- - Monday, July 18, 2016

ANALYSIS/OPINION:

MADISON‘S HAND: REVISING THE CONSTITUTIONAL CONVENTION

By Mary Sarah Bilder

Harvard University Press, $35, 358 pages

Pious politicians who anoint themselves as “strict constructionists” of the U.S. Constitution are akin to Christian fundamentalists who assert that the King James Version of the Bible was literally dictated by the Lord Almighty to 47 Church of England scholars during the Creator’s spare time between 1604 and 1611. One has to squint very hard to see any truth in divine inspiration for either document.

This thoroughly researched and elegantly written book tells the story of a remarkable Founding Father and the exhaustive notes he set down during the sweltering summer of 1787 when the Continental Congress called a special convention to come up with reforms to the Constitution we already had — the one dismissed today as the Articles of Confederation. Instead of reforms, the 42 special delegates drafted a new structure of government. On Sept. 17, 39 of the exhausted members voted to send it to Congress and, with its approval, to submit it to the 13 states for a ratification vote.

What we know, rather what we should know, about what the authors of our iconic U.S. Constitution thought they were doing is largely determined by confidential notes penned by delegate James Madison sometimes during the sessions, sometimes hours or days later, and sometimes years later.

The original manuscript of Madison’s “Notes on the Constitutional Convention” is huge. A printed version can run to 550 pages. But it is not a verbatim transcript by any means. Author Mary Sarah Bilder, a Boston College legal scholar, rightly notes that most legislatures — the British House of Commons and our own Continental Congresses — not only did not record verbatim debates but also closed the doors to spectators and forbade delegates to report on deliberations to friends, much less to newspapers. While most delegates to the Philadelphia convention kept occasional diaries, and there were leaks galore, Madison’s notes only came to public notoriety years after his own presidency and were not published until well after his death in 1836. In the 50 years between the convention and Madison’s death, he constantly revised those original notes.

It is these revisions and indeed the immediate alteration to the Constitution itself known as the Bill of Rights that is Ms. Bilder’s main point. Like the other 41 delegates, Madison came to the convention with no fixed plan in mind. His note-taking served two purposes at the start. One was to keep track in his own mind of where he stood as the host of critical issues came up for debate, compromise, and finally for adoption. The other purpose was to provide a record for his friend Thomas Jefferson, who was our ambassador to the French as they lurched into their revolution of mob rule and regicide.

The twin fears of creating a national government swayed by mobocracy versus one ruled by an increasingly corrupt elite vexed all of the Founding Fathers. Some of the notions of how to achieve a balance between wholesome democracy and efficient authority were strange, indeed. Benjamin Franklin had returned from his eight years in Paris with revolutionary notions for a three-man presidency and a one-chamber Congress made up of unpaid members who served only one-year terms. Madison’s notes reflect his scorn for the aging Pennsylvanian.

Read as a whole, Madison’s “Notes on the Constitutional Convention” is a much-needed tutorial on just how exhaustive — and exhausting — the detail work of fashioning a new government was. Questions of postal privileges, salaries and custom duties were as time-consuming as the more existential issue of how to treat the huge populations of enslaved individuals in the Southern states when it came to apportioning congressional power.

One of the most riveting passages is Madison’s record of the first exchanges on June 19 and 20 between Madison and Alexander Hamilton on the fundamental question of the distribution of political power that the hitherto sovereign states would hand over to a national authority and what the nature of that authority might look like.

Madison, from the most populous state of Virginia, understandably, saw the states as having a peremptory power while New Yorker Hamilton initially wanted to reduce state governments to mere “little corporations for local purposes.”

Hamilton also raised a second point, how a national government would deal with the conflicting claims of “special interests,” which included both those who helped finance official debt and those who owed taxes to the government. Prophetically, Madison quoted Hamilton as warning about the tension between total democracy and authoritarian rule. He said, “Give all power to the many and they will oppress the few. Give power to the few, they will oppress the many.”

Madison also records that Hamilton’s initial solution to that dilemma was an obvious non-starter. He wanted both a Senate and the presidency to be elected without term limits and to be removable only for misconduct. It was a start of a debate that would last through the rest of the convention and, indeed, one that continues to vex and tantalize us in this season of political discontent and unhappiness.

James Srodes’ latest biography, “Spies in Palestine, Love, Betrayal and the Heroic Life of Sarah Aaronsohn,” will be published in October.

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