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Intro: "In recent decades, the American Right has sought to rewrite the founding narrative of the United States through selective 'scholarship,' by snatching a few quotes out of context and then relying on a vast propaganda machine (and much ignorance about U.S. history) to turn the Constitution inside out."

Portrait of James Madison, 'father of the Constitution' and fourth president of the United States. (photo: Consortium News)
Portrait of James Madison, 'father of the Constitution' and fourth president of the United States. (photo: Consortium News)



The Right's Inside-Out Constitution

By Robert Parry, Consortium News

14 February 12

 

n recent decades, the American Right has sought to rewrite the founding narrative of the United States through selective "scholarship," by snatching a few quotes out of context and then relying on a vast propaganda machine (and much ignorance about U.S. history) to turn the Constitution inside out.

According to the Right's revisionist narrative, the framers of the Constitution met in Philadelphia for the purpose of tightly restricting the powers of the national government and broadly empowering the states - when the actual intent of the Constitutional Convention was nearly the opposite.

The Right has now popularized this bogus version of history so much that it has become a rallying cry for the Tea Party and other poorly informed Americans, including that self-proclaimed historian Newt Gingrich, who declared recently, "I believe in the Constitution; I believe in the Federalist Papers. Obama believes in Saul Alinsky and secular European socialist bureaucracy."

Yet, perhaps oddest of all, the Right has taken James Madison, one of the Constitutional Convention's strongest advocates for a powerful central government, and made him the new godfather for the state supremacy movement.

While it's true that Madison - like many other Founders - veered during his long career through conflicting positions regarding the precise powers of the central government, he went to Philadelphia in 1787 along with fellow Virginian George Washington and other national leaders with the intent of creating a strong and vibrant central government to replace the weak version under the Articles of Confederation.

The Articles had made the 13 original states supreme and independent, while bestowing few powers on the central government. Washington was among the fiercest critics of this system of state "sovereignty" because it had allowed states to renege on promises of money for the Continental Army, which left General Washington's men without pay, food and ammunition.

"Thirteen sovereignties," Washington had written, "pulling against each other, and all tugging at the federal head, will soon bring ruin to the whole." [See Catherine Drinker Bowen's Miracle at Philadelphia.]

Madison was of a similar mind. In 1781, as a member of the Congress under the Articles of Confederation, he introduced a radical amendment that "would have required states that ignored their federal responsibilities or refused to be bound by decisions of Congress to be compelled to do so by use of the army or navy or by the seizure of exported goods," noted Chris DeRose in Founding Rivals. However, Madison's plan - opposed by the powerful states - went nowhere.

Similarly, Madison lamented how the variety of currencies issued by the 13 states and the lack of uniform standards on weights and measures impeded trade. Again, he looked futilely toward finding federal solutions to these state problems.

Changing the Government

So, after a decade of growing frustration and mounting crises under the Articles, a convention was called in Philadelphia in 1787 to modify them. Washington and Madison, however, had other ideas, pressing instead to scrap the Articles altogether in favor of a new constitutional structure that would invest broad powers in the central government and remove language on state sovereignty and independence.

As Washington presided over the convention, it fell to Madison to supply the framework for the new system. Madison's plan, which was presented by the Virginia delegation, called for a strong central government with clear dominance over the states. Madison's original plan even contained a provision to give Congress veto power over state decisions.

The broader point of the Constitutional Convention was that the United States must act as one nation, not a squabbling collection of states and regions. James Wilson from Pennsylvania reminded the delegates that "we must remember the language with which we began the Revolution: ‘Virginia is no more, Massachusetts is no more, Pennsylvania is no more. We are now one nation of brethren, we must bury all local interests and distinctions.'"

However, as the contentious convention wore on over the summer, Madison retreated from some of his more extreme positions. "Madison wanted the federal assembly to have a veto over the state assemblies," wrote David Wootton, author of The Essential Federalist and Anti-Federalist Papers. "Vetoes, however, are bad politics, and again and again they had to be abandoned in the course of turning drafts into agreed texts."

But Madison still pushed through a governing structure that bestowed important powers on the central government - including the ability to tax, to print money, to control foreign policy, to conduct wars and to regulate interstate commerce.

Madison also came up with a plan for approving the Constitution that bypassed the state assemblies and instead called for special state conventions for ratification. He knew that if the Constitution went before the existing assemblies - with the obvious diminution of their powers - it wouldn't stand a chance to win the approval of the necessary nine states.

Still, the Constitution prompted fierce opposition from many prominent Americans who recognized how severely it reduced the powers of the states in favor of the central government. These Anti-Federalists decried the broad and sometimes vague language that shifted the country away from a confederation of independent states to a system that made the central government supreme.

What Madison and his cohorts had achieved in Philadelphia was not lost on these Anti-Federalists, including the Pennsylvania delegates who had been on the losing side and who then explained their opposition in a lengthy report which declared: "We dissent … because the powers vested in Congress by this constitution, must necessarily annihilate and absorb the legislative, executive, and judicial powers of the several states, and produce from their ruins one consolidated government. …

"The new government will not be a confederacy of states, as it ought, but one consolidated government, founded upon the destruction of the several governments of the states. … The powers of Congress under the new constitution, are complete and unlimited over the purse and the sword, and are perfectly independent of, and supreme over, the state governments; whose intervention in these great points is entirely destroyed. …

"The new constitution, consistently with the plan of consolidation, contains no reservation of the rights and privileges of the state governments, which was made in the confederation of the year 1778, by article the 2nd, viz. ‘That each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this confederation expressly delegated to the United States in Congress assembled.'"

The Pennsylvania dissenters noted that the state sovereignty language from the Articles of Confederation was stripped out of the Constitution and that national sovereignty was implicitly transferred to "We the People of the United States" in the Preamble. They pointed out that the Constitution's Article Six made federal statutes and treaties "the supreme law of the land."

"The legislative power vested in Congress … is so unlimited in its nature; may be so comprehensive and boundless [in] its exercise, that this alone would be amply sufficient to annihilate the state governments, and swallow them up in the grand vortex of general empire," the Pennsylvania dissenters declared.

Extreme Fears

Some Anti-Federalists charged that the President of the United States would have the powers of a monarch and that the states would be reduced to little more than vassals of the central authority. Others mocked the trust that Madison placed in his schemes of "checks and balances," that is, having the different branches of government block others from committing any grave abridgement of liberties.

Famed Revolutionary War orator Patrick Henry, one of the leading Anti-Federalists, denounced Madison's scheme of countervailing powers as "specious imaginary balances, your rope-dancing, chain-rattling, ridiculous ideal checks and contrivances." Henry and other opponents favored scrapping the new Constitution and calling a second convention.

Though the Anti-Federalists were surely hyperbolic in some of their rhetoric, they were substantially correct in identifying the Constitution as a bold assertion of federal power and a major transformation from the previous system of state independence.

For his part, Madison was not only the chief architect of this shift from state to national power, he even favored a clearer preference for federal dominance with his veto idea over actions by state assemblies, the proposal that died in the compromising at Philadelphia.

However, Madison and other Federalists faced a more immediate political challenge in late 1787 and early 1788 - securing ratification of the new Constitution in the face of potent opposition from the Anti-Federalists. Madison was particularly concerned that a second convention would eliminate one of his pet features in the Constitution, granting the federal government control over interstate commerce.

Despite Madison's ploy of requiring special ratifying conventions in the various states, the Anti-Federalists appeared to hold the upper hand in key states, such as Virginia and New York. So, to defend the new Constitution, Madison joined with Alexander Hamilton and John Jay in anonymously composing the Federalist Papers, a series of essays which not only sought to explain what the Constitution would do but - perhaps more importantly - to rebut the accusations of the Anti-Federalists.

Indeed, the Federalist Papers are best understood not as the defining explanation of the framers' intent - since the actual words of the Constitution (contrasted with the Articles of Confederation) and the debates in Philadelphia speak best to that - but as an attempt to tamp down the political fury directed at the proposed new system.

Downplaying the Changes

Thus, when the Anti-Federalists thundered about the broad new powers granted the central government, Madison and his co-authors countered by playing down how radical the new system was and insisting that the changes were more tinkering with the old system than the total overhaul that they appeared to be.

That is the context which today's Right misses when it cites Madison's comments in Federalist Paper No. 45, entitled "The Alleged Danger From the Powers of the Union to the State Governments Considered," in which Madison, using the pseudonym Publius, sought to minimize what the Constitution would do. He wrote:

"If the new Constitution be examined with accuracy, it will be found that the change which it proposes consists much less in the addition of NEW POWERS to the Union, than in the invigoration of its ORIGINAL POWERS.

"The regulation of commerce, it is true, is a new power; but that seems to be an addition which few oppose, and from which no apprehensions are entertained. The powers relating to war and peace, armies and fleets, treaties and finance, with the other more considerable powers, are all vested in the existing Congress by the Articles of Confederation. The proposed change does not enlarge these powers; it only substitutes a more effectual mode of administering them."

Today's Right trumpets this essay and especially Madison's summation - that "the powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite" - but the Right ignores what Madison was trying to accomplish with his essay. He was trying to defuse the opposition.

After all, if Madison really thought the Articles only needed some modest reform, why would he have insisted on throwing them out altogether along with their language about state "sovereignty" and "independence"?

Nor was it entirely accurate for Madison to suggest that replacing the federal government's toothless powers in the Articles with powers having real teeth in the Constitution was trivial. Under the Constitution, for instance, the printing of money became the exclusive purview of the federal government, not a minor change.

Madison also was a touch disingenuous when he dismissed the importance of the Commerce Clause, which gave the central government control over interstate commerce. Madison understood how important that federal authority was - and he was determined to protect it. (Indeed, in modern times, the Commerce Clause has become perhaps the most controversial feature of the Constitution, serving as the foundation for federal activism ranging from Franklin Roosevelt's New Deal to Barack Obama's health-care reform.)

Madison, the Builder

To cite Madison as an opponent of an activist federal government, the Right must also ignore Federalist Paper No. 14 in which Madison envisioned major construction projects under the powers granted by the Commerce Clause.

"[T]he union will be daily facilitated by new improvements," Madison wrote. "Roads will everywhere be shortened, and kept in better order; accommodations for travelers will be multiplied and meliorated; an interior navigation on our eastern side will be opened throughout, or nearly throughout the whole extent of the Thirteen States.

"The communication between the western and Atlantic districts, and between different parts of each, will be rendered more and more easy by those numerous canals with which the beneficence of nature has intersected our country, and which art finds it so little difficult to connect and complete."

What Madison is demonstrating in that essay is a core reality about the Founders - that, by and large, they were practical men seeking to build a strong and unified nation.

Though the Right today plays games with notions of "originalism" and "strict construction" - pretending that the Founders wanted to lock the United States into a world of the late Eighteenth Century - the true "originalist" intent of the Constitution's framers was a forward-looking pragmatism.

They were concerned about addressing the many challenges of a sprawling nation in a world with many external and internal dangers, both for themselves and their posterity.

The Articles of Confederation - with their emphasis on the states' powers - weren't working, so Madison and the Constitutional Convention jettisoned that structure in favor of a system with a strong and energetic central government with the authority to build the young nation. They also made the new system flexible so it could respond to future, unanticipated problems as well.

In exalting this pragmatic approach, Hamilton mocked the Anti-Federalists who propounded fanciful notions of how the Constitution would lead the federal government to oppress the people. He wrote in Federalist Paper No. 31:

"The moment we launch into conjectures about the usurpations of the federal Government, we get into an unfathomable abyss, and fairly put ourselves out of the reach of all reasoning. Imagination may range at pleasure until it gets bewildered amid the labyrinths of an enchanted castle, and knows not on which side to turn to extricate itself from the perplexities into which it has so rashly adventured.

"Whatever may be the limits or modifications of the powers of the Union, it is easy to imagine an endless train of possible dangers; and by indulging an excess of jealousy and timidity, we may bring ourselves to a state of absolute skepticism and irresolution."

Hamilton's comments could as readily be applied to today's Tea Party members who somehow see in federal regulation of the health-insurance industry or of investment banks nefarious assaults on the liberties of Americans. As the Tea Partiers dress up in Revolutionary War costumes, however, they are more representing the overheated alarms of the Anti-Federalists than the careful planning of the Constitution's framers.

Yet, one cannot ignore that the Anti-Federalists served an important function in creating the framework that emerged from those formative years. To win over skeptics, Madison and other Federalists agreed to have the first Congress adopt a Bill of Rights as the first 10 amendments to the Constitution.

Still, after months of argument and that promise, the Constitution barely survived. It narrowly eked through to passage in some key states, such as Massachusetts (187 to 168), New York (30 to 27) and Virginia (89 to 79). After getting elected to the new Congress, Madison then lived up to his word in getting the Bill of Rights enacted and sent to the states for ratification.

Overstating the Tenth Amendment

Today's Libertarian and Tea Party movements - in claiming the Founders were big opponents of a strong central government and favored states' rights - make much of the Tenth Amendment, which asserts that "the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

But the Right's historical revisionists again miss the key point here. The Constitution already had granted broad powers to the federal government - including regulation of national commerce - so the states were left largely with powers over local matters.

To further appreciate how modest the Tenth Amendment concession was, you must compare its wording with Article II of the Confederation, which is what it replaced. Article II stated that "each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated."

In other words, the power relationship was flipped. Instead of the states being firmly in control, the new central government would now set the supreme laws of the land with state "sovereignty" largely confined to local matters. Arguably, the most important American leader effecting this monumental change was James Madison.

In later years, Madison - like other framers of the Constitution - switched sides in various debates over the practical limits of federal power. For instance, Madison joined with Thomas Jefferson in opposing Hamilton's national bank, but then as Jefferson's secretary of state, Madison applied an expansive view of national authority in negotiating the Louisiana Purchase from France. Madison also shifted regarding the value of the national bank after his frustrating experiences as president during the War of 1812.

The struggles between the Federalists and the Anti-Federalists also didn't end with those early disputes over how the new government should function. The battle lines formed again when it became clear to the agrarian South that its economic model, based on slavery, was losing ground to the growing industrial power of the North and the influence of the Emancipation movement.

In the early 1830s, Southern politicians led the "nullification" challenge to the federal government, asserting that states had the right to nullify federal laws, such as a tariff on manufactured goods. But they were beaten back by President Andrew Jackson who threatened to deploy troops to South Carolina to enforce the federal supremacy established by the Constitution.

In December 1832, Jackson denounced the "nullifiers" and declared "the power to annul a law of the United States, assumed by one State, incompatible with the existence of the Union, contradicted expressly by the letter of the Constitution, unauthorized by its spirit, inconsistent with every principle on which it was founded, and destructive of the great object for which it was formed."

Jackson also rejected as "treason" the notion that states could secede if they wished, noting that the Constitution "forms a government not a league," a reference to a line in the Articles of Confederation that had termed the fledgling United States "a firm league of friendship" among the states, not a national government.

Jackson's nullification crisis was resolved nonviolently, but a few decades later, the South's continued resistance to the constitutional preeminence of the federal government led to secession and the formation of the Confederacy. It took the Union's victory in the Civil War to firmly settle the issue of the sovereignty of the national Republic over the independence of the states.

However, the defeated South still balked at the principle of equal rights for blacks and invoked "states' rights" to defend segregation during the Jim Crow era. White Southerners amassed enough political clout, especially within the Democratic Party, to fend off civil rights for blacks.

Ending Segregation

The battle over states' rights was joined again in the 1950s when the federal government finally committed itself to enforcing the principle of "equal protection under the law" as prescribed by the Fourteenth Amendment. Many white Southerners were furious that their system of segregation was being dismantled by federal authority.

Southern rightists and libertarians insisted that federal laws prohibiting denial of voting rights for blacks and outlawing segregation in public accommodations were unconstitutional, citing the Tenth Amendment. But federal courts ruled that Congress was within its rights in banning such discrimination within the states.

The anger of Southern whites was reflected in the prevalence of the Confederate battle flag on pickup trucks and in store windows. Gradually, however, the American Right retreated from outright support of racial segregation and muffled the rhetorical threats of secession (although the idea still surfaces once in a while as it did in comments last year by Texas Gov. Rick Perry).

Instead, the Right has sought to impose a reinterpretation of the Constitution by using its increasingly powerful media tools to revise the history of the United States and pretend that Madison and other Founders designed the Constitution as a document to establish the authority of the states to defy the federal government.

This revisionist view is now at the heart of the Tea Party movement and is reflected in comments by Republican presidential hopefuls, such as the insistence of Rep. Ron Paul of Texas that much of what the federal government has done domestically in recent decades has been unconstitutional. It also apparently was what Gingrich was driving at with his recent comment about his belief in the Constitution and the Federalist Papers.

But the Right leaves out of this narrative the key fact of why the Constitution was drafted in the first place: to get rid of the Articles of Confederation with that language about sovereign and independent states in a non-binding "firm league of friendship."

It simply doesn't fit the Right's narrative that the Constitution represented the nation's single greatest consolidation of federal power - nor that the key Founders, including James Madison, saw this new constitutional authority as a practical way to build a stronger nation, then and for the future.

Robert Parry broke many of the Iran-Contra stories in the 1980s for the Associated Press and Newsweek. His latest book, Neck Deep: The Disastrous Presidency of George W. Bush, was written with two of his sons, Sam and Nat, and can be ordered at neckdeepbook.com. His two previous books, Secrecy & Privilege: The Rise of the Bush Dynasty from Watergate to Iraq and Lost History: Contras, Cocaine, the Press & ‘Project Truth' are also available there.

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+35 # humanmancalvin 2012-02-14 10:17
The right (far-right is just plain redundant) has co-opted the constitution, the bible, Jesus the man, and all moral ground in their push to alter this country in their image. And their image is a frightful reflection of hate and suppression of the average citizen. Be afraid, be very afraid.
 
 
+20 # BradFromSalem 2012-02-14 12:00
It is almost a natural tendency for people to lean to the Right. Witness the countless emails we all get that remind us what a wonderful world it was when we were kids. The Right wing are Conservatives and are afraid of change. So when something is wrong, they tend to believe that whatever has changed is the cause of all the horror in the world today.

So to take advantage of this human tendency, the Right has constructed various myths over the years. The myths have always had one target, the Left. The root reason, in my opinion is that the Left is nearly (99%?) always correct. This explanation of the that the Right gives of the intent of the Founders is naturally another myth. Truth is always trumped by making sure the myth is believed.

And the purpose of the myth is to convince people that the world we lived in as children was so wonderful, that if we only remade our world back to that glorious past, all will be well again.

In reality it is merely a tool to manipulate people and obtain unlimited political and economic power. The result will be a world far worse than it was when we were children and also far worse than it is today.

At best, it will be equivalent to the Dark Ages. War, disease, hunger, and feudalistic servitude.
 
 
+2 # Glen 2012-02-14 14:50
Interesting that you wrote this, Liberal. I was having the very same conversation this morning, or close, anyway. The perpetuation of myths works much better than those sending those maudlin e mails realize.

We were well on our way to the world you describe.
 
 
+6 # LeeBlack 2012-02-14 13:49
It seems that if 'States Power' proponents had won we'd have a country where the States were the equivalent of Germany, Poland, Greece, etc. before the European Union. And the frailties that exist in the current European Union would have been our government 200 years ago.
 
 
+4 # Pondering and Pandering 2012-02-14 15:16
The fundamental notion that the individual States are sovereign powers over the Federal or national government is expressly denied in the Supremacy Clause in Aritcle VI Section 2 of the United States Constitution. This express delegation of authority making the Constitution and the national government created as the Supreme Law of the land contradicts all of the state's rights Tenth Amendment buzz. Abraham Lincoln researched and argued most effectively that the Continental Congress of 1774 drafted a resolution on the formation of State governments out of the old thirteen colonial governments in his Cooper Union speech of February 1860. I commend that to all. He resarched this for months in 1859 with the Illinois State Law Library in Springfield.

Then there are the hundreds of thousands of men and a few women, who gave their very lives between 1861-65 to make clear that the Federal government be upheld versus State governments who wish to deny Federal authority or leave the Union of the States under the Confederation (really a Federal form of government).

What worries me is if the current Roberts Supreme Court buys into this garbage. I support the Bill of Rights and am a proud member of the ACLU. But it is not a license to deny the authority of a Union of the states under the Constitution that makes the national government supreme.
 
 
+2 # reiverpacific 2012-02-14 19:25
Good bit of in-depth history.
I wasn't aware of how close the vote on the constitution was and have to wonder how many of the as-yet unformed or unincorporated states that form the present lower 48 states would have blocked or try to scupper this constitution.
I'm especially attracted to the "Builder" section of the text " accommodations for travelers will be multiplied and meliorated" and the following paragraph including ""The communication between the western and Atlantic districts, and between different parts of each, will be rendered more and more easy by those numerous canals with which the beneficence of nature has intersected our country---" which demonstrated his grasp of the size and nature of what was required to physically unify each "District", which the current Right and the reactionary Bible-belt states most especially the likes of Texas and Arizona have done their best to fragment, including threats to secede from already fragmented Union, presumably to found a new Third-World medievalist nation where war-lords rule, all sense of organization and responsibility including any measure of regulation and oversight is forgotten and even criminalized and slavery is reinstated.
I find this article most instructive, as a resident "furriner" who is always fascinated by the formative and developmental years of this great experiment in freedom from Monarchy and Imperialism, now in danger again from the forces of reaction.
 
 
+2 # tclose 2012-02-14 20:14
An excellent overview of the tortuous route taken to come up with this remarkable document, the Constitution. And an excellent analysis and refutation of the specious argument made by the right. Thank you Mr. Parry.
 
 
-3 # BobbyLip 2012-02-14 23:54
The US under the Articles of Confederation sounds a lot like the so-called European Union. And look how well they're doing. Is it Obama who wants to turn us into Europe or the idiot Republicans?
 
 
0 # tomo 2012-02-15 01:31
Parry speaks of "shifts" in Madison's thinking. I don't know if it should be counted as a shift, but after working with Hamilton and Jay on behalf of constituting a strong federal government, Madison not only accepted the demand of his mentor Jefferson that a Bill of Rights stating clearly marked limitations on the exercise of federal power be added, but he was probably the principle organizer in the first Congress in the crafting and adoption of that document. Later, when Federalist John Adams launched an attack on free speech, Madison with marvelous vigor responded by penning the Virginia Resolution in which he argued that infringements on free speech put all other rights in jeopardy and made the very practice of democracy impossible.
None of this works against Parry's case
that the conservative right has no claim to appropriate Madison--for the right's enthusiasm for the Patriot Acts and for the sacrifice of huge chunks of the Bill or Rights regarding due process shows they are no legitimate sons of Madison.
 
 
+1 # FreedomFromTyranny 2012-02-15 12:58
This is a rather specious argument. It does not follow that the desire to strengthen the Federal government enough to unite the 13 colonies means that the founders desired a government of the present over-arching scope and ability. A plain reading of the Constitution shows that the delegated powers are few and enumerated and all others are left to the States. It is only by a tortured interpretation of those powers that they become "broad". Only a tortured interpretation of the commerce clause leads to a conclusion that commerce wholly limited to one state falls under Fed regulation since it may affect commerce in another state. It's "inter"-state commerce not "intra"-state commerce.

*Actually, I believe that many founders didn't feel the Bill of Rights to be necessary since the powers were enumerated and limited (Hamilton Federalist 84).

*It is true that a central govt. has a place, mostly (but not all) as some examples in this article state in an external way: making treaties, fighting wars and the like. It's rather ironic that the govt. has given away powers to do what it's supposed to (declare war, control money) but wants to grab powers that it doesn't have (banning firearms, trampling on the rights of a religion, the TSA, etc...).

Let the avalanche of hate begin...
 

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