In this episode of Constitutionally Speaking, Jay and Luke discuss Jay’s new book, The Price of Greatness: Alexander Hamilton, James Madison, and the Creation of American Oligarchy. Jay’s book focuses on why these two great founding fathers and onetime allies became political enemies. He argues that it was because while they agreed on what was wrong with the Articles of Confederation, they had vast views of what should come next. Hamilton’s financial system was an ingenious way to spur national development, but it violated Madison’s conception of how a republic should function.

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In this episode of Constitutionally Speaking, Jay and Luke examine the first session of the First Congress, which met from the spring through the fall of 1789. One of the most productive legislative assemblies in American history, this session submitted the Bill of Rights to the states, created the first national tax, established the major cabinet departments, and began to set up the judiciary. At this early stage of the government, James Madison emerged as the key agent in Congress. While there is a broad consensus in favor of Federalism at this point, there are early indications of the coming ideological divisions that would define the 1790s.

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In this episode of Constitutionally Speaking, Jay and Luke discuss the first federal election, held in 1788-1789. In many parts of the country, the contests were a proxy over whether the new Constitution was a good plan of government. This was especially the case in Virginia, where Governor Patrick Henry schemed to keep James Madison out of Congress by pitting him against James Monroe in an Anti-Federalist district. But Henry miscalculated. Madison won a comfortable victory, and nationwide the pro-Constitution forces triumphed. This landmark victory for the Federalists would set the stage for the policies of the new government.

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In this episode of Constitutionally Speaking, Jay and Luke finish their discussion of the ratification debates with a look at Virginia and New York. Two of the most important states in the union, the Old Dominion and the Empire State were hardly enthusiastic supporters of the Constitution. In Virginia, major political figures like Richard Henry Lee, George Mason, and Patrick Henry opposed it, while the delegates at the convention were closely divided. In New York, Governor George Clinton and his political allies staunchly opposed it, and the ratification convention was dominated by Anti-Federalists. Ultimately, James Madison outmatched Henry in the Virginia convention in June 1788, narrowly securing ratification, which put enough pressure on New York to accede to the new government in July.

Recommended Readings:
George Mason, “Objections to the Constitution”
Virginia Ratifying Convention, “Proposed Amendments to the Constitution
James Madison to Alexander Hamilton, July 20, 1788

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In this week’s episode of Constitutionally Speaking, Jay and Luke continue their discussion of ratification. First up, New Hampshire, the ninth state to ratify the Constitution, thereby making it the law of the land. But the Granite State only ratified after a substantial delay, so delegates could persuade their constituents to support it. North Carolina and Rhode Island held out until after the government already came into operation, with the latter state waiting until threat of extreme penalties from the federal government.

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In this episode of Constitutionally Speaking, Jay and Luke continue their review of the ratifying conventions. The Federalists faced a stiff challenge in Massachusetts, despite the fact that its delegates supported the Constitution at the Constitutional Convention. Samuel Adams, John Hancock, and Elbridge Gerry all voiced skepticism. Ultimately a compromise was introduced: The Bay State would ratify the Constitution, with a series of recommended amendments. This helped ease the concerns of moderate Anti-Federalists and was integral to the eventual adoption of the document. Jay and Luke also discuss ratification in Maryland and South Carolina, where the Federalists won easy victories.

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In this episode of Constitutionally Speaking, Jay and Luke begin their discussion of ratification. The early contests saw big victories for the Federalists, in Delaware, New Jersey, Georgia, Connecticut and Pennsylvania. With the exception of Pennsylvania, these were all small states with pressing needs for a stronger national government. Because the proposed Senate would protect their sovereignty, they ratified the Constitution quickly and eagerly. Pennsylvania, however, was a different story. Opposition to the Constitution in the west was strong, but slow to mobilize thanks to the “cram job” engineered by Philadelphia Federalists to ratify the Constitution before it had a full vetting. The Anti-Federalists responded by denouncing the ratifying convention after the fact, presaging the fierce battle to come in Massachusetts, New York, and Virginia.

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In this episode of Constitutionally Speaking, Jay and Luke finish their discussion of the Anti-Federalists by asking: What did they get right? The Bill of Rights is a great achievement, a kind of second governing charter adopted due to their opposition to the Constitution. More broadly, they advocated a vision of republican government, anchored to civic virtue and suspicious of outside, powerful elites, that would continue to shape the political debate for more than a century.

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In this episode of Constitutionally Speaking, Jay and Luke continue their discussion of the Anti-Federalists. One of the chief objections of the opponents of the Constitution was that it threatened to destroy republican government. The Anti-Federalists believed that the branches of the proposed system did not rely sufficiently on the people, but instead shifted power to the wealthy. Many of them believed that this was precisely the motivation of the Framers, to undo the Revolution of 1776 and replace it with a “higher toned” form of government. This Anti-Federal anxiety informed much of their efforts against the Constitution, and as Luke points out, also helps explain their advocacy for a Bill of Rights.

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In this week’s episode of Constitutionally Speaking, Jay and Luke continue their discussion of the Anti-Federalists. While many agreed that the powers of the central government had to be expanded, they generally worried that adopting the Constitution was hasty, imprudent, and an overreaction to the problems of the day. Many of them argued that the Constitution was too complex to be properly understood. Patrick Henry, chief among them, warned that a constitution must be “like a beacon,” a clear signal of public purpose, and that the proposed document, with its complicated system of checks and balances, was inscrutable. Many Anti-Federalists also warned that the Constitution was the product of an aristocratic plot to undermine civic virtue, defraud the people of their rights, and turn the republic into a commercial and military empire.

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In this episode of Constitutionally Speaking, Jay and Luke discuss the Anti-Federalists, the politicians and polemicists who opposed the Constitution during the ratification debate of 1787-1788. The Anti-Federalists had a lot of different grounds for objecting to the new Constitution, but they were still well within the mainstream of American political thought, and many of them would go on to have sterling political careers. That includes James Monroe, who opposed the Constitution at the Virginia Ratifying Convention in the summer of 1788 but would eventually become the nation’s fifth president.

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In this episode of Constitutionally Speaking, Jay and Luke discuss Alexander Hamilton’s theory of the executive branch. Hamilton was unique among the Founders for his brilliant insights into how a vigorous executive was essential to republican government. He believed that the executive branch should promote national economic development and diversification, helping to harmonize the various interests among society and ultimately protect it from foreign threats. The modern presidency of today is, in large part, a creation of Hamilton’s genius.

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In this episode, Jay and Luke discuss the importance of a written Constitution. There were multiple impulses that drove Americans to write down a governing instrument. Hailing from the Lockean liberal tradition, they saw government as a contract, which is better enforceable when it is written down. Additionally, the colonists had well-established precedents of formalizing governing institutions, from the Mayflower Compact through the colonial charters and up to the Articles of Confederation. Perhaps most important, since this was to be a republic, where the people ruled, the new government needed public buy-in that required a written document being presented to the citizenry.

Unlike state constitutions, the United States Constitution has changed very little over the decades, in part because it takes a super-majority in Congress and the states to ratify amendments. This has created some anti-republican tendencies in our system. First, there is the matter of “dead-hand control,” whereby the generation that had the greatest say over our government was the ratifying generation, which has been gone for centuries. Second, there is the challenge of working out constitutional controversies or ambiguities outside the amending process, where the super-majority requirements are too onerous to be practical. Here, the Supreme Court — the least democratic of the branches — has stepped into the gap, creating an enormous volume of common law, basically outside the boundaries of public rule.

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In this episode of Constitutionally Speaking, Jay and Luke take on the myth that our government is one of “co-equal branches.” In fact, the Founding Fathers created a Congress-centered government. It is the legislature that, if it willed it, could dominate the executive and the judiciary. The tricky part is the will of the legislature. By separating legislative authority among two chambers, and giving the president a veto that can only be overridden by a two-thirds majority, the Framers made it hard for the legislature to find the will to act.

The design of Congress thus reflects their mixed views about democracy — it is both essential to and dangerous for republican government. The Framers reckoned that, when a supermajority in Congress exists, the chances are good that it is a true reflection of the public interest. When a congressional majority is narrower, they feared it may be a self-interested faction that needs to checked by one of the other branches. So, Congress is the beast … that usually slumbers.

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In this week’s episode of Constitutionally Speaking, Jay and Luke discuss the Electoral College, the Rube Goldberg device the Founding Fathers created to select the president. The Electoral College was a compromise between multiple factions at the Convention—free and slave states, large and small states, federalists and anti-federalists. But unlike the Great Compromise, which apportioned the House and Senate differently, this one did not work very well. The Founders did not anticipate the rise of party politics, which necessitated a change in the Electoral College after the Election of 1800. In the Jacksonian Era, the rise of democratic politics obviated its original intentions. Today, the Electoral College remains as a way to apportion the strength of popular votes for president—which Luke and Jay both think is a better alternative than a nationwide popular vote.

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In this episode of Constitutionally Speaking, Jay and Luke discuss the role that slavery played at the Constitutional Convention. The delegates, as they note, were never prepared to abolish slavery in 1787, in no small part because southern states dominated the proceedings, and the northern nationalists depended upon their support to radically revise the Articles of Confederation. Moreover, slavery in 1787 was not nearly the dominant institution it would become after the invention of the Cotton Gin transformed the economics of the South.

At this point, many southerners were frankly embarrassed by it, and George Mason of Virginia denounces it in uncompromising terms at the Convention. The real battle over slavery occurs not over the infamous 3/5ths clause, but in debates over the transatlantic slave trade, at which point delegates like Rufus King and Gouverneur Morris denounce slavery in ways that anticipate the abolitionist movement that was still decades away.

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In this week’s episode of Constitutionally Speaking, Jay and Luke discuss opposition against the Virginia Plan at the Constitutional Convention. Speaking for the anti-nationalists, Robert Patterson of New Jersey proposed what came to be known as the “New Jersey Plan,” which would only have modified the Articles of Confederation, rather than replace it altogether. This alternative is quickly defeated, but it leads to the most contentious debate at the Convention: What power shall the small states retain in the new Congress? The small states insist upon guaranteed representation in the Congress, while nationalists from large states like James Madison and James Wilson argue that this makes no sense in a truly national government. For weeks on end, the debate grinds on, seemingly without end, until a compromise is finally produced. The “Great Compromise,” as it has become known, apportioned the House by population and the Senate equally for each state. While this mixed Congress, a little bit federal and a little bit national, is hard to defend on purely logical grounds, and no doubt has created problems over the years, the Constitution would never have come together without it.

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In this episode of Constitutionally Speaking, Jay and Luke discuss the first two weeks of the Constitutional Convention in Philadelphia, where the nationalists — led by James Madison and James Wilson — make remarkable headway in crafting a new government in late May and early June 1787. Their vision is one of a national union, centered around a bicameral legislature that, by and large, is only checked by the president and the courts. Importantly, they also call for a radical innovation — for the document to be ratified by state conventions chosen by the people. Yet even in these early days, there is a sticking point — namely, what to do about the Senate. A narrow majority favors apportioning Senate seats according to population, but the small states vehemently object, and by the middle of June they are ready with an alternative plan of government.

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In this week’s episode of Constitutionally Speaking, Jay and Luke begin their review of the Constitutional Convention, held in Philadelphia during the spring and summer of 1787. First up is a close look at the delegates themselves, the fascinating, brilliant, and sometimes irascible men who framed our government. On the federalist side, there are men like the soft-spoken yet resolute James Madison of Virginia, the staunch democrat James Wilson of Pennsylvania, and the South Carolina nationalist John Rutledge. On the other side, there are men like Luther Martin of Maryland, the boorish defender of states rights, James Patterson of New Jersey, the Irish-born defender of states rights, and Elbridge Gerry of Massachusetts, the unpredictable skeptic of democracy itself. Jay and Luke also highlight crucial procedural developments, like making George Washington the president of the Convention and lowering the threshold to enact a resolution.

Recommended Reading: National Archives, “Meet the Framers.”

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In this episode of Constitutionally Speaking, Jay and Luke discuss the views of Alexander Hamilton. Like James Madison, Hamilton was deeply concerned about the problem of factionalism, but his solutions were radically different. Reflecting his longstanding familiarity with world trade, Hamilton was extremely interested in the role public finance might play in unifying and strengthening the nation. From a constitutional perspective, Hamilton thought that the best way to harmonize the various forces in society was to imbue government with a “high tone,” elevating the best characters to public office, and then liberating them to do what the public interest required. In particular, he thought an energetic executive branch was essential to good government, and was eager to empower the president to distribute patronage. Madison, on the other hand, believed that such executive interference in legislative affairs was a corruption of republican government, a disagreement that contributed to the nasty political battles of the 1790s.

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