As if anticipating contemporary woes about the likelihood of major policy shifts emerging from the legislative process, Madison made this prescient remark: “All new laws, though penned with the greatest technical skill, and passed on the fullest and most mature deliberation, are considered as more or less obscure and equivocal, until their meaning be liquidated and ascertained by a series of particular discussions and adjudications” (341). He might as well have been describing not just any legislation, but the very process and product of his own labors at the Constitutional Convention of 1787 and the ratification process of 1788, the latter of which had required a series of amendments – against his and Hamilton’s sincere wishes – to be appended to what its designers saw as an eminently complete document. Madison foresaw the situation Rakove describes as a twofold constitution: “the formal document adopted in 1787–88, with its amendments; and the working constitution comprising the body of precedent, habits, understandings, and attitudes that shape how the federal system operates at any moment” (339).

    Rakove’s warnings about the dangers of fetishizing “original intent” are well taken in today’s political climate, when the relentless branding of Tea Party this and Tea Party that only serves to obfuscate the complexity and richness of the context from which the Constitution as a document emerged, with Hamilton himself conceding that “no ‘formal proof of the opinions’ of the framers existed” (358). This is important to remember. In fact, Tea Party enthusiasts – or anyone charmed by their breathless rhetoric of a mythical return to Constitutional austerity – can do no better service than to go back and read the Federalist Papers and see for themselves just how vigorously Madison and Hamilton argued against the inclusion of the Bill of Rights and how persuasively their political opponents (bearing names few Americans, Tea Partiers or otherwise, would recognize) argued for it. In the end, I think, Hamilton and Madison relented because they understood the “living document” principle they had made every attempt to circumscribe in their own industrious defenses was not something that could be defeated in words. Only time and experience would tell. And both have told.

    “Democracy – and especially American democracy –” Rakove writes at the beginning of his coda, “is an endless present, a polity that occasionally looks forward but rarely looks back (except through mists of nostalgia and myths of origins that little resemble the complexities of the past)” (366). Our most patriotic duty, it seems then, is to guard against political thinking (and unthinking) that purports to simplify the debates of the past, turn our founding documents and their writers into cartoon characters, and in general, render a false idol out of a document that faced revision even before it took effect. We do this by reading carefully and trying our best to escape the natural parochialism of the present.

As we’ve seen before, Rakove profitably draws on period critics – the Anti-Federalist writers – to underscore salient points in the Founders’ treatment of rights, especially as political pressure mounted to draft a “Bill of Rights,” basically, a series of post-haste amendments to the still fresh Constitution, whose own ink was barely dry. Richard Henry Lee surfaces as a notable and articulate voice in the debate, willing as he was to detail specific rights “that needed explicit protection: freedom of religious conscience and the press; prohibitions on excessive bail, cruel and unusual punishment, and unreasonable searches and seizures; assurances of free elections, independent judges, and the right to petition; and restrictions on standing armies in peacetime” (319). The thematic thread binding these concerns together was a real worry that the Constitution’s expanded federal powers would gradually usurp the very entitlements for which the revolutionary generation had fought such a bitter campaign against the distant English crown. Lee also sought to affirm the primacy of “trial by jury in criminal and civil cases and other common-law protections in criminal prosecutions” (319). Hamilton responded to these latter requests at length in Federalist 83, which offers detailed philosophical, but predominantly pragmatic, reasons why trial by jury could not be mandated among the short list of protected rights included in the declared “bill” that, as we’ve seen, already embraced a highly idiosyncratic selection of issues.

James Wilson gave well-reasoned responses to some of the particulars as well as the basic premise of Anti-Federalist anxieties like Lee’s in his argument that “[t]here was no need to affirm the freedom of press, for example, because nothing in the Constitution could be plausibly read to give the federal government any ‘power to shackle or destroy that sacred palladium of national freedom.’” (320). Wilson also reprises a concern discussed in the previous entry, recalling the theoretical danger in stipulating rights so specifically: “The very insertion of a provision to protect a particular right might be falsely ‘construed to imply that some degree of power’ to regulate its exercise ‘was given, since we undertook to define its extent’” (323). But the Federal Farmer, who had so keenly observed other flaws in the Constitution, made the most robust reply: “A bill of rights did not create the rights it declared; a people were entitled to their rights ‘not because their ancestors once got together and enumerated them on paper, but because, by repeated negociations and declarations, all parties are brought to realize them, and of course to believe them to be sacred’” (324) A remark like this could be construed as an argument either for or against the necessity to have specific rights laid down “on paper,” however, and like many aspects of the rights debate, we can see the advantages of both scenarios. Unspecified rights and no document might well become more subject to government infringement, and yet, as we’ve seen, specified rights and a document can imply that other rights do not enjoy equal protection or attention. Danger lurks in both outcomes.

Despite the foregoing ambivalence regarding the method and formality of transmittal, however, there’s little to dispute in Rakove’s reference to the “educational” value of a bill of rights, which draws on John Locke’s thinking, so influential on Madison’s generation: “Bills of rights were educational documents; they provided the standards of certainty that enabled citizens to assess doubtful acts of government; and they worked best by inculcating the values they espoused among the people and their rulers” (324). When I was an undergraduate at the University of Michigan, a course taught by the then-president, Lee Bollinger, on the First Amendment, was consistently one of the most popular and oversubscribed courses in the catalogue. Certainly, his intellectual prominence and general likeability on campus were major factors in this draw, but I have to believe that a special thrill was also perceived in the chief executive of a major public university teaching a course to young people on protected speech and other rights that American children had been taught to honor and cite ad nauseam from the earliest grades of elementary school.

The stature of the Bill of Rights in today’s political discourse – the near-cliché of politicians who claim to carry around a copy in their pockets – is clear evidence that Locke was onto something. Even relatively unlettered Americans know these basic rights, whether it’s the initial ten or even just a handful of amendments out of order and context, and if they want to, and only because the rights are written down, they can carry around a copy in their pockets. The Anti-Federalists appeared to have understood that potential, and ultimately, even the framers – however reluctant they were at first – had to reckon with it as well. And the rest of us have to live with its mixed legacy, for better or worse.

In his penultimate chapter “Rights,” Rakove’s study of “original meanings” looks into the underpinnings of American understandings of “rights.” Citing the work of other historians and theorists, Rakove’s depicts the American preoccupation with rights as a kind of inherited obsession, yet one somehow more virulent and expansive than that of its English progenitors. The term for this obsession alone, “rights-talk,” intrigues us in its emphasis on declaring or articulating one’s entitlements, making them known verbally in one form or another. Englishmen – with their reverence for tradition and their comfort with an unwritten constitution – were content to leave their rights implied, if philosophically grounded in complex treatises of a more epistemological character. But Americans had to talk about rights, make them a matter of public conversation, and ultimately, get them listed in terse bullet-point format. “To such critics as Mary Ann Glendon, rights-talk impoverishes ‘our political discourse through ‘its starkness and simplicity, its prodigality in bestowing the rights label, its legalistic character, its exaggerated absoluteness, its hyperindividualism, its insularity, and its silence with respect to personal, civic, and collective responsibilities’” (288).

Working from Glendon’s critique, we can easily ascertain how frequently Americans tend to confuse right with privilege in speech and feeling. We are so entrenched in the language of rights that we begin to deploy the term promiscuously, speaking of the right of way on a road, tenant’s rights, right to work, and even the right to life. In our behavior, we claim the right to consume certain resources in ever more prodigious quantities, the right to protect our interests (“at home and abroad” goes the phrase), even the dubious right of self-defense through preemptive war. There’s not much, indeed, to which Americans don’t feel they have a right, when the term serves as a substitute for what are essentially privileges of a historical moment and place. In American usage, rights are merely privileges moralized. And thus the Bill of Rights ends up looking like a very strange document: “Yet for all its merits, a clause-bound approach to the Bill of Rights skews our understanding by implying that the original challenge the revolutionaries faced was to identify, enumerate, and define with textual precision the rights that Americans most valued” (289). On the other hand, unstipulated rights – let’s say the right to grow up with relatively clean air, water, and soil – are never likely to ascend to the level enjoyed by gun owners, for example, simply by dint of the fact they aren’t constitutionally enumerated.

And so an almost comical paradox obtains: “Adhering to traditional notions, Americans saw themselves defending a body of customary rights that common law, precedent, and history had all secured” (293). In one sense the old idea of American exceptionalism that persists today is evident in these early debates, but with a layer of noteworthy irony: Americans wanted to believe themselves special, and yet at the same time, attached a certain universalism to their various truth claims. Rakove’s discussion of rights-talk tries to reckon with that quirk in our national character. On the other hand, despite the American tendency to cast a notion of rights as vaguely “traditional” or “customary” – and thus, inherited, inalienable – Rakove cites historian John Phillip Reid in identifying “no fewer than ten sets of plausible authorities or justifications” in substantiating these rights: their rights as Englishman; natural law; the emigration contract; the original contract; the original American contract; the emigration purchase; colonial charters; equality with other British subjects, especially with Protestants in Great Britain and Ireland; principles of the British constitutional and principles of the customary American constitution (293). In other words, as in so many matters, Americans wanted things both ways: rights were natural, inherited, and automatic and rights were eminently grounded in layers of legal documentation and precedent, indeed, textually undeniable.

You can’t beat the Federalist writers for at turns making an arguably very simple and brief Constitution seem elaborate and nuanced to an extreme and simultaneously rendering complex relationships among branches of government seem very simple and stark. Hamilton’s Federalist 78 presents a splendid example of the latter strain. His explication of the judiciary’s role in the overall scheme of balance of powers is elegant and punchy, a self-contained civics lesson. Operational words are reduced to three, one for each branch of government: force (executive), will (legislative), and judgment (judiciary). Hamilton’s secular trinity has a mnemonic power to it, but also significant explanatory, if simplistic, charm, worth quoting at length: “The executive not only dispenses the honors but holds the sword of the community. The legislature not only commands the purse but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society, and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL but merely judgment; and must ultimately depend upon the aid of the executive arm for the efficacy of its judgments (465). As far as goes what we would now call “legislating from the bench” – as “activist judges” from California to Wisconsin are accused of practicing – Hamilton is clear that courts must never do it: “The courts must declare the sense of the law; and if they should be disposed to exercise WILL instead of JUDGMENT, the consequence would equally be the substitution of their pleasure to that of the legislative body” (469). As a particular branch of government loses its character and usurps that of another, the entire system is subject to breakdown and distortion of authority, a fact well worth remembering.

Rakove continues his discussion of the origins of the presidency with some more very prescient worries voiced by the Anti-Federalists, many of which speak to present-day shortcomings in our political system. One issue of particular import was how the Constitution would check against (or alternatively, bolster) native elements within American society that would support (or detract from) healthy democratic rule. Patrick Henry, that legendary orator from the revolutionary era, made a strong argument that may surprise modern readers in its conclusion: “Henry’s point was not that it would be better to establish a nobility, but that in the absence of a true aristocracy, senators would seek to convert themselves into an aristocracy of ambition” (272). In this, and elsewhere in the Anti-Federalist critique, we sense a ripe anxiety as to how well national self-governance would suit a people that had chucked the class-obsessed hierarchies of the Old World in favor of a romantic, if ineffable, belief in the “natural aristocracy” of talent and hard work.

The seemingly paradoxical worry that in lacking a time-honored class structure that distributed power and influence based on inherited station Americans might carve a path to power (and indeed, wealth) through the “emoluments” of office-holding – which to Henry seemed almost more sinister, because less predictable – is not a difficult one to reconcile. One need only look at the trend of “ordinary men” being championed on the political stage as evidence that in some ways American egalitarianism is as rigid and random as European class obsessions were ossified: such candidates don’t remain “ordinary” for long. In the same vein, Americans have begun to notice that many congressional representatives and senators (and some presidents) arrive in the job from the middling classes, but tend to leave office quite wealthy. Henry was previewing that very likelihood in important ways. In a more class-fixed society, political power offers fewer temptations for personal aggrandizement.

The Anti-Federalists also wondered whether a president would be an effective check on legislative authority or merely a tool of the Senate: “Whatever ‘weight and importance’ the president enjoyed would depend on ‘his coincidence with views of the ruling junto in that body.’ In practice, the president ‘may always act with the Senate, but never can effectually counteract its views,’ the Federal Farmer warned, and in contest between the houses of Congress, the executive might similarly ‘aid the Senatorial interest when weakest, but never can effectually support the democratic [House] however it may be oppressed” (270). In the contemporary partisan landscape of divided government, with the Senate’s use of the filibuster as the go-to instrument of minority opposition, we can see just how insightful the Federal Farmer was in binding the president’s fortunes to the whimsies and biases of the Senate.

In two respects, however, the Anti-Federalist critique falls short in anticipating current dynamics in the American political landscape: “In their criticisms of Article II, they found no middle ground between the specter of monarchy and the danger of cabal within the Senate; they could not imagine the president acting as an independent source of political influence within the government, much less being the focus of political agitation without” (275). In other words, the framers were inordinately concerned with a limited set of possible abuses of political power. They had no way of predicting the influence that well-funded lobbies and entrenched special interests could potentially have on a single political actor. A prominent critique of President Obama recently published in the New York Times notes his failure to use the bully pulpit in crafting an honest and constructive narrative to bridge American differences and calm fears about economic decline. Many rebuttals have faulted that critique for perpetuating the myth of presidential oratory as the prime mover of political change. In either case, in the very argument itself we see the expectation that the president potentially could have had a degree of influence that goes well beyond what the Founders imagined, particularly in their belief that “[e]xecutive power in the United States could never turn monarchical because presidents must derive all their authority and influence from the Constitution itself” (276).

The extent to which the Founders believed the president would remain a modest executor of the laws crafted by Congress and not an independent and charismatic political force in his own right may strike us as naive, smacking of the same kind of idealism we see in Federalist 76, in which Hamilton ascribes fear of rejection as guiding the president’s choices in submitting nominations for high office: “The possibility of rejection would be a strong motive to care in proposing. The danger to his own reputation, and, in the case of an elected magistrate, to his political existence, from betraying a spirit of favoritism or an unbecoming pursuit of popularity to the observation of a body whose opinion would have great weight in forming that of the public could not fail to operate as a barrier to the one and to the other. He would be both ashamed and afraid to bring forward, for the most distinguished or lucrative stations, candidates who had no other merit than that of coming from the same State to which he particularly belonged, or of being in some way or other personally allied to him, or of possessing the necessary insignificance and pliancy to render them the obsequious instruments of his pleasure” (458). It’s worth quoting this passage at length if only to illustrate how much trust ardent Federalists like Hamilton and Madison placed in the character and straightforwardness of the presidency.

In the heyday of what many call the “imperial presidency,” it is illuminating and perplexing to go back to the original debates surrounding the establishment of the chief executive and how limited the controversy was considering the relative heavy emphasis paid to the formation the House and the Senate, which the Founders considered the moral and practical core of a tripartite government. The framers were, of course, substantially influenced by their admiration for the separation of powers in their decision to position the president as a check on the lawmaking and tax-and-spending authority of the Congress, but they were also drawing from the quite weak executive frameworks of the prerevolutionary colonies and the states under the Articles of Confederation, many of whose governors were closely monitored by advisory “councils” much more powerful than today’s executive “cabinets”. The Virginia Plan debated in Philadelphia endeavored to strip all notion of “prerogatives” from the office of the presidency, “those badges of domination” (249). Clearly, the taste of an overextended monarchy was still sour in the mouths of the Founders, and they set things up to avoid the worst abuses of power they could imagine at the time. What’s amazing from a modern perspective is how narrowly they often imagined those abuses.

    In particular, Rakove notes a good deal of attention paid to whether or not “executive rights included matters of war and diplomacy”: were these considered aspects of administration? Congress – as a deliberative body – was a less convenient forum for negotiating the details of treaties and trade agreements and certainly a less efficient place to command and control the affairs of war. That much makes sense. The power of the purse was considered such a strong check on executive overreach that the framers of the Constitution could believe cutting off funds – or denying appropriations in advance – would present a sufficient bulwark against unilateral military action. There was a tactical angle to consider, too, as Rakove explains: “Though Congress could still exert great influence through its power of the purse, allowing it to make war (in the sense of directing operations) was another form of encroachment that would compromise the benefits of holding the president as responsible for the conduct of war as for the administration of war as for the administration of government” (263). But whether or not the executive branch has always observed proper decorum in informing Congress and seeking legislative consent in matters of war has been a subject of acrimonious debate ever since, certainly since World War II, the last time war was officially declared in the traditional sense. The dustup over President Obama’s decision to commit U.S. air power to NATO’s operations in Libya is only the most recent example of ambivalence in public understanding and attitudes about the separation of powers with respect to warmaking authority.

    Indeed, what conventioneers spent the most energy discussing were the basic parameters of the presidential office itself: method of election, reeligibility, length of term, the impeachment process, and council of revision (veto power). Robert Morris, in particular, made an eloquent case that the veto was necessary “to discourage or annul the passage of ‘unjust and pernicious laws,’ and to make the executive . . . ‘the guardian of the people, even the lower classes, agst. Legislative tyranny, against the Great & the wealthy who in the course of things will necessarily compose the Legislative body” (261). Morris could well be describing the ethos and strategy of Obama’s communications team in the recent debates about raising the debt ceiling with a “balanced package,” coded language for raising taxes on the wealthiest segment of society, and their urging lawmakers not to balance the federal budget “on the backs of the middle class, seniors, and most vulnerable,” language that reveals the deep roots of any notion of the president – even one called “corporatist” by progressive critics – as guardian-protector of the people.

    When the electoral college emerged as a compromise between the direct popular election and legislative appointment of the president, very little controversy or anxiety seemed to attach to its role in practice. In the late 18th century, when reliable roads were still a luxury in most parts of the country and telecommunications were limited to hand-delivered written correspondence, one can imagine how the electoral college came into view as a convenient way to marshal the opinion of disparate and distant voters in the body politic. Still, Rakove’s assessment is that “[t]he electoral college similarly owed more to the perceived defects in alternative modes of election than to any great confidence that this ingenious mechanism would work in practice” (267) Given the way the electoral college failed to deliver the same result as the popular vote in the contest between George W. Bush and Al Gore in 2000, we might wonder whether the invention has outlived its original ingenuity, as we’ve commented elsewhere. In any case, the genesis of the electoral college at the Convention of 1787 is another example of either how idealistic and trusting the document was in its literal content or just how poorly the contemporary U.S. fits its original intent. Perhaps it is both, after all.

The final portion of Rakove’s chapter on representation confronts a number of issues handily relevant to contemporary tensions in American political culture. Through the voice of the “Federal Farmer,” a moderate New York Anti-Federalist thought to be Melancton Smith, we encounter a formidable suspicion that Madison and Hamilton’s vision for a strengthened central government was as deeply rooted in idealism and perhaps innocence as it was in pragmatism and hard-earned revolutionary experience. In particular, “The casual faith that Federalists placed in the people’s ability to ‘elect good men’ struck the ‘Federal Farmer’ and Smith as naïve” (230). Another writer warns of a politician as a species of “weathercock,” swaying this way and that to suit a particular whim in the electorate. We have seen in other comments that Madison himself had doubts about the quality of recruits to the national legislature, but somehow his faith drove him on. One issue of immediate concern was the number of representatives to be fixed against a state’s population; first 30,000 and later 40,000 residents were assumed to be adequately represented by a single Congressman, a quaint figure when you consider how the pressures of population growth as well as demographic diversity have changed the stakes and the scope of representation.

    Now, of course, a complicated districting process based on the census determines the number of seats in a particular state. But at the time, large districts were thought to be dangerous: “Large districts would promote improper choices by making it all to easy to scatter votes among obscure or spurious candidates, and all too difficult to gather votes in the limited number of polling places that customary practice required, and where the very act of assembling would promote a knowledgeable choice” (232). Given the rural and largely agrarian demographic landscape of the country at time – remembering too that voters were themselves all male landowners – this simple assumption about the gathering of gentlemen farmers being convenient and proper is not all that far-fetched. Needless to say, however, communications technology and demographic density have eliminated the grounds on which this calculation was originally made.

    From this moderate Anti-Federalist camp, we also find interesting commentary on the true motives behind the Federalists’ rather traditionalist assumptions about representation, particularly in the belief that “the majority deserved not so much to rule as to be protected from misrule; not so much to legislate in pursuit of its interests as to be secured against statutes that would reflect the high ambitions of the privileged classes” (232). The trend of a limited republic stems from the Founders’ general admiration of Parliament’s functioning as the bulwark against unchecked monarchism in the English system, in which an elected elite protects the interest of the “general will” – to borrow Rousseau’s famous and problematic terminology – but makes no broad attempt to represent the people directly as a more populist or majoritarian system would. In other words: “As much as [the Founders’] call for broad representation anticipated the avowedly democratic politics of the next century, its aim was far less to mobilize the American people to make law than to assure that the interests of the middling classes would not be trampled upon by an aristocratic clique” (233). The ultimate goal, therefore, was to forestall the misuse of political power and economic influence not to distribute it evenly. Our system has always been pretty frank in its pursuit of that paradigm.

    Rakove goes on to highlight an area of vulnerability that certainly rings true in today’s debate concerning the debt ceiling, the soaring deficit, and balancing the country’s books for the long haul: “The greater danger was not that Congress would levy onerous taxes on a docile people but that it would still lack the political will to solve the crisis of public finance” (238). Modern-day partisan politics have only exacerbated this built-in design flaw: Democrats want to preserve programs without raising taxes; Republicans want to cut taxes without eliminating programs. The result is the impasse of the status quo. In the end, we are struck with the impression of a fairly optimistic and trusting document that left a lot of variables open to historical accident and evolution when it came down to the nuts and bolts of the political process: “The Constitution made no effort to reduce or regulate the size of the national electorate; or to impose significant qualifications on eligibility for office; or even to determine how national elections were to be conducted” (243). With all the adulation the Constitution garners in today’s political rhetoric from both left and right, it’s instructive to remind ourselves just how little it actually does and says.

Please describe your association with Greg Mortenson and your role in shaping the story that became Three Cups of Tea.

My name is Ghulam Parvi. I was the main contact person for Greg Mortenson’s Central Asia Institute (CAI) in Baltistan. While reading the book, you will read many praises to me. I was the translator to Mr. David Oliver Relin, the coauthor of the book. You know, I requested Greg Mortenson and David Oliver Relin not to include false stories in the book, but in spite of my repeated request, they did not adhere to it. We appreciate Greg’s efforts very much, but there is a difference between falsehood and truth. The false stories are a big slap in the faces of all those innocent Americans who honestly donate money to Greg, mainly due to his book and based on stories that are mostly false. You know, it is not fair. But the innocent readers of Three Cups of Tea do not know the facts.

You’ve noted some significant inaccuracies in Three Cups of Tea. What in your view is the most important information missing or mistaken in the book?

For a simple reader, the book is very interesting. But it is unfortunate that most of the beautiful stories in the book are false and fabricated. David Oliver Relin has proved himself to be a fine storyteller, but he is a dishonest story hunter. The fact is that Korphe School was started by a Japanese woman, Koyoko Endo, chief of the Himalayan Green Club, Japan, assisted by myself and Muhammad Ali Changezi. Greg Mortenson came to Korphe two years later. Secondly, it is also false that Haji Mehdi of Askole was against education. In fact, Haji received a donation for a school from some Dutch (perhaps) climbers, provided free land himself, constructed a two-room school building many years before Greg came to Askole. Later, Haji Mehdi again added a two-room school through a donation from another Japanese woman. Haji Mehdi was the first person who started education for children in all Braldo Valley. In early 2005, I submitted my objections on the printing of these issues in the book, and offered instead my suggestions. In his reply, Greg admitted that there are mistakes and falsehoods in the book, and he wanted to remove them, but David and his publisher did not agree.

How have these distortions affected Mortenson’s reputation in the region?

The existing situation is that within the local education community, people have asked Greg to apologize for these false things. If he does not, they will not continue working with Greg. In response to the demand of these communities, Greg decided to come to Skardu and talk to the people, but he did not come in the end. The most difficult position for Greg now is his recent association with the American Army in Afghanistan. Greg’s behavior is the talk of the town these days, and it is feared that soon people will stop supporting his projects. In case the situation becomes worse, then maybe some schools will suffer, due to unexpected dislocation of funds.

What was your specific role in Mortenson’s Central Asia Institute and why did you decide to resign from the position?

I was the Program Manager for Greg’s projects in Baltistan. I managed to establish Greg in Pakistan. He commits himself at different places of the book. Now, as of June 30 of last year, I have resigned from CAI on the demand of the school committees. Let us hope for a better situation.

You’ve mentioned Mortenson’s association with the U.S. Army in Afghanistan. How has this association harmed his reputation in general and in Baltistan in particular?

About his association with the American Army, you can consult the New York Times blogs of 15 August, 2010, where it is clearly mentioned that Greg is helping the U.S. Defense Department and national security department with the counterinsurgency in Afghanistan and tribal areas of Pakistan. He has also said that war is not the solution, but education, especially for girls, would be the ultimate solution to keep America safe. This linkage of his so called humanitarian work with the objectives of the American army and Pentagon is suspicious indeed.

In this section, Rakove pursues further the peculiar difficulties the Founders faced in clarifying the notion of representation on which the republic would rely going forward. As noted elsewhere, the core of this concern was the degree of accountability that could be expected from a new class of legislators, endowed as they were with expanded powers by the Constitution, but also ensuring the proper balance of accountability and independence: “The problem of representation was not to make legislators more accountable than they already were, but to find ways to dissipate the populist pressures of the people and improve the quality of lawmaking by reforming the character of the lawmakers” (218). Madison, we know, was very suspicious of the quality of leadership drawn from the state assemblies. Bound up in this suspicion was a worry that parochial local interests and prejudiced shortsightedness would creep into national debate, distorting policymaking and hindering the progress of effective government: “However much homage Americans paid to the ideal of the citizen who virtuously subordinated private interest to public good, few of them learned to prefer the duties of public life to the contentments of private life” (220) To this day, one of the plagues on our political happiness is our rising anguish that politicians are chiefly concerned with their own survival and in some cases are even profiting directly from their public service in inappropriate and profligate ways, if not during office, then certainly after.

    One of the features of our political culture, which only seemed to exacerbate the fear that self-interest would trump public interest, was and is the inherent tension between excellence in leadership and the perceived elitism of leaders. Americans, it seems, want to be led by capable, superlative characters, but also want to see in their leaders their own image. Excellence must be concealed, if only hinted at, and never flaunted. Federalist worries about the quality of legislators only confirm this paradox. In sketching out the recruitment parameters for members of the legislative branch, Madison knew the bar had been set deliberately low: “The Constitution required nothing more of legislators than relatively low requirements of age and citizenship—not even a religious test of the most innocuous kind” (227). The feat of electing a Congress—let alone a President—that matched the elegance and integrity of the written Constitution was a daunting one: “Federalist expectations could be realized only if the enlarged sphere of the extended republic worked to filter talent upward while the prestige and power of national office drew qualified candidates away from their law offices, plantations, and countinghouses” (227). One takes little comfort in the recognition that our present anxieties about the revolving door between Wall Street and Washington are not historical anomalies.

    On the subject of prosecuting breaches in accountability, Hamilton writes passionately on the Senate as the designated court for impeachment cases in Federalist 66: “So far as might concern the misbehavior of the executive in perverting the instructions or contravening the views of the Senate, we need not be apprehensive of the want of a disposition in that body to punish the abuse of their confidence or to vindicate their own authority. We may thus far count upon their pride, if not upon their virtue” (407). Hamilton is certainly on point in his trust that a politician’s pride will ensure his motivation to nitpick on issues of balance of powers. We need only witness the outcry in the Congress over President Obama’s minimal consultations in the decision to commit U.S. forces to enforcing an international no-fly zone in Libya. From both left and right, the objection was that the President had not paid due diligence, leaving Congressional egos bruised. Lucky for the lawyerly Commander in Chief, there is little ground for impeachable offense here, and yet, Hamilton’s point has never found a truer expression.

    In one of the most entertaining rebukes to the weak reading of his critics, Federalist 67 shows Hamilton at his grumpiest. The tone is that of a schoolmaster taking his students to task for a cursory reading of a clause in the Constitution interpreted by critics to give nominating power to the President for Senate vacancies, which is the province of state authorities, either governors or legislators depending on the state. A misinformed reader had conflated two separate and conditional clauses and ignored the exclusivity of the authority provided to the President, which limits appointments to “ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States whose appointments are not in the Constitution otherwise provided for” (409). In annoyed response, Hamilton undertakes a detailed explication of the section and offers some choice words of scorn for ungrammatical readings of this sort, concluding with a condescending apology on behalf of more attentive readers: “I hesitate not to submit it to the decision of any candid and honest adversary of the proposed government whether language can furnish epithets of too much asperity for so shameless and so prostitute an attempt to impose on the citizens of America” (411).

In this crucial chapter of Original Meanings, Rakove looks at the complex relationship between American self-perception as an independent republican state, a fresh experiment in democratic government, and its ancestral respect for English models, Parliament in particular. “Yet even after independence,” he notes, “Americans still regarded Parliament as a paradigmatic model of a representative assembly” (209). This observation reminds us that the revolutionary spirit engendered among the Founders did not preclude an educated and relatively detached appreciation for the lessons of history and the laboratory of European society from which the American hypothesis was launched. Too often today, the pieties of “American exceptionalism,” however unfounded and fantastical, dominate political discourse and, in one way or another, require policymakers to “reinvent the wheel” in the fields of health care, energy, immigration, and education. Looking to other countries and societies for answers – especially those of Europe, God forbid – is seen as anti-American and cast as downright blasphemy in some circles. This is gross hubris of the most unintelligent form, of course. It’s refreshing to learn that it wasn’t always thus among policymakers.

    Specifically, early American political thinkers looked to Parliament as a prototype mechanism for providing a healthy check on executive power: “In the traditional Whiggish theory to which the American revolutionaries subscribed, the great purpose of representation was to prevent the Crown and its subordinates from acting arbitrarily, without securing the consent of the people’s representatives” (209). The Constitution’s aim, therefore, was largely to get Congress functioning in the same way with respect to the Presidency, with the third branch, the judiciary putting both of the latter under constant legal scrutiny. To some extent, our system still functions in this regard, despite the gradual and seemingly inexorable creep of what some observers call “the imperial presidency” and a staggering growth in executive power in the post-World War II period through the present. The Founders’ admiration for Parliament was not unqualified, however: “Perhaps the [House of] Commons could still respond to ‘the feelings of the nation,’ but in its unreformed state, it was more likely to pursue the interests of the propertied elite” (209).

    Here, our contemporary system differs dramatically, the Senate functioning more like the “unreformed” House of Commons of 18th-century England. Because the Constitution was set up to give state legislatures elective power in populating the Senate, Madison and Hamilton placed more faith in the quality and accountability of the upper house. Today, we find the opposite scenario has obtained. The House of Representatives is commonly thought to be more responsive and accountable to public sentiment (and thus, more volatile), if only because its members are nearly constantly campaigning for reelection; the Senate, on the other hand, with its formidable six-year terms, is more entrenched in the vested interests of powerful (and long-lasting) elites.

    Madison expressed his confidence in Federalist 63 that “the Federal Senate will never be able to transform itself, by gradual usurpations, into an independent and aristocratic body” (389). Because a Senator’s professional fate was tied to his ability to maintain a salutary reporting relationship with the home state legislature, the Founders saw little risk in collusion with propertied interests, industry concerns, or moneyed elites that may attempt to purchase that Senator’s affection (as they are readily able to do today, thanks to the 17th amendment, adopted in 1813, which guarantees direct election by voters). Even as they looked to the English Parliament, the Founders were also contemplating the superior example they saw in the colonial assemblies, which “possessed a measure of both independence and accountability that sharply departed from English practice” (212).

    That our deliberative bodies still strive (however imperfectly) to fulfill the noble precedent set by their colonial counterparts gives a flavor of the troubling contradictions inherent in American political thought. It’s very difficult in the highly partisan environment of contemporary politics to maintain both independence and accountability, in the sense that independence is often held to account by way of removal from office as long as powerful forces can array to punish the trait. A truly honest lawmaker such as former Senator Russ Feingold of Wisconsin losing reelection to a rich nobody called Ron Johnson is a perfect example of this expectation run amok.

    In Federalist 62, Madison makes an interesting comment on the desired length and readability of laws: “It will be of little avail to the people that the laws are made by men of their own choice if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is today, can guess what it will be tomorrow” (381). Even brief examination of early legislation reveals that Madison’s hope was well founded. Laws were succinct and expressed in a very concrete, direct idiom. What he would have to say of the giant laws of recent memory – not just the Patient Protection and Affordable Care Act or the Dodd-Frank financial reform law (both at 800-plus pages), but also the 1000-page USA Patriot Act that in 2001 was rushed through floor debate and brought to a vote before members had a chance to read it – we can only imagine, but I doubt that he’d be favorably impressed.

Writing on the eve of the midterm elections, it’s difficult not to read in this installment of Original Meanings and Federalist essays the foretaste of our present discontent. Rakove notes that even as they embraced the intellectual labors of defending and explicating the merits of the still-unratified Constitution, both Madison and Hamilton harbored doubts “that the Convention had in fact solved the dilemma of divided sovereignty in a way that would give the Union the decided advantage over the states” (189). With a handful of congressional districts and senate elections likely to determine the political course of the next two years in Washington, we can see that the founders were not cynical in their concerns. Still, they hoped that “the outbreaks of factious behavior would be safely quarantined within the boundaries of individual states” (190). In the age of aggressive gerrymandering and the Senate’s filibuster, however, we know that’s just not the case.

    The “boundaries of individual states,” much like the boundaries of individual countries in the age of transnational threats and global profits, seem to matter little. And we humbly remember that even a half-million-vote strong plurality did not ensure Al Gore’s victory in 2000 against a statistically insignificant loss in Florida; four years later, a small margin in Ohio resulted in an Electoral College defeat for John Kerry. Individual states can and do matter in shifting the national political climate. The so-called Tea Party movement derives much of its popular enthusiasm and rhetorical arrogance from that very notion.

    Rakove underscores another important conflict in this discussion of “divided sovereignty”: “How would the states be protected in those areas where their authority and that of the Union overlapped, or where these two levels of government competed directly for the loyalties of the people” (193)? We needn’t look far for examples. Some governors have provoked admiration and ire by refusing to accept federal stimulus dollars attached to the American Recovery and Reinvestment Act of 2009. It remains to be seen how these decisions will be rewarded at the ballot box. Other states have filed lawsuits against the federal government for onerous new obligations associated with health care reform. Fed up with congressional gridlock on comprehensive immigration reform and the border patrol’s imperfect record, Arizona launched the most aggressive illegal immigration enforcement policy on record, prompting a lawsuit from the Department of Justice. Meanwhile, undocumented residents fled to Colorado – where the next-most aggressive policy reigns – by the thousands. And as always, California’s debates about gay marriage and the legalization of marijuana, by virtue of the state’s enormous population and status as the world’s seventh largest economy, find influence well beyond state lines. Not much of a “quarantine” indeed.

    One final note about taxation commands our attention. In a political climate where mainstream politicians debate the minutiae of fair taxes, flat taxes, progressive taxes, hidden taxes, and which ones should be cut and for whom, it’s useful to recall a particular worry shared by the Federalist writers: “[assuring] readers that the national government would rarely invoke its powers of direct taxation but rely instead on customs duties, which were commonly regarded as the most productive and least painful sources of revenue” (194). The current imbroglio concerning whether to extend the Bush-era tax cuts for all Americans or just 98 percent of Americans speaks to the historical narrowness of our political consciousness and ignores the basic inefficiency of income-based taxation, a scheme the founders could scarcely imagine occupying our political obsessions. Neither were they totally innocent of the possibilities inherent in the republican model to devolve toward plutocracy. In Federalist 60, Hamilton asks a poignant question regarding federal authority: “Will it lean in favor of the landed interest, or the moneyed interest, or the mercantile interest, or the manufacturing interest? Or, to speak in the fashionable language of the adversaries to the Constitution, will it court the elevation of the ‘wealthy and the well-born,’ to the exclusion and debasement of the rest of the society” (368)? Given the huge – and thanks to the Citizens United Supreme Court decision, of undisclosed origin – sums of money being channeled into this year’s political campaigns, Hamilton’s anxiety remains as relevant as ever.