioned and promoted in the Federalist Papers as a legitimate way that the states could propose amendments to the Constitution instead of waiting for Congress to propose amendments that might not be in the personal interest of the members of Congress. For example, many Americans have thought for a great many years that there ought to be term limits for congressmen. This, however, is not in the interest of congressmen themselves, so we will probably never see such limits if this amendment is left to the first method. Unfortunately, the method by which the states propose amendments has never been used, although there have been a couple of instances where its use was seriously contemplated in order to address specific issues.



If the power relationship between the state and federal governments is a problem found in the original Constitution (although, as we have seen, it is not the Constitution’s fault that some remedies constitutionally available to the states have not been used), the general problem is that the national government has tended toward what could be called “mission creep” whereby any robust institution or organization will always seek ways to increase its power and authority in ways it was not originally intended or even authorized to do. While the Framers of the Constitution were quite clever in separating the government into three branches, the legislative, executive and judiciary—each of which is supposed to be jealous of its power and of the other branches—it did not take long for the people in each branch to realize that by helping to enhance the general power and authority of another branch—far from diminishing their own power—they would help ALL branches to increase their power in tandem.


Power is not a scarce and finite resource to be divided among the separate branches when it can rather be expanded for all of them. The judiciary, for example, can feel encouraged to expand the power of the legislative or the executive because this expanded power will eventually give the judiciary more power to rule on the proper use of the new powers it has allowed the other branches. I call this ratcheting up the power of the government.

There are, of course, problems with the original Constitution that are widely recognized and agreed upon as problems by both sides of the aisle. The Framers of the Constitution labored over the question of slavery. Their inability to find a solution that did not contain the seeds of divisiveness is a problem that still plagues us to this day. The myth that the words of the Declaration of Independence, “all men are created equal,” were not seen by the Founders as problematic in light of the existence of slavery in America, is simply false; how else do you explain the fact that all of the northern states took steps to end slavery in their jurisdictions during or immediately after the American Revolution? Even South Carolina voted on a measure to end slavery. (It did not pass as similar measures did in the northern states.)


Contrary to the picture of complacent acceptance of slavery by the Framers, they actually tried to limit it as much as possible. The debate over the famous three-fifths of a man clause was contentious and painful at the time to the same degree that it has been subsequently misunderstood. I have often reflected upon how lacking in curiosity I must have been for so long—and how incurious so many people remain—not to wonder how the Framers came up with such an odd fraction as three-fifths. Understanding the reason for this particular fraction turns the prejudice about its origin on its head:


The three-fifths clause appears in Article One of the Constitution under the topic of the election of members of the House of Representatives. In order to have a scientific basis for assigning congressional districts based on population, the Constitution included a census of the entire nation to determine how many people were in each state and how many representatives each state would be entitled to have in Congress. A difficulty arose when considering how this calculation would be made in states where there was slavery versus states where there was no slavery. It was the delegates from the slave states who wanted slaves to be counted as whole persons, so that the slave states could have as many congressmen as possible; it was the free states that would have preferred that slaves not be counted at all. Congressmen from slave states were asking to be allowed to represent people who they would not allow to vote. This was hypocrisy, but the delegates from the free states came to see that it would do no good to point that out. The slave states were so adamant in their position that not to make some compromise would have ended the United States soon after it began. So a horse trade was made. I do not think we know how it went, but one can imagine that it went something like this:

Slave States: We want to count slaves as whole persons for purposes of the census.

Free States: But that isn’t fair. You want to pretend to represent people you won’t allow to vote. While congressmen in free states will have to canvas all the men they represent and fight for every vote, congressmen in slave states will be able to focus on the few men who are eligible to vote while getting considerable power from the numbers of men who are taken for granted because they don’t have any vote. We say your slaves should not be counted at all unless you are willing to give them the vote.

Slave States: That isn’t going to happen, but suppose we count the slaves as whole persons just as we said.

Free States: Seeing as you are so set on counting people who can’t vote, how about, as a compromise, we count each slave as one eighth of a person for purposes of the census. That way, you get some of the power you want but not such an unfair amount.

Slave States: One eighth is too small. How about seven eighths?

Free States: How about one quarter?

Slave States: No, make that three quarters.

Free States: How about one half?

Slave States: How about two thirds?

Free States (or whichever side came up with the final fraction): How about three fifths?

The point is that it was not some gratuitous insult that the slaves were represented as fractions for purposes of the federal census, and, more significantly, it was the slaveholders who were perfectly happy to count slaves as whole persons just so that they could have more power without having to worry about whether these enumerated constituents would vote for them.


*Thomas Jefferson, of course, was not a the Constitutional Convention in 1787. He was serving as Ambassador to France.

Recommended: 
The Federalist Papers, various editions.
"The Great Debate," a series of lectures by Prof. Thomas L. Pangle on the history of the ratification of the United States Constitution, published by Great Courses/ The Teaching Company.