Review of “James Madison: A Life Reconsidered” by Lynne Cheney

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Cheney’s biography is a thorough and very well-written but ideologically driven account of James Madison’s life and especially his influence on the Constitution. She writes:

By the time of the Philadelphia convention, Madison was the political equivalent of Mozart in the late 1770s, who after years of writing music was about to create his greatest works. He was Einstein, who after years of studying with ‘holy zeal’ was on the verge of his annus mirabilis, the miracle year of 1905, in which he would establish the basis of the theory of relativity and quantum physics.”

This paragraph is a good example of one of the main problems I had with this book. The hyperbole about Madison is way over the top. While Cheney occasionally mentions at least some of the intellectual contributions of other Enlightenment thinkers in the 1700s (all of whom influenced both Jefferson and Madison) including Locke, Montesquieu, Hume, Kant, Rousseau, and Voltaire, basically Madison is to Cheney an original thinker showing a rare genius with few equals in history. She never even mentions the large impact made by the American, Roger Williams, with his seminal 1644 treatise about the freedom of religion, which inspired the Enlightenment figures (particularly John Locke) who then in turn influenced the Americans of the next Century.

Furthermore, she downplays the huge role of Alexander Hamilton in the Federalist Papers, which is absurd considering that he produced most of the essays. Rather, Cheney contends, it was Madison who was the chief architect and primary interpreter of the Constitution, and “more than any other individual . . . responsible for creating the United States of America in the form we know it today.” Most historians would list Jefferson, Hamilton, and even George Washington in that capacity before they would throw Madison’s name into that hat. [Hamilton's Reports on the Treasury were also voluminous, brilliant, and consequential for the evolving shape of the country.]

Alexander Hamilton portrait by John Trumbull 1806

Alexander Hamilton portrait by John Trumbull 1806

Another complaint I have is Cheney’s depiction of the issues that fired the quest for independence. She mentions the imposition of taxes, for example, but completely omits how many objections to them were related to the fact that they would cut into the profits of successful smugglers, like John Hancock. She also never mentions the anger the colonists felt over the British having the nerve to enforce treaties they made with the Native Americans, rather than just allowing the colonists to take over all that rich land. Similarly, she takes no note of the role George Washington played in actually starting the French and Indian War, only observing that he had a reputation for great courage in that conflict. In other words, like other conservative historians, she is eager to cast the early Americans in the best light, leaving out evidence of their greed, hypocrisy, and other instances of bad behavior.

1772 portrait of Washington painted by Charles Willson Peale, showing Washington in uniform as a colonel of the Virginia Regiment.

1772 portrait of Washington painted by Charles Willson Peale, showing Washington in uniform as a colonel of the Virginia Regiment.

Speaking of bad behavior, Cheney, in enumerating all that Madison had in common with his BFF Jefferson, avers:

They both hated slavery, upon which Virginia’s culture and commerce were built. They understood the contradiction between the liberty they sought for mankind and the servitude they witnessed daily, yet at the end of long lives they would both die owning slaves.”

What she elides over here is that they didn’t just “witness” servitude, they actively participated in it, particularly Jefferson. Jefferson not only pursued slaves who ran away, but had his overseer whip the young male slaves when they didn’t work hard and long enough. Moreover, neither freed their slaves upon their deaths, even, in Jefferson’s case, in spite of promising at least to free the offspring of his mistress, Sally Hemings. (Madison did in fact have a legal problem with dower slaves, so that he wasn’t entirely able to free all of them upon his death even if he so desired. Jefferson, who had no living spouse, did not have that excuse.)

But the meat of the book is a very exhaustive account of Madison’s political life. Cheney provides a lot of minutiae, and quotes extensively from Madison’s papers. Even Dolley, as delightful as she was by all accounts, doesn’t get much coverage in this book. While this makes the book a welcome resource for scholars, it makes it a little too dense for leisurely history reading.

Dolley Madison

Dolley Madison

Discussion: Some critics have argued that the agenda of the book is to establish Madison’s supremacy as a Constitutional “Founding Father.” This would definitely be of assistance to the right wing of the current Supreme Court because of Madison’s advocacy of strict construction and states’ rights. Madison did in fact write in Federalist No. 45, “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.”

federalist

But Madison, like Jefferson, discovered that once he held the office of President, he regarded the power split quite differently. In fact, he was driven to claim that the very idea that he once supported state nullification was totally wrong. (He seems to have forgotten that he actually authored the Virginia Resolution of 1798. Cheney contends it was Jefferson who inserted the words “null, void, and of no force or effect” into Madison’s draft, but that Madison was too loyal to his friend to point that out.) She also records Madison’s outrage on Jefferson’s behalf when Jefferson’s private letters were disclosed revealing his own lack of hesitation to wield executive power when he thought circumstances called for it. Madison huffed that private communications should remain private.

Cheney also downplays Madison’s darker side. Just to take one example, consider Madison’s authorship of the so-called Helvidius essays. Jefferson often used Madison to do his dirty work. In this instance, in 1793, he wanted Madison to attack Hamilton:

For God’s sake, my dear Sir, take up your pen, select the most striking heresies, and cut him to pieces in the face of the public.”

Usually, Madison was a willing patsy for Jefferson, although this time, he was not eager to do it for a variety of reasons, some of which had to do with his health and other commitments. In any event, Cheney merely notes that Madison argued “the nuances of legislative versus executive power” and other such academic issues. Ron Chernow, in his biography of Hamilton, provides specific quotes from the essays to show that Madison (anonymously of course) showed little reticence in print, revealing a great deal of animosity as he “flayed Hamilton as a monarchist ….”

Evaluation: Cheney is very polished as a writer, and very detailed (at least when it suits her agenda) as an historian. In most respects, this biography provides a thorough, if a bit white-washed and exaggerated account of Madison’s participation in, and importance to, the founding of the American Republic.

Rating: 3.5/5

Published by Viking, a Penguin Random House Company, 2014

September 20, 1810 – Thomas Jefferson Weighs In on The Rule of Law

On this date, Thomas Jefferson wrote a letter to John B. Colvin, in which he opined:

The question you propose, whether circumstances do not sometimes occur, which make it a duty in officers of high trust, to assume authorities beyond the law, is easy of solution in principle, but sometimes embarrassing in practice. A strict observance of the written laws is doubtless one of the high duties of a good citizen, but it is not the highest. The laws of necessity, of self-preservation, of saving our country when in danger, are of higher obligation. To lose our country by a scrupulous adherence to written law, would be to lose the law itself, with life, liberty, property and all those who are enjoying them with us; thus absurdly sacrificing the end to the means.”

20070521-thomas-jefferson-picture

Why Tool Belts Are Important

On this day in history in 1980 – September 19, an Air Force repairman doing routine maintenance in a Titan II silo in Damascus, Arkansas dropped a heavy wrench socket. It rolled off a work platform and bounced down about eighty feet to the bottom of the silo, striking the missile and causing a leak from a pressurized fuel tank. The missile complex and the surrounding area were evacuated and a team of specialists was called in from Little Rock Air Force Base, the missile’s main support base.

Some eight and one-half hours after the initial puncture, fuel vapors within the silo ignited and exploded, blowing the 740-ton launch duct closure door 200 feet into the air and some 600 feet northeast of the launch complex. The W-53 nuclear warhead landed about 100 feet from the launch complex’s entry gate; its safety features operated correctly and prevented any loss of radioactive material. One member of the team, his leg broken, was blown 150 feet from the silo. Another lay amid the rubble of the launch duct for some time before security personnel located and evacuated him, but he died later that day of his injuries. Twenty-one people were injured by the explosion or during rescue efforts.

In early October 1980, cleanup operations gathered tons of debris from 400 acres surrounding the launch complex and pumped some 100,000 gallons of contaminated water from the silo. Ultimately, the Air Force decided to seal the complex with soil, gravel, and small concrete debris.

Expensive, but worth it!

Expensive, but worth it!

Review of “Law Lit: From Atticus Finch to The Practice” edited by Thane Rosenbaum

This book, subtitled “A Collection of Great Writing About the Law” is a compendium of classic depictions of the legal system in action.

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Selections include passages from works such as Kafka’s The Trial, Shakespeare’s The Merchant of Venice, Richard Wright’s Native Son, David Mamet’s The Verdict, J’accuse by Emile Zola, and much more, including of course, Harper Lee’s To Kill a Mockingbird.

The excerpts are grouped into nine parts: The Law Elevated; Lawless Law; The Law and Liberty; Law Made Low; The Law Laborious (of course you will find Scott Turow’s One L in this section, but you will also find a piece from Lewis Carroll’s Alice’s Adventures in Wonderland); The Lawyer As Lout; The Law and the Loophole; Layman’s Law (e.g., A Civil Action by Jonathan Harr); and The Law and Longing.

Rosenbaum observes, much as Robert Cover famously did (Cover, Robert M., “Violence and the Word,” Yale L.J. 95:1601, 1986) that it is in the courtroom where one form of violence is substituted for another. In some rather deft writing of his own, Rosenbaum states in his Introduction:

The legal system offers a bloodless way of moving the fight from the streets to wood-paneled, marble-walled arenas where the pounding of a gavel is presumed to soften the blow. And once inside the courtroom, everyone is aroused by the spectacle of warring combatants dressed in coats of Armani, arguing subtle points, disputing facts, badgering witnesses, distorting truths, doing whatever it takes to win.”

People are obsessed with these legal spectacles, he avers:

While many have a poor opinion of lawyers and the legal profession, these same people can’t seem to get enough of the law when it comes to their consumption of culture.”

And when the law doesn’t feel moral or just, Rosenbaum contends, this is where the artist enters, at “the intersection between the longing for law and the consequences of law.” (Yet another sign of Cover’s influence, with his seminal article “Nomos and Narrative” on the ways in which law serves as a bridge between what is and what ought to be. (Cover, Robert M., “The Supreme Court, 1982 Term — Foreword: Nomos and Narrative” 97 Harv. L. Rev 4, 1983.)

Lawyers make good fictional characters, Rosenbaum notes. And law literature plumbs the depth of human experience that is generally omitted from legal opinions. Rosenbaum endeavors to fill that gap with this very fine selection of the best of legal literature. In what other kind of anthology would you find represented the work of Margaret Atwood, Langston Hughes, Charles Dickens, and Johnny Cash (“Folsom Prison Blues”) all in the same place?

Evaluation: There is something in here for everyone, whether you are a legal professional or you just love great writing. The author does a fine job preceding each selection with sufficient background to enable you to appreciate the upcoming passage.

Published by The New Press, 2007

September 16, 1818 – Connecticut Finally Approves a State Constitution

The first formal government of Connecticut was set forth by The Fundamental Orders, adopted on January 14, 1639 OS (January 24 NS). (You can read the text here.) It has the features of a written constitution, and is considered by some as the first written Constitution in the Western tradition, thus earning Connecticut its nickname of The Constitution State.

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In 1660, King Charles II reassumed the monarchy in England, effectively ending the period of the English Revolution. (The English Civil War led to the trial and execution of Charles I, the exile of his son, Charles II, and replacement of English monarchy with, first, the Commonwealth of England (1649–53), and then with a Protectorate (1653–59) under Oliver Cromwell’s personal rule.) Since Connecticut had never been officially recognized as a colony by the crown, the General Court determined that the independence of Connecticut must be legitimized. Connecticut’s governor, John Winthrop, Jr., was sent as an emissary to negotiate with the English government, and set sail for England on July 23, 1661. He proved successful in his mission, and the English attorney general approved a bill for incorporation of the Connecticut Charter. After being officially sealed and registered, the document was returned to Connecticut and adopted by the General Court on October 9, 1662. (You can read the text here.)

A copy of the original charter granted to the colony of Connecticut by Charles II in 1684 attached to a copy of the Acts and Laws of the Colony in 1750

A copy of the original charter granted to the colony of Connecticut by Charles II in 1684 attached to a copy of the Acts and Laws of the Colony in 1750

The Connecticut Charter displaced the Fundamental Orders to become the governing authority for the colony. Its practical effect on the government however, was minimal and Connecticut continued to operate much as it had under the Fundamental Orders.

The General Assembly formally approved the Declaration of Independence with the other colonies. However, in its resolution the legislature it declared that Connecticut’s government, “shall continue to be as established by Charter received from Charles the second, King of England, so far as an adherence to the same will be consistent with an absolute independence of this State on the Crown of Great Britain…” While eleven of the thirteen colonies had drafted state constitutions by 1786, Connecticut elected to continue operation under the Charter. Connecticut retained this scheme of government until 1818, when the first true constitution was adopted.

As a result of the 1818 constitution, the Congregational Church was finally disestablished. (You can read the text of that constitution here.)

(In 1801, Danbury, Connecticut Baptists sent a letter to President Thomas Jefferson complaining that, in their state, the religious liberties they enjoyed were not seen as immutable rights, but as privileges granted by the legislature — as “favors granted.” Jefferson responded, in part:

Believing with you that religion is a matter which lies solely between Man & his God, that he owes account to none other for his faith or his worship, that the legitimate powers of government reach actions only, & not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should “make no law respecting an establishment of religion, or prohibiting the free exercise thereof,” thus building a wall of separation between Church & State.”

[His reply did not address their concerns about problems with state establishment of religion — only of establishment on the national level.] The letter is however most famous for its use of the phrase “wall of separation between church and state,” which led to the Establishment Clause that we use today. You can read Jefferson’s entire letter here.

In other matters, the 1818 Constitution solidified new voting rights, and separation of powers was finally brought to Connecticut government. An independent judiciary was approved.

The constitution did not significantly change the role of the executive, and the branch remained relatively weak. The executive did however, became a constitutional and independent part of the government.

The legislative branch also experienced a few changes. The Council was renamed the Senate. By constitutional mandate, half the legislative sessions were to take place in Hartford with the other half convening in New Haven.

Preamble of the 1818 Constitution

Preamble of the 1818 Constitution

Although many amendments were added over the years, the Constitution of 1818 remained in operation until 1965. There was also a Constitution of 1955, but it merely incorporated prior amendments into the main body of the constitution.

Connecticut currently operates under the constitution passed in 1965, the text of which is here. The primary purpose of the 1965 constitutional convention was reapportionment of the representatives in the lower legislative house. Apart from this major change, a majority of the language from the 1818 Constitution was reaffirmed verbatim or almost verbatim in 1965. The Constitution of 1965 remains the supreme authority in Connecticut today, although it has been amended quite a few times. You can access a legislative history of amendments here.

Party Like It’s 1787

On September 14, 1787, the First Troop Philadelphia City Cavalry hosted a dinner for George Washington at the City Tavern in Philadelphia. City Tavern, built in 1773, also called the Merchants’ Coffee House, was the political and business center of Philadelphia. All the leading persons who signed the Declaration of Independence and the Constitution met here. George Washington’s diary indicates that he would dine and talk politics with other delegates here at least once a week.

George Washington

Alcoholic beverages played an important role in Colonial America since drinking wine and beer at that time was safer than water – which was generally used to dispose of sewage and garbage. Thus, at Washington’s party on September 14, we find that the colonists celebrated in only the most healthy way. According to the bill submitted the next day, the fifty-five gentlemen in attendance consumed 54 bottles of Madeira, 60 bottles of claret, 22 bottles of porter, 8 bottles of hard cider, 12 bottles of beer, 8 bottles of ale (“barley wine”), and 7 large bowls of spiked punch. It can only be presumed a good time was had by all….

The City Tavern in Philadelphia

September 13, 1862 – Union Discovery of Confederate Plans for Antietam

On this day in history, two members of the Union 27th Indiana Corps discovered a piece of paper wrapped around three cigars. The paper was addressed to Confederate General D.H. Hill and contained Lee’s very detailed Special Order No. 191 for upcoming operations at Antietam.

The Division Adjutant General, Samuel Pittman, recognized the handwriting and knew the paper came from Lee’s Adjutant General. He took the order to General McClellan who gloated over it. But alas, McClellan had second thoughts, as was his habit, and he failed to take advantage of the opportunity.

Four days later, 23,000 soldiers were killed, wounded or missing after twelve hours of savage combat at The Battle of Antietam. Although considered a Northern victory, it was also the bloodiest single-day battle in American history. In addition, Lee’s army was able to retreat to Virginia when it possibly could have been destroyed.

Side 1 of Special Order No. 191

Side 1 of Special Order No. 191

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