Publick Occurrences 2.0

February 25, 2015

Bastard out of Nevis: Lin-Manuel Miranda’s “Hamilton”

Alexander Hamilton, by John Trumbull (after painting by Giuseppe Ceracchi, 1801); National Portrait Gallery, Smithsonian Institution; Gift of Henry Cabot Lodge

Alexander Hamilton, by John Trumbull (after painting by Giuseppe Ceracchi, 1801); National Portrait Gallery, Smithsonian Institution; Gift of Henry Cabot Lodge

“I want the historians to respect this.”  —Lin-Manuel Miranda, according to Ron Chernow

In the lobby of the Public Theater, two statues flanked the doorway—the likenesses of Alexander Hamilton and Aaron Burr stretched out their arms and aimed their dueling pistols at one another, and it was hard not to feel as if I was standing in the middle.  Lin-Manuel Miranda, the son of Puerto Rican immigrants, wrote the musical Hamilton and stars in the title role.  He portrays the first Secretary of the Treasury as a “bastard, orphan, son of a whore and a Scotsman” and an immigrant striver made good; throughout his career, Hamilton is arrogant about his talents but perpetually insecure about his place.  As told by Miranda, Hamilton is both self-made and self-unmade, wry and seductive and yet constantly raging against anyone who might hold him back.

The show is currently the hottest ticket in New York City, with all performances at the Public sold out, and StubHub prices reaching four figures.  It is “inspired by” Ron Chernow’s biography and retains a bit of its Federalist Chic, but Miranda has read more widely, in both primary and secondary sources, about Hamilton’s life and the history surrounding it.  Indeed, the results are almost everything historians could want.  Actors playing Hercules Mulligan, the Marquis de Lafayette, and John Laurens (imagined as Hamilton’s drinking buddies) help embody the events of 1776–1804, with a broad range of music heavily influenced by hip-hop.  We get politics, war, nation-building, scandal, and death, all with energetic choreography.  Along the way, the show manages to explain both the code duello and the voting process prior to the 12th amendment. George Washington doesn’t seem cast in marble, as he does in HBO’s John Adams miniseries.  Instead Christopher Jackson plays him as a vigorous leader who has to work at managing his squabbling aides.  Cabinet debates—over the assumption of state debts or diplomatic relations with Revolutionary France—are imagined, thrillingly, as rap battles between Hamilton and Thomas Jefferson (played with glorious, demented abandon by Daveed Diggs).  Sure, Hamilton gets the last word and comes out on top, but at least we hear Jefferson’s contrary perspective as well.  The Founders were both high-minded and scurrilous, using eighteenth-century phrasing alongside an argot familiar to anyone with Spotify.  Many of the songs are still stuck in my head.

For over a decade now, historians have discussed the effort to humanize the Founders, and Hamilton serves as a worthy example of this trend.  Hamilton is not just a penman and statesman, which might have made for a rather dry show.  Instead we see him court his future wife and later betray her—we even see his courtship of Eliza Schuyler retold a second time from her sister Angelica’s wistful perspective.  Hamilton delights in his eldest son and then loses him (at nineteen) to a duelist’s bullet.  How a new father like Miranda can replay this anguish eight times a week is beyond my capacity to guess.  By the time Hamilton meets Burr and his fate at Weehawken, New Jersey, the character has been hollowed out by grief.

The historian’s craft is on full display here.  In “The Room Where It Happens,” James Madison, Hamilton, and Jefferson hash out the famous 1790 compromise to locate the capital on the Potomac but have the federal government assume state debts.  Yet as Aaron Burr (in his role as sometime narrator) tells us, we don’t actually know what went down, because no one else was in the room.  Later, Eliza Hamilton burns her letters rather than leave for posterity her opinions about Hamilton’s adultery.  She even sings about leaving the narrative.  Books, letters, and printed pamphlets recur as props, and they are constantly in motion: the characters read news of Laurens’s death, Hamilton’s attack on Adams, and his sordid confessions about Maria Reynolds.  Families try to love one another across distances.  As a historian I’m used to flipping through archival materials, so this dynamism was something of a treat.  On the front of the Playbill, the tagline reads, “Who Lives, Who Dies, Who Tells Your Story,” and in a number toward the end, the actors confront the idea that history isn’t static—storytellers might vary, and the differences among them actually matter. Audiences will thrill to Miranda’s interpretation, but they are still offered the idea that different interpretations are possible, and that the historical record leaves gaps for the imagination to fill.  If you’re like David Brooks (who saw the same performance I did), you may fall in love with Hamilton all over again (and is it just me, or does “The Hamilton Experience” remind you of “The Girlfriend Experience”?), but the show leaves room for many other reactions.

Race plays an interesting role in the show.  Ben Brantley found it “appropriate that the ultimate dead white men of American history should be portrayed here by men who are not white.”  In an interview, Leslie Odom, Jr. (who plays Aaron Burr), said, “In the first two minutes of this show, Lin steps forward and introduces himself as Alexander Hamilton, and Chris [Jackson] steps forward and says he’s George Washington, and you never question it again.” And while it’s true that the performances are unquestionably fitting, they also raise interesting questions.  In the show, the only white cast members (as far as I could tell) were either ensemble players (one of whom played the Loyalist minister Samuel Seabury) or Bryan D’Arcy James, who plays King George III to hilarious effect.  (“When push comes to shove / I will kill your friends and family / To remind you of my love.”)  In other words, on stage the whites represent monarchical authority, while the revolutionaries (men and women) are played by people of African, Latino/a, and Asian descent.  This show is, then, about revolutions past and future (and Miranda did acknowledge in the New Yorker that Michael Brown and Eric Garner were on his mind when the cast sang, “Rise up!”).

Some small inaccuracies remain: events are compressed in time and space (no doubt by necessity), and a character describes the outcome of the close election of 1800 as a “landslide.” Aaron Burr’s life both mirrors Hamilton’s life and intersects it.  Odom’s Burr is winning and sympathetic, and he sings some pretty numbers addressed to his daughter Theodosia, but we never meet her, which robs the songs of some of their power.  While Hamilton’s character is fully developed, at times Burr’s story is told more than shown.   As a result, by the time the two lawyers fall out over Dr. Charles Cooper’s letter, I couldn’t quite get a purchase on their relationship as foils for one another.

While Miranda is adapting a well-known slice of history, his interpretation is fresh and inspiring.  The level of originality will satisfy both theater crowds and history crowds.  In other words, the show works—as history, as imagination, and as theater.

On the subway ride home, I saw a group clutching a Playbill from the show and discussing excitedly whether certain events in it were accurate.  I smiled.  It’s a good thing Hamilton is moving to Broadway for a longer run.  More audiences for this show could well mean a broader audience for other good histories, too.


[Cross-posted at The Junto here]


January 11, 2013

The Value of Studying Politics in Context

Several years ago, the student conservative publication on the campus of a friend published a screed against newfangled history, decrying the rise of courses that focused on race, class, and gender, and bemoaning the lack of courses on serious subjects such as politics and economics. The publication singled out for praise a course taught by that friend on American business history. I chuckled when I read the article because the course in question focused heavily on—you guessed it—issues of race, gender, and class in American business. There’s only so much one can learn by reading course titles.

That story came to mind today as I read from a Facebook friend that the National Association of Scholars (and its affiliate group, the Texas Association of scholars), were releasing a report on Texas public universities that claims that the American history taught at the University of Texas at Austin and Texas A&M University contains too much social and cultural history (with “race, class, and gender,” or “RCG” as their stand-ins) and not enough political, economic, or diplomatic history.

Several people, including me, posted the report and discussed it on Twitter yesterday afternoon with a fair bit of derision and snark, pointing out, for instance, that the report flagged as objectionable The Minutemen and Their World, Robert A. Gross’s classic study of Concord in 1775, and Liberty and Power, a book whose subtitle is The Politics of Jacksonian America. Using syllabi, as many have argued, is an imperfect measure of what happens in a classroom; I offered as an example that my students listen to the Gettysburg Address in class rather than reading it at home.

That’s all well and good, and self-satisfying to boot. But for a moment indulge me in taking the report seriously to see whether those of us who practice political history in a way that attends carefully to society and culture can learn anything about how we pitch our work.

First, take a look at the report’s ten recommendations (pp. 47-49 of the report). At the topline, they are completely and utterly unobjectionable (in part because they are so vague):

  1. Review the Curriculum.
  2. If Necessary, Convene an External Review.
  3. Hire Faculty Members with a Broader Range of Research Interests.
  4. Keep Broad Courses Broad.
  5. Identify Essential Reading.
  6. Design Better Courses.
  7. Diversify Graduate Programs.
  8. Evaluate Conformity with Laws.
  9. Publish Better Books.
  10. Depoliticize History.

See? Nothing objectionable, except insofar as faculty around the United States are already doing nearly all of those things. We all worked to improve our courses, to “identify essential reading,” to address broad questions in survey courses, and so on. Nearly all of us try to publish better books, and our departments conduct frequent curricular reviews (my own department is in the midst of one this year). The problem, of course, is that a conservative organization such as NAS sees the outcomes of those efforts as fundamentally different from many academics.

To understand how, I want to talk more about the tenth recommendation. Here’s the full text after the brief nugget:

The root of the problem is that colleges and universities have drifted from their main mission. They and particular programs within them, increasingly think of themselves as responsible for reforming American society and curing it of prejudice and bigotry. When universities and university programs consider it necessary to atone for, and help erase, oppressions of the past; one way in which they do so is by depicting history as primarily a struggle of the downtrodden against rooted injustice. This pedagogical conception may be well-intended, but it is also a limited and partisan one, and history teaching should not allow itself to become imprisoned within a narrow interpretation. A depoliticized history would provide a comprehensive interpretation of American history that does not shortchange students by denying them exposure to intellectual, political, religious, diplomatic, military, and economic historical themes.

The dominance of race, class, and gender themes in history curricula came about through disciplinary mission creep. Historians and professors of United States history should return to their primary task: handing down the American story, as a whole, to future generations.

The last sentence is the crucial one. The conservative impulse, as Jeremi Suri noted, is to teach “a simple and one-sided history of just a few people.” I attended a seminar this summer in which someone argued that you simply needed to “give students the documents” and they would be able to understand their meaning, and another person argued with me that I should be teaching the “enduring meaning” of the Constitution. (My response was that the Constitution hadn’t endured in 1787 when it was written, its drafters were in fact incredibly nervous about whether it would endure, and that the Civil War poked a rather gaping hole in the suggestion that that 1787 Constitution was fine as is.)

Teaching history that way, however, does an enormous disservice to students. As a political historian, I agree that teaching political history is important, and I emphasize it in my own survey course (my analogy to Texas is a state law here requiring instruction in both the Massachusetts and U.S. Constitutions). I believe, as I’ve argued here before, that civic education is an important function of American history courses. Understanding the political history of the United States better, including comprehending just what documents such as the Declaration, the Constitution, and the Emancipation Proclamation meant to various groups, can only help modern political discourse. But I don’t want to pass on a simple story to my students, in no small measure because there is no simple story. In fact, I would argue, college history is not about answers, as NAS wishes, but about asking useful questions. I want, and I think many of my colleagues, to empower students to engage with the fullness of the past, to understand how debates in Philadelphia in 1787, in Congress in January 1865, at Versailles in 1919—choose your example from the standard narrative of political, diplomatic, and economic history—shaped and were shaped by social and cultural forces out of doors.

To address NAS on its own terms, one of its benchmarks for proper reading assignments is the National Archives list of 100 Milestone Documents. Go take a look and figure out how many of those documents one can discuss without any reference to race, class, or gender, NAS’s menacing troika. Maybe the Lend-Lease Act? The Manhattan Project’s notebook? Of course I’m not a twentieth-century specialist so I could be wrong about those. My point is that the political history that NAS and like-minded organizations promote looks desiccated and inadequate without any consideration of the important knowledge we’ve gained and the questions it allows us to ask over the past few decades. For a sample of that, I would just offhand recommend Benjamin Irvin’s book, Clothed in Robes of Sovereignty, which recasts the political symbols that Congress promoted to develop American nationalism through an analysis of gendered language, or class implications. It’s a good example of what I aspire to (still working on the book manuscript…) in terms of integrating new questions about culture into an older narrative about American politics.

A conversation about teaching and practicing political history is useful, but the solution is not to ignore the best contributions of social and cultural history by winding back the clock and pretending that those questions don’t exist and don’t matter. And it’s the responsibility of political historians who see value in that process to engage those interested in old-fashioned politics and convince them that those questions do matter.


For more coverage, see:

“UT, A&M shortchanging students on American history, report says” (Austin Statesman, Jan. 9, 2013)

NAS press release: “Colleges Twist U.S. History”

Recasting History: Are Race, Class, and Gender Dominating American History? (PDF)


October 24, 2012

The “Wisdom” of the Founders

It’s October of a presidential election year, which means the political pundit class is alive with speculation of the likelihood of different results in the popular vote and the Electoral College or – and this one has really gotten people going, thanks to some speculation and number crunching by Five Thirty Eight blogger Nate Silver – if the Electoral College comes out in a 269-269 tie. (Two side points: first, take a look at the first scenario he games out; the scary part is it has the air of plausibility, that is, the electoral map theoretically could happen, even if the odds are extremely low. Second, as others have pointed out, you should know you’re being trolled when you read a sentence that states that the “probability [of a tie] has roughly doubled from a few weeks ago, when the chances had been hovering at about 0.3 percent instead.”)

The op-eds, editorials, blog posts, and tweets that game out these scenarios all operate under the premise that such an outcome would be a “constitutional crisis.” And that’s true to a point, but what I have not seen any discussion of in the mainstream media to this point is that such an Electoral College occurrence, however fluky it might be, would represent a failure not so much of the Constitution as of the political system built up around it. Such an election, in fact, does exactly what the Constitution of 1787 (as modified by the Twelfth Amendment) requires. The winner of the presidential election is the candidate with the most electoral votes; Art. II, § 1 is agnostic on the method by which each state determines its electors, and a popular majority was in no one’s imagination in 1787.

Why don’t commentators or politicians discuss the problem of an Electoral College tie (or a “split decision”) as a Constitutional matter rather than a political one? One answer comes from Sanford Levinson, whom I heard speak for the first time this week when he visited my campus. Levinson, who teaches at Harvard Law School and the University of Texas at Austin School of Law, argued simply that no one is willing to have the conversation. The discussion about the Constitution, he suggested, goes only so far for the two candidates as to express their devotion to the document of the Founders. (At this point Levinson expressed nostalgic longing for the campaign of 1912, which featured constitutional reformers Woodrow Wilson and Theodore Roosevelt as well as the future Chief Justice William Howard Taft.)

Levinson is most famous in Constitutional studies circles for his advocacy of a new constitutional convention to remedy the problems he sees in the current document—and the greatest failure of 1787, he suggests, is the empty vessel of Article V, which provides for the Constitution’s amendment with absolutely no guidance as to how it might happen. He argued in his talk on Monday that the Constitution would “render the election (nearly) irrelevant,” a provocative claim that little would occur in the sphere of domestic policy no matter which candidate wins because of the likely split in Congress. In foreign affairs, he argued, the difference matters, but in that case he critiques Presidents (dating back to Truman) for ignoring Congress in matters of war, peace, and national security.

The discussion was intriguing, and I’m glad that a number of students got to see history in action, as Levinson touched on a number of areas that we had covered in the U.S. survey within the past week, not least the vagueness of Article II’s grant of executive power. Within the context of the talk, I asked Levinson how he proposed to get a constitutional convention enacted, given that it required the assistance of the very political structures that fail in other regards now and that the very vagueness that he critiqued was a feature of the Constitution that worked well for either party at various times. His answer was not particularly satisfying – either we have to go over the cliff and have a true crisis moment (which is hopefully unlikely) or people must decide they’re just fed up. I’m not sure I’d go as far as Levinson, though I do think the conversation would be helpful, and that historians can and should take part in it to explain the processes by which the Constitution came about in 1787 and those that have shaped the document since.

What I did not get to ask about, and which may take a few more blog posts to fully flesh out, is the importance of what Levinson alluded to at the beginning of his talk: reverence for the Constitution. Setting aside how to fix any problems with the Constitution, any conversation along those lines must start from the premise that the Constitution is changeable, and I’m not sure that’s an easy starting point for many people given the enduring popularity of originalism and “Founders’ Chic.” It’s difficult, in other words, to have a true conversation about the Electoral College that elides the fact that a 269-269 tie leading to the House electing Mitt Romney as President and the Senate re-electing Joe Biden as Vice President is precisely the system the Founders bestowed on the nation.


January 27, 2012

Michael Hattem, “Instructions vs. Pledges”

Filed under: Common-Place,Constitutional history,Guest posts,Revolution — Jeffrey L. Pasley @ 6:13 pm

While recently reading about the proliferation of right-wing interest group pledges, I was reminded of an article by Ray Raphael from the October 2008 edition of Common-Place entitled, “Instructions.” In that piece, he described how pre-revolutionary Massachusetts townships gave specific instructions to the delegates they sent to the Assembly, General Court, and later revolutionary Conventions. Though I generally am not very sympathetic to “neo-progressive” interpretations of early America, I nevertheless found myself agreeing with Raphael’s characterization of colonial instructions as a strong example of “popular government.” At the same time, I was increasingly frustrated by the Congressional obstruction perpetuated by the right-wing pledges.

I began to wonder: “Are those right-wing pledge requests fundamentally the same as the townships’ instructions?” That is, are the pledges a similarly popular, democratic exercise? If indeed they were, it seemed my agreement with Raphael was effectively forcing me into a position from which I could not criticize the right-wing use of pledges without being a blatant hypocrite. After all, if there really was no fundamental difference between the instructions and the pledges, I could hardly think the former praiseworthy and the latter deserving of condemnation without being intellectually disingenuous.

Following the rise of the Tea Party in 2009, right-wing interest groups have increasingly sought to bind candidates to their agenda through the signing of pledges. The most well known pledge is Grover Norquist and Americans for Tax Reform’s, “Taxpayer Protection Pledge,” in which candidates and politicians promise not to vote for “any” tax increase.  Other interest groups saw how successful the tactic has been for Norquist and his lobby and over the last twelve months have begun doing the same thing. There is the “Marriage Vow” from an Iowa group called The Family Leader. Its pledge begins, “Faithful monogamy is at the very heart of a designed and purposeful order—as conveyed by Jewish and Christian Scripture, by Classical Philosophers, by Natural Law, and by the American Founders….” There is also the Cut, Cap, and Balance Coalition and The Susan B. Anthony List’s 2012 Pro-life Presidential Leadership Pledge, which “asks declared presidential candidates to commit to key pro-life goals if elected to the presidency in 2012.”

Both left-leaning and mainstream media outlets have voiced criticisms of these pledges. Alex Altman, in Time Magazine, called them “gimmicks.” He argued that the effect of signing a pledge is “the equivalent of voluntarily slipping on a straitjacket” because “it denies politicians the flexibility needed to meet unforeseen challenges.” Similarly, an editorial in The New York Times, entitled, “Signing Away the Right to Govern,” declared “each pledge [Republicans] sign undermines the basic principle of democratic government built on compromise and negotiation.” Indeed, even some Republicans have begun to quietly show some reservations.

A subsequent reading complicated matters further by suggesting a possible eighteenth-century parallel. In Eric Nelson’s recent William and Mary Quarterly article, “Patriot Royalism: The Stuart Monarchy in American Political Thought, 1769-1775,” the author argues that the patriots’ assertion that the colonies fell under the jurisdiction of the Crown rather than the Parliament was actually a shift to a far-right Tory position concurrent with the previously hated Stuarts’ colonial policy of the previous century. He asserts that the circumstances and the failures of their own previous ideological argument forced Americans into adopting a position completely alien to their own longstanding political culture. In the process, he creates a strange, new ideological arc for colonists during the imperial crisis from Whig to radical Tory to republican.

With that article in mind, I re-read a quote in Raphael’s piece from Thomas Hutchinson, the deeply despised royal governor of Massachusetts and arch-loyalist, who, in response to the townships’ practice of instructing delegates, said:

“To hold each representative to vote according to the opinion of his town . . . contradicts the very idea of a parliament the members whereof are supposed to debate and argue in order to convince and be convinced.”
When I compared that quote to the criticisms above and thought about the ideological dynamic of Nelson’s article, I began to wonder whether a similar dynamic was occurring regarding criticism of the pledges. Was my desire to criticize the pledges forcing me into temporarily adopting a far-right position far like the colonists’ critique of the sovereignty of parliament?

On a purely tactical level, there seem to be parallelisms between the colonial instructions and republican pledges. Yet, their historical contexts vary so greatly that any sort of “fundamental” comparison is highly problematic. Following the upheavals of earlier imperial encroachments, the Coercive Acts of 1774, in part, ended popular election of the Executive Council and limited local town meetings to one per year. In such a revolutionary context, instructions became a mode of reasserting the local political role colonists had exercised for generations and translating it to the larger arenas of provincial and imperial politics. Despite the persecution complex and conspiratorial mode of thought that has come to define the far-right of the early twenty-first century, they do not find themselves in anything remotely like a revolutionary context. Despite the Tea Party rhetoric, their traditional role in government is not under any threat, though their influence may be.

In addition to the historical contexts, the motives of colonists and contemporary right-wing lobbies are equally different. Rather than defending their inherited political culture, right-wing interest groups, along with their strong anti-government message, are attempting to paralyze the legislative process in the hopes of undermining government working for others.

I’m interested to know how the readers of this blog would address these two questions. Are colonial instructions and right-wing pledges fundamentally similar democratic processes? In forming that judgment, should one give priority to the tactic itself or to the motivations behind the tactic? Finally, if there are fundamental similarities, are those who criticize it adopting a traditionally far-right position in order to do so? If so, is that just crass opportunism or is it refreshing, in our current political culture, to see commitment to larger goals outweigh commitment to a narrow ideology?

Michael Hattem is currently a graduate student at Yale University. He received his BA in History from the City University of New York. Hattem focuses on eighteenth-century American political culture, intellectual history, and print culture, and he is also interested in the history of the book and the Enlightenment in America. 


January 27, 2011

Founding Socialists?

Filed under: C-P Politics Issue 2008,Constitutional history,Founders,Government — Jeffrey L. Pasley @ 8:00 am

This post will not live up to its title.

This space has been set to “sporadic” whilst I work out some issues with my nonline writing, but here is something that came almost directly across our very own transom.  The invaluable John Fea alerted us to a minor controversy over Our Founders’ thoughts on government-run healthcare that raged last week – those guys thought of everything. It flared up first at, got mentioned at Media Matters and the Washington Post site, and was eventually linked back, shockingly, to the Common-Place Politics issue that Ed Gray and I put together in late 2008. Specifically, Greg Sargent of the WaPo cited Gautham Rao’s essay on the early republic’s marine hospitals, a publicly funded healthcare system for merchant sailors, paid for through a withholding tax on sailors’ wages.  Not a household word, the marine hospitals, but we can always hope.

Probably the most notable aspect of this issue as far the Founders are concerned is that big names said little or nothing about it (at least as far I know without digging all the way through Gautham’s bibliography). Though public anything on Our Founders’ watch is a moral impossibility as currently popular views would have it, the marine hospitals were not even controversial to the actually existing Founders. The merchant marine was a national resource that needed to be kept supplied with workers, so the Founder-managed government did something that needed to be done: make a low-paying, dangerous but necessary occupation a bit less frightening. As Greg Sargent and the Forbes blogger, Rick Ungar, point out, the marine hospital system was created under John Adams by the same Federalist Congress who brought you the Alien and Sedition Acts, but it also enjoyed the support of Adams’s successor, Thomas Jefferson.  More than supported, in fact: Rao shows that the marine hospitals moved west and south with the frontier, eagerly requested even by good Jeffersonians and future Rand Paul constituents of Paducah, Kentucky.

Admittedly, I myself do not think it should matter that much what the statesmen of two+ centuries ago would think about issues they never had to confront.  The Founders lived in a world where massive intentional bleeding was an advanced medical treatment and basic, ubiquitous modern economic institutions such as corporations, banks and insurance were still rare and controversial in their very existence. If Michele Bachmann could go back and ask Jefferson or Adams what they think about “Obamacare,” assuming they did not flee into the woods at the sight of her, their most likely response would be, “Why are you asking us?”

Still, it was nice to see that the C-P Politics issue was of use to somebody. That was not so clear at the time.


August 11, 2009

The Constitution as Holy Text — NOT

Filed under: Conservatives,Constitutional history,Founders,Historians — Jeffrey L. Pasley @ 12:28 pm

I hardly get to read the now-venerable H-Net email lists any more, but this morning I did catch a good post from H-LAW and H-SHEAR patiently explaining to the lawyers and right-wingers who swarm those lists on certain topics that the Constitution should not be read the way fundamentalist Christians read the Bible, as an “inerrant” text every word of which is divinely inspired. The author of the following is constitutional historian R.B. Bernstein, and he was responding to a post asking somewhat bitterly whether the last five words in Article I, Section 6, Clause 2 of the Constitution  “are anything but a complete nullity,” as though it was news that there was some not eternally-applicable language in there:

I also think that the question, as it stands with its note of suppressed dismay and outrage at language that might be a nullity, targets a constitutional straw-man, a general assumption about the Constitution’s text that we ought to discard once and for all — that the text is not only authoritative but somehow transcendantly so, clear and dispositive far beyond the powers of mortal men.

The framers of the Constitution were human beings, working under very difficult conditions that sometimes meant that they did not write — or “frame” — with the focused, unwavering attention to clarity and guidance for posterity that posterity has too often attributed to them.  One example, memorably elucidated by Professor Michael Stokes Paulsen, now distinguished university professor at the University of St. Thomas School of Law in Minneapolis, is the arrangement for who would preside in the case of a Senate impeachment trial of the Vice President.  The constitutional text, read with care, indicates only one possible answer: the Vice President.  The explanation is that the framers added the Vice Presidency to the Constitution at a very late stage of the game, and they may have meant to modify the language governing presiding officers in Senate impeachment trials to have the Chief Justice preside over the impeachment trial of a President or a Vice President, but they didn’t do a thorough enough mark-up.

Further, the reverence for the text of the Constitution that suffuses today’s constitutional and legal culture may not have been present at its creation, and for very good reason.  The framers and their contemporaries lived in an era of rapid constitutional change, in which they all lived through three or even four forms of American constitutional governance (British empire to 1775 or 1776, Continental Congress from 1775-1776 to 1781, Articles of Confederation from 1781 to 1789, and Constitution from 1789 on); they also each lived through at least two and sometimes three different versions of state constitutional arrangements — charter or other colonial organization to 1775-1776, provision or first constitution in 1776, with at least one and sometimes two later constitutions, depending on the state. (The only exception is Rhode Island, which marked up its colonial charter to remove references to the British Crown and then did not do anything to revise or replace that reworked charter until the Dorr Rebellion in the late 1830s and early 1840s.) When Jefferson referred to the Articles of Confederation in late 1787 as a venerable fabric, he was not writing with the sarcasm that some later scholars have attributed to him. Given that rapid succession of constitutional frameworks on both state and national levels, it’s unlikely at best that the framers of the Constitution or their contemporaries thought that the Constitution proposed in 1787, ratified in 1788, and put into effect in 1789 would last more than a generation.

It may be true, as James Madison argued in an essay for the NATIONAL GAZETTE on 19 January 1792, that “every word [of the Constitution] decides a question between power and liberty,” but that is a description of the Constitution’s purposes and functions, not of its consistent literary excellence, and we would do well to recognize this fact.

Not my thoughts exactly — much more judicious — but perhaps this is the sort of cool reason that ahistorical abusers of the Constitution and the Founders might be able to heed? Probably not, but they should.

Now playing: Los Campesinos! – Don’t Tell Me To Do The Math(s)
via FoxyTunes


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