Science & Arts

By Ezra Bowen

Of the making of books about the Constitution there is no end, especially in this bicentenary year, when thousands of people from the President to the most unassuming kindergarten teacher are trying to define, not always with impartial clarity, the document's conception and meaning. But for an authentic and authoritative version of what the Constitution is about and how it got that way, it is hard to beat two of the original works written on the subject: James Madison's Notes of Debates in the Federal Convention of 1787 and The Federalist, by Alexander Hamilton, Madison and John Jay. Both are currently in print and widely available in paperback editions. Separately and together they tell the intertwined story of Constitution and framers with the clear voice of the times, not the way present-day passions may choose to perceive it.

The Federalist, a series of essays churned out for New York newspapers under the group anonym "Publius," was frankly designed as propaganda and used to persuade doubters in state conventions to ratify the nascent Constitution. The pieces appeared at the rate of two to four a week. Hamilton, who hatched the idea, dashed off "Federalist No. 1" in October 1787 aboard a sloop on the Hudson and cranked out the 85th and last in May 1788, after Jay had fallen too sick to write and Madison had decamped for Virginia to fight the ratifying battle there. "Whilst the printer was putting into type parts of a number," Madison recalled, "the following parts were under the pen."

Despite such hip-shooting urgency, The Federalist proved so penetrating an explication of the Constitution that 50 years later Alexis de Tocqueville described it as a tour de force that "ought to be familiar to the statesmen of all countries." Almost 140 years after that, Historian Marvin Meyers, now retired from Brandeis University, called it the "most profound commentary on the original nature of the American regime, and the best single guide to the political mind of the founders."

! Taken in bulk, The Federalist can be heavy going for the lay reader, with its sometimes intricate marshaling of closely reasoned arguments. Madison rated it "admissible as a School book if any will be that goes so much into detail." But the brilliance of the best individual essays remains undiminished. Madison's own masterly "Federalist No. 10," for example, took issue with the received wisdom of his day that the Government would be threatened by the mutually hostile factions with which a sprawling America appeared dangerously overloaded. By their very number and variety, Madison argued, the factions would support an enduring centralized republic by canceling out one another, leaving a thermidor of balanced popular will. Critics wrote off these perceptions as nonsense: no large republic anywhere could ever survive, and as a matter of political chemistry, a government might be either central or federal but surely not both. Madison, of course, knew otherwise, yet he sternly reminded Congress it would have an unrelenting chore ahead. "The regulation of these various and interfering interests," he wrote, "forms the principal task of modern legislation."

In "Federalist No. 78," Hamilton showed that judicial review -- the right of the courts to declare a law unconstitutional -- lies inherent in the Constitution, although it is stated nowhere in either the basic document or any of the amendments. Hamilton also argued for broad construction of the Constitution rather than strict adherence to its limited instructions. For nearly two centuries, the U.S. bench has tended to live by Hamilton's reasoning, despite frequent protests from outside the courts and even from some judges that such interpretations can intrude dangerously into legislative terrain. Hamilton stated firmly that the judiciary would "always be the least dangerous ((branch)) to the political rights of the Constitution."

Madison's Notes provides an even more eclectic guide to the minds of the founders. Ranging in length from cursory phrases to more than a dozen pages, the daily entries touch on every session of the four-month convention. "I was not absent a single day," Madison later recalled, "nor more than a cassual fraction of an hour in any day." While his memory was still fresh, he organized and transcribed the scribbles for each day. Not released until 1840, four years after the author's death, they remain the most complete and responsible record of the convention's secret debates. In quiet, elegant if sometimes stilted 18th century prose, they bare the passions of every important contributor to the convention, as delegates wrestled with their own prejudices as well as those of colleagues to create a functional and lasting government. In places the impact of a passage or phrase is almost like that of Genesis, as when Madison writes that on May 29, 1787, "Mr. Randolph then opened the main business." This plain announcement brings onstage nothing more or less than the bedrock of the American system, a radical plan put forth by Virginia Governor Edmund Randolph for representative government of, by and for the people.

Later, with the proceedings stymied over congressional representation, Roger Sherman of Connecticut articulates a way out of the deadlock with his famous compromise, recommending proportional state representation for the House and single delegates (later changed to two) in the Senate. Madison, disliking anything but proportional representation for the Senate, remains stubborn on the issue and, as a faithful and balanced reporter, records his own scolding by Delaware's John Dickinson: "You see the consequence of pushing things too far." On the explosive matter of slavery, which many delegates deplored but sensed could not be addressed without blowing the convention apart, Sherman observes that the "abolition of Slavery seemed to be going on in the U.S. & that the good sense of the several States would probably by degrees compleat it."

Throughout Notes, this sense of patience, common-sense accommodation and compromise repeatedly rises from the pages, countering passions, defusing confrontations as most delegates strive to keep the compass set on the perceived task -- not to adjudicate the rights of man but to make the government work, save the union. In so doing all were wary of creating too strong and independent a President. "Why might not a Cataline or a Cromwell arise in this Country as well as in others," demands Pierce Butler of South Carolina. The answer: by limiting the President's power with a system of checks and balances, by keeping him under the law that governs all other citizens of the Republic, and by making him answerable, through vote or impeachment, to his employers, the people.

Yet as Notes reveals, in building fences around the presidency, delegates wished to avoid giving offense to Washington, who virtually all assumed would head whatever government they pasted together. "The first man put at the helm will be a good one," says Franklin, adding, "No body knows what sort may come afterwards."

Along with their priceless preservation of history, Madison's Notes sparkles with the wisecracks of men enduring a marathon convention. Franklin, having listened beyond even his own monumental patience to arguments favoring propertied interests, comments that "some of the greatest rogues he was ever acquainted with, were the richest rogues." George Mason, urging a minimum-age qualification of 25 for Congressmen, observes that "it had been said that Congress had proved a good school for our young men. It might be so for any thing he knew but if it were, he chose that they should bear the expence of their own education."

Although many scholars, jurists and politicians have since used Notes and The Federalist as grounds for their own viewpoints of the delegates' intentions in creating the document, the marrow-bone value of both books is in recounting what the framers actually did, and what they believed they had created when finished. In fact, Madison bluntly declared to Congress in 1796 that the framers' words or presumed thoughts at the convention "could never be regarded as the oracular guide in expounding the Constitution." Furthermore, as both The Federalist and Notes make clear, if ever a document has spoken for itself, the U.S. Constitution so speaks. Or, as James H. Hutson, chief of the manuscript division of the Library of Congress, put it last fall in the Texas Law Review, the proper place "to seek the intentions of the framers ((is)) in the words of the Constitution, as the framers themselves intended."