Mr. Franck, Meet Mr. Randolph

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My book, The
Politically Incorrect Guide to the Constitution
, explodes
a small academic cult's account of the federal Constitution. Thus,
when it appeared last summer, I knew that the West Coast Straussians,
also known as Jaffa's Minions or the Cult of Father Abraham, would
have a choice: they could either ignore my book or distort it.

In the
Winter 2007/2008 issue of the West Coast Straussians' house organ,
The Claremont Review of Books, one of their lesser lights
undertakes a "review" of The Politically Incorrect
Guide to the Constitution. I put the word "review"
in quotation marks because Matthew J. Franck's essay is merely a
string of unsupported falsehoods masquerading as scholarly appraisal,
with a bit of gratuitous insult thrown in for good measure.

Take this,
for example:

[T]he founders
understood the Constitution to be a compact of the American people
acting within their states, not a compact of the states as independent
peoples or political sovereigns. On behalf of limited self-government,
it divided authority between the states and the national government,
but it granted states no right of nullification or secession….

Alas, not only
is the idea of one entity's (in this case, the American people's)
compacting with itself nonsense, but the claim that the Constitution
was not ratified by thirteen sovereign states conflicts with the
plain facts of the matter. As does the idea that it excluded a right
of secession.

The Articles
of Confederation, the first federal constitution of the United States
— the one that was in effect when the Constitution was drafted and
ratified — said in their second article that "Each state retains
its sovereignty." Nothing had occurred between the Articles'
ratification in 1781 and the Constitution's ratification in 1788
to deprive the states of their sovereignty.

Where can
Franck have gotten a contrary idea? Likely from John Marshall's
opinion in McCulloch v. Maryland (1819), one of the most
outstandingly oily acts of judicial arrogation in American history.
On behalf of the Supreme Court, Marshall there "corrected"
"counsel for Maryland" (Philadelphia Convention Framer
Luther Martin) on the nature of the Union.

Martin, according
to Marshall, did not understand what had happened in the Philadelphia
Convention of 1787 which wrote the Constitution (where, as it happens,
Martin had played a significant role in defeating nationalists'
efforts to create a national instead of a federal government, and
where Marshall had not been a delegate) and the subsequent ratification
process. Despite Martin's claims that the Constitution was the act
of the thirteen states and granted the federal government only the
powers expressly delegated, it had been the act of one American
people, Marshall said, acting in thirteen parts (or something; Marshall's
description of the process is nonsensical).

Marshall's
McCulloch account was simply inaccurate, as Marshall perfectly
well knew.

Indeed,
in the Virginia Ratification Convention of 1788, the chief spokesman
for the advocates of ratifying the Constitution without first amending
it was Governor Edmund Randolph. As the convention drew to a close,
neither side was certain whether the advocates or the opponents
of immediate ratification would win.

Randolph,
also a Framer in Philadelphia the summer before, assured the people
of Virginia, as embodied by their delegates, that the Constitution's
opponents were far more worried about the Constitution than they
needed to be. The Constitution, he said, granted the federal government
only the powers it was "expressly delegated."

He read
Article I, section 8's grant of powers to Congress, then insisted
that the Constitution did not endanger the freedom of religion,
because no power over religion was "expressly" granted.
He repeated this argument in various forms numerous times.

Summing
up, Randolph — who for ten years had been republican Virginia's
first attorney general, and who soon would become the first attorney
general under the federal Constitution — said that the import of
ratification would be shaped by "the stile of the ratification."
He meant by the ratification instrument — the actual language of
the motion on which the convention voted when it voted for ratification.
He would include a statement that the new government was being given
only the powers "expressly delegated," and he would subjoin
a statement that the people could reclaim the powers they had granted
if those powers were "perverted to their oppression."

George
Nicholas of Albemarle County, who was understood to speak for James
Madison and who would soon become the first attorney general of
Kentucky, joined Randolph in explaining the significance of the
ratification instrument in this way. He also added the following:

If thirteen
individuals are about to make a contract, and one agrees to it,
but at the same time declares that he understands its meaning,
signification and intent to be, what the words of the contract
plainly and obviously denote; that it is not to be construed so
as to impose any supplementary condition upon him, and that he
is to be exonerated from it, whensoever any such imposition shall
be attempted — I ask whether in this case, these conditions on
which he assented to it, would not be binding on the other twelve?
In like manner these conditions will be binding on Congress. They
can exercise no power that is not expressly granted them.

Who were the
thirteen parties Nicholas had in mind? Remember, according to Franck,
"the founders understood the Constitution to be a compact of
the American people acting within their states, not a compact of
the states as independent peoples or political sovereigns."
There seem to be four possible explanations of the conflict between
Franck's assertion and the Randolph-Nicholas explanation of ratification's
significance: 1) that Franck has an imperfect command of English;
2) that Franck is unaware what "the founders" actually
thought, despite his implicit claim to expertise; 3) that Franck
dishonestly has mischaracterized what "the founders" thought;
and 4) that although entirely familiar with their arguments, Franck
has decided that Randolph and Nicholas were not representative of
"the founders."

In regard
to possibility #4, I note that Randolph and Nicholas were among
the five members appointed by the Virginia Ratification Convention
to draft an instrument of ratification. So were James Madison and
John Marshall. When the committee reported the instrument of ratification,
Randolph explained it as having precisely the import he had said
it would have when he first broached the idea. Nicholas agreed.
They were the only members of the committee who spoke. James Madison
and John Marshall said nothing to contradict them, thus implicitly
assenting to Randolph's and Nicholas's — that is, the committee's
— explanation.

Assurances
that only powers "expressly delegated" were being granted
to the new government were offered by leading Federalists in at
least four other states (South Carolina, New York, Massachusetts,
and Pennsylvania). Assurances that states could reclaim the powers
they were granting the federal government (that is, secede from
the Union) were made in at least two other states (New York and
Rhode Island).

Thus, assuming
that Franck is a competent scholar, choice #4 is not appropriate.
Let us gratuitously assume that he is competent. You must choose
then, dear reader, whether you prefer choice #1, choice #2, or choice
#3.

All of
this is made clear in The Politically Incorrect Guide to the
Constitution. (If you prefer a peer-reviewed, scholarly version,
try Kevin R. C. Gutzman, "Edmund Randolph and Virginia Constitutionalism,"
Review of Politics 66 (2004), 469–97, or Virginia's
American Revolution: From Dominion to Republic, 1776–1840

(Lanham, Maryland: Lexington Books, 2007), chapter 3.) When Franck
characterizes this portion of The Politically Incorrect Guide
to the Constitution as evidence that I dislike the Constitution,
then, he is engaged in academic quackery. What I dislike is not
the Constitution as explained by Randolph and Nicholas on behalf
of a 5-man committee including Madison and Marshall, but the scaffolding
of dishonesty his heroes (including Marshall and sometimes, alas,
Madison) have built around it and the truckling he and other such
"scholars" render to the usurpers.

There
is much more of that particular commodity in Matthew J. Franck's
"review," on which more anon.

February
11, 2008

Kevin
R. C. Gutzman, J.D., Ph.D. [send
him mail
], Associate Professor of History at Western Connecticut
State University, is the author of Virginia's
American Revolution: From Dominion to Republic, 1776–1840

(newly available in paperback) and The
Politically Incorrect Guide to the Constitution
. He
is also the co-author, with Thomas E. Woods, Jr., of Who
Killed the Constitution? The Fate of American Liberty from World
War I to George W. Bush
(forthcoming from Crown Forum on July
8, 2008).

Kevin
R. C. Gutzman Archives

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