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.

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).

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