In Search of the Constitution; 101; In the Beginning

BILL MOYERS: IN SEARCH OF THE CONSTITUTION 101 IN THE BEGINNING

FORREST McDONALD:

If you ask anybody what the Constitution is, they say freedom of speech, freedom of the press, freedom of religion. That's what they ... that's what they think the Constitution is. The Constitution is a ... it's a legal document. It is a law governing government.

MICHAEL KAMMEN:

I'm not suggesting that we should have a cynical attitude towards the Constitution, or that prominent Americans who've played a critical role in our history have had a cynical attitude toward it: only that the Constitution is, in some respects, or under certain circumstances, a means to an end.

OLIVE TAYLOR::

I can, in 1987, appreciate the genius of document, because that document was changed based the dialectic of agitation, agitation, agitation. It does have a positive meaning for most black Americans.

BILL MOYERS:

It is two hundred years old. the upon And

NARRATOR:

One country, one constitution, one destiny.

BILL MOYERS:

We have revered and debated it.

NARRATOR:

Like the Bible, it ought to be read again and .again ...

NARRATOR:

(OVER) The people made the Constitution, and the people can unmake it.

BILL MOYERS:

We have honored and criticized it.

NARRATOR: My faith in the Constitution is whole:

it is complete ...

NARRATOR:

(OVER) The prejudices of the day are called constitutional law

BILL MOYERS:

We even fought a bloody Civil War over it.

NARRATOR:

(OVER) This covenant with death, this agreement with Hell, this refuge of lies

BILL MOYERS:

But we have lived with it. We are still living with it, today, still debating it, still IN SEARCH OF THE CONSTITUTION. (SIGNATURE MUSIC)

BILL MOYERS:

I'm Bill Moyers. Two hundred years ago, through the summer of 1787, fifty-five men met in convention in Independence Hall, Philadelphia ... the building behind me ... to work out a new plan of government for the united States. The union of thirteen states, actually, was not a union at all, but a creaky confederation, quarreling over commerce, debt and taxes, with different states at each other's throats. Some of the delegates didn't even want to be here. They were ... learned as well as practical men, and their debate was lively. They disagreed over the separation of power:

they argued about representation in Congress: they compromised on slavery, and on the commercial interests of individual states. They fought over Western lands. It was, after all, a hard thing to be done here, to found a government on reason and law, and organize it so it wouldn't be torn asunder by the spirit of faction or passion. When they had finished, on the seventeenth of September, they called this new plan the Constitution of the United States. It was the work of politics, and it was anything but perfect. But, in the words of George Washington, who presided over these sessions, a miracle had been wrought. In this broadcast, we'll visit Independence Hall to talk with three historians about that miracle, and what has come of it. From Cornell University, in Ithaca, New York, Michael Kammen. He won the Pulitzer Prize for History with A PEOPLE OF PARADOX. His latest book, on the Constitution, A MACHINE THAT WOULD GO OF ITSBLF, was selected by THB NEW YORK TIMES as one of the ten best works of non-fiction in 1986. From the University of Alabama, in Tuscaloosa, Forrest McDonald. His most recent book, NOVUS ORDO SECLORUM, THE INTELLECTUAL ORIGINS OF THE CONSTITUTION, was one of three finalists for the Pulitzer Prize in history, last year. This year, the National Endowment for the Humanities selected him to be its Jefferson Lecturer, the nation's highest honor in the humanities. From Howard university, in Washington, D.C., Olive Taylor. Her specialty as a scholar is Afro-American 3 history prior to the Civil War. This year, she is writing a book about slavery and John Marshall, Chief Justice in the formative years of the Republic. Into this room, two centuries ago, came delegates to the federal convention. With George Washington in the presiding chair, and the delegates seated two, three or more around the desks before him, they did their work. It was hot. For the sake of secrecy, they kept the doors closed. And, often, the windows. All summer, they argued, voted, and reconsidered. But, by September, they had produced a document they would send forth to the states and the people.

BILL MOYERS:

Two hundred years, one hundred Congresses, forty Presidents, and eight wars later, the Constitution they created is still working. We'll look back on the men and events, here, with our three historians.

BILL MOYERS:

Forrest McDonald's chief interests are the intellectual, political and economic roots of the very human men who drafted our constitution.

BILL MOYERS:

Can you imagine those men sitting here those long, hot summer days? FORREST

FORREST McDONALD:

Hmm. It's difficult, and I'll tell you why. Because these were not small men ... You know, in ... in the 18th century, people ate a lot. This was a bountiful country ... and ... it was the norm, in America, to be fat; very, very fat. John Adams weighed something like two hundred and seventy-five, two hundred and eighty pounds, at five-six. This ... this is a social norm. okay? Washington didn't look like that. Washington was six two, or thereabouts, big, broad shoulders, slender hips ... looting every inch the general, at all times. But, normally, they were all in the ... you know, five ... six to five-eight range ... and very obese. Now ... you put that many of that obese people in a room this size ... with the doors closed ... and the windows closed, and in a hot summer ...

BILL MOYERS:

And they were sweating.

FORREST McDONALD:

They were pouring with sweat. Founding Fathers don't sweat, but these ... (LAUGHTER)

FORREST McDONALD:

These founding fathers did.

BILL MOYERS:

There's that famous picture of them, and they look so stately, so august, so ...

FORREST McDONALD:

Air-conditioned.

BILL MOYERS:

Yes. Cool and composed ...

FORREST McDONALD:

Right.

BILL MOYERS:

... you might say. But they must not have ... looted that way the day they put their signatures on that parchment.

FORREST McDONALD:

Well, by that time, it had cooled off. They... they...

BILL MOYERS:

September. Yes. That's right.

FORREST McDONALD:

The ... the weather ... took some peculiar turns. At one point, in the early going, the first month, when they were really deadlocked over the basis of representation ... the ... probably, the ... most corpulent of all the delegates was Gunning Bedford Junior of Delaware. And, at one point ... he ... the ... I think, really, just the heat got to him. The heat compounding the ... the ... the debate, the heat of the debate, and he shocked the heck out of the delegates by saying, Look, if you fellows from the big states won't compromise and give us equal representation ... in at least one house of the ... of the ... national legislature ... the small states will find some foreign power to lead them by the hand. Take that Kwoh. This is not the kind of thing you say. And it caused great consternation, and a ... the whole ... next two days was taken up with people being upset, because Bedford ... had got so upset as to make such a ... such a remark as that.

BILL MOYERS:

Was there a particular day, during the debates that went on here, that you would like to have been a fly on the wall?

FORREST McDONALD:

Oh, sure ... An obvious date. June ... June ... the sixteenth, when Hamilton delivered a six-hour speech.

BILL MOYERS:

Six hours?

FORREST McDONALD:

Six hours. And it was absolutely awesome; the most dazzling display of oratorical power and political depth and understanding of human nature and ... just .wonderful. And then he ... proposed the constitution .as much too high-toned for the ... rest of the delegates, and ... a consequence .as, as William Samuel Johnson recorded in his diary, the next day, the gentleman from New York is applauded by everybody and supported by none. That's the one speech I would love to have heard ... And ...

BILL MOYERS:

He is calling for a strong central government?

FORREST McDONALD:

Yes ... but a limited central government. I mean, that's not part of his image, but he really did believe in limited power. But ... he felt ... all the tendencies in American government were centrifugal; that he thought the States were going to swallow up the Federal authority ... He thought the country .as very nearly ungovernable. And, therefore, he was pushing to concentrate power as much as possible. Because it was ... going to go the opposite direction. In that direction, in the interest of stability, he preferred a monarchy ...

BILL MOYERS:

A monarchy. So, the rumors that were circulated, often, in Philadelphia, that they were talking of a monarchy, here, were not ill-founded.

FORREST McDONALD:

Not entirely ill-founded. He's the only person in the convention who actually said ... that he would prefer a government directly modeled after the British government of limited monarchy. But he knew that you couldn't get a ... a monarchy in this country; the people wouldn't take it. So, the next 7 best thing would be to have a President elected for life.

BILL MOYERS:

Hmm.

FORREST McDONALD:

Right? He also .anted a Senate elected for life. And then, he wanted the House elected by very popular vote, to have a democratic branch. So, you'd have a democratic branch, an aristocratic branch, and ... a ... a monarchical branch, essentially.

BILL MOYERS:

Didn't the men in this room have a stake ... personal stake ... in the outcome? By that, I mean, they were men of property. They were men of the ruling classes; men of the upper classes, in those days. And they so contrived this Constitution that it would put a brake on democracy, on popular sentiment, on ... the ... the rule of the ... masses out there.

FORREST McDONALD:

Oh, clearly that. I mean, clearly, they're not democrats.

BILL MOYERS:

Yeah.

FORREST McDONALD:

The convention opens, and Elbridge Gerry, of Massachusetts, stands up and says, The evils we ~experience arise from excess of democracy. And Edmund Randolph, who makes the original proposal for the resolutions which, you know, formed the basis of debate, agrees that democracy is the problem. And ... again and again and again, they all say that ï And the democracy was making a tax on property. But that's ... a bit of a different thing from being self-interested in a narrow sense ... Some were. Some ... clearly profited from what they did. But ... most of the ...I mean, you... you cannot find a correlation, and I've studied it ... to a considerable extent ... you cannot find a correlation between the amounts and kinds of property they had, and the way they behaved.

BILL MOYERS:

Were men ... were men like Hamilton, were the men in this room ... intellectual giants?

FORREST McDONALD:

Yeah. To get into college, in those days, you had to be absolutely fluent in Latin, you had to be absolutely fluent in Greek, you had to be able to read the ... well, for Columbia, which is where ... it was then King's College, where ... where Hamilton himself ... went to college ... you had to take the ... first ... ten books ... I think I'm quoting this rightly ... a very long portion, anyway, of the ... of the New Testament, in Greek, and read it in Latin. Right? And thirty odd ... thirty-five ... thirty-four, thirty-five of these people had been college-educated. And those who were not college-educated were ... most of them were ... pretty well learned. And the combined experience in government they'd had, and in the military that they'd had ... so, they're bringing in ... highly honed minds, but minds tempered by experience ... When ...

BILL MOYERS:

Is this why you ... said that ... the days of the Constitution were a golden age, the likes of which we'll never see again?

FORREST McDONALD:

That's exactly why.

BILL MOYERS:

They knew so much ... and had so much experience? 9

FORREST McDONALD:

They knew so much and had so much experience, but ... the age couldn't be repeated, also, for ... just because of the ... the ... peculiar concatenation of circumstance. It was ... almost as if you were running a laboratory experiment with a set of conditions that existed and couldn't be repeated. You know. And they were products of that ... of that time. And, also, we were lucky.

BILL MOYERS:

Lucky?

FORREST McDONALD:

Yeah.

BILL MOYERS:

What do you mean?

FORREST McDONALD:

... It's very easy, sitting here in 1987, to think ... well, there's a kind of inevitability about it. The inevitability of the coming of independence, the inevitability of the breakdown of the Articles of Confederation, the inevitability of the .an on the white horse coming in and ... and ... rescuing the nation, in this room, and things like that. But there were no guarantees at all. We came so close to not making it.

BILL MOYERS:

Many states did not want a convention.

FORREST McDONALD:

Most ... most states didn't. Nobody was doing anything. Then ... two things happened simultaneously, late in January. One was the news of Shay's Rebellion. All right?

BILL MOYERS:

The farmers revolting ...

FORREST McDONALD:

Right.

BILL MOYERS:

... in Massachusetts.

FORREST McDONALD:

Farmers rising up and ... and ... the fascinating thing about that is that it was widely misreported, and deliberately misreported.

BILL MOYERS:

In those days, too?

FORREST McDONALD:

Oh, yeah.

BILL MOYERS:

You mean, the media ... (LAUGHTER)

FORREST McDONALD:

... Well, the .media didn't do it, actually ... There was a man named General Henry Knox, who was even fatter than ... than ... John Adams, by the way. ... Henry Knox was Superintendent of War. He had been an artillery general under Washington, a very good one ... an ... ardent nationalist. He had ... he was still acting as Superintendent of War. He had agents out in the field, hanging around with the Shaysites, the ... the rebels ... and he was daily, al.ost daily, informed of what was going on. And what was going on was a tax revolt ... Knox was kind of disappointed that it wasn't a real rebellion, because a real rebellion would have shocked people into ...maybe into ... creating a more viable national authority. And he thought about it, and he said, ."Hmm." And he sat down, and he wrote himself a letter, out of the whole cloth, and he wrote to Washington, and he said ... "There are twelve to fifteen l thousand ... desperate and unprincipled men under arms." And he went on to describe what they were going to do:

They were well-drilled~ they were well-financed~ they were going to march on Boston~ rob the bank~ they were going to go down to Rhode Island, pick up all those crazy dissidents in Rhode Island ... and then, march ... all the way to Georgia ... spreading ... divvying up property ... common division of property ... and spreading blood and anarchy the ... length and breadth of the land. Washington got the letter. And he said, ∑Oh, my God.∑ I mean, you know ... "It's Knox who's telling me~ I'm going to trust Knox." And Knox ... I mean, Washington wrote to everybody, right away, and within ... two, three ... well ... within two weeks ... phwoo.1 It was all over the country~ that's what was happening in Massachusetts ï That scared the heck out of people. Almost simultaneously, the Continental congress got the news from the State of New York about a ... a proposed amendment, that had been in circulation for four years, now, which would have given Congress an independent source of revenue in the form of import duties. Twelve states had ratified. All thirteen have to, under the Articles, had to ratify to make it ... to ... to pass it. And the Legislature of New York said flat no ... And they got the news of both of these at once. In despair, at the end of their wits, Congress said, "Okay, we've got to have this convention."

BILL MOYERS:

It was a close call.

FORREST McDONALD:

A very close call.

BILL MOYERS:

Without a little chicanery here, and a little intrigue there, and a little resoluteness there, and ...

FORREST McDONALD:

If you put it in a little bit broader perspective ... postpone it a year or two. All right? Make it ... 1789~ make it 1790. Instead of 1787. What have you got? You've got the French Revolution. The French Revolution just exploding all over the world. And this is really a revolution. This is wild-eyed, democratic, heads rolling. Lots of heads rolling. An international war for twenty-five years. Americans got so involved in whether you're going to be pro- or anti-French, in the French Revolution, that it really was terribly decisive, and almost tore the country asunder. Supposing we hadn't had the Constitution yet ... Half the country would have gone one way, half the country would have gone the other way, and would have ended up being a bunch of banana republics.

BILL MOYERS:

What about their value systems, Forrest? What ... was there an animating value system at work in this room? They did, after all, compromise with slavery:

they looked the other way.

FORREST McDONALD:

I suppose that the ... the ... most important thing was that such liberty as we were going to have ... liberty is ... of primary importance. Liberty is an ever-present concern ... But ... You're going to have a union ... it's ... you ... you can't protect the ... the liberties of Americans without a ... a union. All right? That's the only way it can be done. You're going to have a union~ you've got to face reality. I mean, these are realistic people. Without the assistance of Georgia and South Carolina ... and North Carolina ... the thing couldn't have been pulled off. As a matter of fact, it's ... quite possible that the most important delegates in the convention were those from South Carolina. It got terribly involved, because ... South Carolina had to kind of play a role ... in here. See, to get ... they ... they needed North Carolina's support. North Carolina was a very populous state, but a very poor state. All right? But it had a goodly number of slaves. Now, what North Carolina was interested in was getting a system whereby, somehow, ... they would count slaves, for purposes of ... representation ... but not count them for purposes of taxation ... And, of course, the result was the famous Three-Fifths Compromise.

BILL MOYERS:

(OVER) Right.

FORREST McDONALD:

... Which applied to both direct taxation and to ... and to representation. That is to say, you took a census ... free people counted ... one for one, and slaves counted three-fifths of a person, which meant that the south ... the North Carolinians were getting low taxes, and maximum ... minimum taxation and maximum representation. Okay. They ... got into cahoots with ... with Rutledge and Company, from South Carolina; they couldn't pull this off. I mean, the Northerners were all screaming and hollering. You can't ... if you're going to represent... going to count your slaves, well, you know, we're going to count our mules ... if that's ... if you're treating them as property, and ... you know. So, the South Carolinians took the position, a very hard-line position, RNO, we absolutely insist slaves have got to be counted one-for-one." Now, if they took that adamant position, you see, then, other Southerners, particularly the North Carolinians, could say, "No," you know, -We're...we're the voice of moderation here. I mean, we're...we're only wanting three-fifths." And they got it through on that kind of basis.

BILL MOYERS:

You mean, the Founding Fathers, these Olympian figures, really knew how to play the game?

FORREST McDONALD:

They knew how to play the game. Oh, they could teach these fellows in Washington a thing or two, I guarantee you.

BILL MOYERS:

If you could have sneaked in here, two hundred years ago, and overheard what they were talking about in regard to the judiciary, and original intent, .what do you think you would have heard?

FORREST McDONALD:Very little. Everybody knew that the judiciary as the weakest branch of all, utterly dependent upon the other branches couldn't defend its ... had neither the power of the purse, nor the power of the sword.

BILL MOYERS:

Hamilton's favorite.

FORREST McDONALD:

(OVER) And ... and ... don't ... you don't need to worry about the judiciary. And they didn't worry much about it. They only debated it ... you know, they would say, "Okay, there's got to be a judiciary." They only debated more than ... ten minutes ... twice. And once was in ... in ... in the context ... it was in August...in the context of...a motion by Madison to tie the Executive and the Judiciary together, to give them the power to review acts of Congress. And that .as about it. It was a very brief discussion. The other discussion was on August 27th. And August 27th .as the day on which the fewest members were present. They barely had a quorum to do business. Bare majorities of the delegations of seven states, which .as minimum quorum, were there ... on August 27th.

BILL MOYERS:

And that's the day they discussed ...

FORREST McDONALD:

And that's the day they really did most of the formation of the federal judiciary. Or most of the agreeing about it. But ... see ... there was disagreement on that day, a good deal of disagreement. They .worked out some of the details ... agreed to ... but ... but they were ... were ... sort of polar-opposite camps. So, when Governor Morris ... okay ... Governor Morris was a brilliant pensman - his correspondence is just wonderful to read. I mean, he just wrote so beautifully. And everybody knew he was a great pensman. And, so, as ... as in the case with Jefferson, eleven years earlier ... they turned it, really, over to the one guy. And, so, Governor Morris wrote the Constitution from the resolutions of the convention. And, as he wrote to somebody, many years later, that ... it was a piece of cake: it was easy enough to do in regard to most of the clauses. But when it came to the Judiciary ... men had supported their positions with such elegant learning, and such contradictory ... points of view, he said, "so that I couched it so that it could be interpreted my way." Right? So that it .would reflect my notions of what the courts should be. But sufficiently ambiguous so that ... that nobody .would ... have their ... their self-esteem injured, and nobody would get their hackles up and ... you know.

BILL MOYERS:

You're saying that the new order of the ages was shaped, in this room, by ... some very human men?

FORREST McDONALD:

Very, very human men.

BILL MOYERS:

Clever. Learned. Slippery?

FORREST McDONALD:

And ... possessed of a very deep understanding of the nature of the human animal... You know despite all the crazy things that have happened in the 20th century, and all the proof to the contrary, there's still a kind of a wishy-washy tendency to assume that most people are good, and most people would be good if they had half a chance, and that kind of stuff. They started with the assumption that, sure, they're good people, but most people are not; man is a fallen creature. All right? Men are not angels. As Madison said, If men were angels, no government would be necessary. All right? And you assume that they're not going to be angels, and ... they didn't behave as angels themselves. They had a practical task to ... to pull off ...

BILL MOYERS:

Which .as?

FORREST McDONALD:

Which .as to protect liberty by limiting government ... That's essentially it.

BILL MOYERS:

Today, we have a huge government with unlimited powers. Huge armies. Huge intelligence apparatus. Huge social bureaucracies.

FORREST McDONALD:

Yes, we do.

BILL MOYERS:

How far are we from their sense of things?

FORREST McDONALD:

As far as it's possible to be. Light-years away. Government in the United States, Bill, is intrusive. It's every place. It's in everybody's lives all the time. But it has lost the capacity to govern. Government ... you know, as to the Founding Fathers, .as designed to protect people in their life, liberty, property. Government, today, has lost the capacity to protect in all three. Are you safe walking down the streets of Ne. York? You're safe in some streets in Ne. York. Are you safe in Philadelphia? You're safe in some streets in Philadelphia. But it's also ... look at the Preamble. You know ...we establish justice and ensure domestic tranquility and provide for the common defense and promote the general welfare. Is this government capable of doing that? I submit that it's very nearly lost the capacity to.

BILL MOYERS:

We have a different society, still, don't you think, governed, essentially, by that document that was drawn up here?

FORREST McDONALD:

Less and less. Less and less. I mean, it ... the ... the concept of limited government has gone by the boards. Limited in two senses, which I think were crucial to them, and, I think, are crucial today. Limited in a sense of ... it's got to be by law. This is ... these are the things you can do. But limited ... in the additional sense ... that there are some things which are outside the capacity of the federal government to do well. Because the country's too diverse. And there are some things which are outside ... properly outside the province of government at all, which communities can do better, families can do better, individuals can do better. But government has ... has transgressed the lines ... has crossed the lines.

BILL MOYERS:

Perhaps we need another ... federal convention.

FORREST McDONALD:

No bloody way.

FORREST McDONALD:

There is so much incompetence in this country today ... that ... they'd make a horrible botch of things. I'll tell you what they'd do, and ... and, you know, there are people around, talking of ... of calling a new ...

BILL MOYERS: (OVER) Sure.

FORREST McDONALD:

... constitutional convention. And some people very serious about it. And they're talking in terms of making it efficient. Now ... given the fact that government is as big as it is today, and given the fact that precedents have been laid for its being as intrusive as it is today, its only saving virtue is its incompetence. All right? I mean, you make it efficient, and they'll come and get you man. And that's for real. SIGNATURE MUSIC.

BILL MOYERS:

Michael Kammen has traced America's changing attitudes toward the Constitution, and the pilgrimage of the document itself.

BILL MOYERS:

What happened, when they finished here, with the actual document? I mean, someone had to take it away and do something with it. Where ... where did they put it? MICHAEL

MICHAEL KAMMEN:

Well ... eventually ... once the new government was established, they turned it over to the Secretary of State, and decided that he would be the keeper of the key documents. But ... and ... and, for most of the 19th century, it was literally in storage. It was not on display in a national archives, because we didn't have a national archives until 1935. So, it was in a file ... literally, in a file drawer, and it had a ... kind of bizarre history ... It underwent a physical odyssey, during the course of the 19th century ...

BILL MOYERS:

What happened to it?

MICHAEL KAMMEN:

Well, during the War of 1812, when the British were about to invade Washington, a few people thought, "Gee, we've got some sacred national documents, such as 20 .. the Declaration of Independence and the Constitution, and we don't want them to get burned ... should there be a fire. So, they were put in heavy, coarse, linen sacks, as they were referred to, taken across the Potomac River, and, eventually, made their way to a site about thirty-five miles away from Washington and Georgetown, where they were hidden under the auspices of a clergyman, in an unoccupied cottage. And, eventually, they were brought back to Washington, but no one quite knew where to keep them. They lived, for a while, in an orphanage. A home for ... for ...

BILL MOYERS:

Literally?

MICHAEL KAMMEN:

Yes. Literally. During the middle of the 19th century. And not until the early 20th century did a sense of national pride, and also, a concern for the possible physical deterioration of both the Constitution, the Bill of Rights, and ... the Declaration of Independence, also, for that matter ... result in ... constructing a special, as it was called, shrine, to display them at the Library of Congress. And there they remained, on public view, through the 1920's and 30's, until, eventually ... another shrine, with superior, modern technology, to preserve them, was put in place at the National Archives. In the meanwhile, during World War II, they were locked up at Fort Knox.

BILL MOYERS:

Almost like the Ark of the Covenant moving around ...

MICHAEL KAMMEN:

Exactly. Exactly.

BILL MOYERS:

... one place to another.

MICHAEL KAMMEN:

And, symbolically; that's very appropriate, because that's the way the Constitution has often been regarded.

BILL MOYERS:

When did that happen? You used the word shrine, you used the word sacred. Did ... did a cult ... of the Constitution grow up? Did it become a fetish worship?

MICHAEL KAMMEN:

It did, indeed ... It came to be regarded as, essentially, sacred, and, therefore, frozen, and, therefore, in the long-run, taken for granted, which is how we got, by the end of the 19th century, the notion of a machine that would go of itself:

the notion of this thing as a kind of perpetual-motion machine that required no ... no care, no winding, no ... you know, ten thousand- mile check-ups, and so on.

BILL MOYERS:

We have been ambivalent about it, haven't we?

MICHAEL KAMMEN:

We've been very ambivalent about it.

BILL MOYERS:

What was it that Carl Sandburg, who admired Lincoln, said of Lincoln and the Constitution? That Lincoln would say yes to the Constitution when a help, and no to the Constitution when a hindrance.

MICHAEL KAMMEN:

Yes. That's true, and ... and I would say, in response, Amen, or thank God ... because ... what ... what that, essentially means is that we have had a living 22 constitution ... If we regard the ... the period of the American civil War as the single greatest crisis ...

BILL MOYERS:

Right.

MICHAEL KAMMEN::

... that we have faced as a people ... and we think back to ... how Americans coped with that crisis, we'd find, in the discourse, the public discourse of the day, the key phrase that was bandied back and forth was, -IS the Constitution adequate to a crisis like this?- And, rhetorically, statesmen asked, -Do we have an adequate constitution?- The answer, in retrospect, is yes:

the Constitution turned out to be adequate, but only because of its being regarded in a flexible manner, by Abraham Lincoln, and others who did what they had to do in order to save the Union. So ... while I'm not suggesting that we should have a cynical attitude towards the Constitution, or that prominent Americans who've played a critical role in our history have had a cynical attitude toward it, only that the Constitution is, in some respects, or in certain ... under certain circumstances, a means to an end:

namely, the ... the ... preservation of individual rights, the preservation of our security ... the ...ï preservation of our cohesion as a nation. Moyers, I remember, in your book, there's this wonderful scene of the bakers, parading, here in Philadelphia, one year after the Constitution was signed here, during the ratification process, and they had a sign up there. Do you remember what it said?

MICHAEL KAMMEN::

Yeah.

BILL MOYERS:

Go ahead.

MICHAEL KAMMEN::

Well, there ... (LAUGHS) Well, tell that story.

BILL MOYERS:

It said, -May the Federal Government revive our trade."

MICHAEL KAMMEN::

Trade had been very depressed through the middle years of the 1780's. And one of the fascinating things that occurred ... in the American mind, at that time, was that, somehow, a new political system would improve ... the state of the economy. And, miraculously, there is a sense in which they were right ... that ... general prosperity did follow the events that took place here in l787 ... flourished throughout the 1790's, and there was a general improvement in the ïï in the American standard of living. And, therefore, throughout the first half of the 19th century, especially, American statesmen, orators, clergymen, various sorts of people, proclaimed that there was a clear linkage between our political system and our prosperity. And the phrase "peace and plenty" recurs over and over and over again ... in their ... in their writings and their speeches.

BILL MOYERS:

NOW, how do you explain the fact that the Declaration of Independence seized the American imagination much more swiftly and significantly than the signing of the Constitution? RAHMBN:

One crucial ingredient was the fact ... involves the fact that the Constitutional Convention met in secret. No reporters were present. In fact, no one 24 but the delegates were permitted to be present. Moreover, the delegates took a kind of oath of secrecy, or made a gentlemen's agreement, among themselves, that they would not leak information to friends or to the press. Moreover, they made an agreement that they would not publish journals or notes of what took place here during that long summer of 1787. That goes a long way toward explaining why Americans knew so little about the compromises and ... and the ... the ... the horse-trading that went on in this room, and the very ... and ... and how the document came to unfold the way it did.

BILL MOYERS:

Was secrecy essential to the striking of the bargains that ...

MICHAEL KAMMEN:

(OVER) Yes.

BILL MOYERS:

... were made here?

MICHAEL KAMMEN:

Yeah. Yeah.

BILL MOYERS:

It's hard to conceive of them coming out of here and answering questions to some ... group of reporters with a microphone, isn't it?

MICHAEL KAMMEN:

That's right. But, interestingly enough, to the best of my knowledge, contemporaries accepted that ... There was no ... there was no great protest or hue and cry. There was a lot of curiosity about what was going on in here. But I haven't encountered very much in the way of protest or ... a sense of concern that something conspiratorial was going on here.

BILL MOYERS:

But why the agreement, the gentlemen's 25 agreement, not to publish what happened here for fifty years?

MICHAEL KAMMEN:

... James Madison talks very explicitly about that in letters that he wrote during the late teens and early 1820's, when various friends ... pleaded with him to publish his notes on the Convention. And he said, the government that resulted from this convention has an integrity of its own, has a legitimacy of its own, and if all those compromises, and all of the alternative possibilities that we considered ... are aired to the public, it will ... in effect ... result in undermining the legitimacy, the confidence that the public has in that government. And the important thing, literally, was the product and not the process, so far as Madison was concerned.

BILL MOYERS:

If you could summon up, from the past of two hundred years ago, anyone of those men who had been in this room, do you have on you know you would call forth?

MICHAEL KAMMEN:

Sure. James Madison.

BILL MOYERS:

Why?

MICHAEL KAMMEN:

Because ... he ... he gave the greatest amount of thought ... to the problems that ... our government faced, and the nation faced under the inadequacies of the Articles of Confederation. He did an immense amount of historical research, looking at republican governments, in antiquity, in order to find out what had made them successful, what had caused them to fail~ in order to see what lessons we could derive from them ... I ... I think I would love to privilege ... Madison ... James Madison ... to give him the opportunity to come back and ... that the thing is still working.

BILL MOYERS:

I'll tell you what I would ask ... any one of the Founders I summoned up, and that is-Could you possibly fathom what's happened to the modern American presidency? Did you fear a monarchy when you met here? What were your thoughts about the powers of the presidency?" And I'd like to hear what they said. Do you think they imagined a presidency that commands an army as great as we have, that commands the intelligence bureaus of the FBI, the CIA, the NSA ... the NSC? A presidency whose responsibilities girdle the globe?

MICHAEL KAMMEN:

No. They didn't. And we often lose sight of the fact that they spent a great deal of time, in this room agonizing over what the powers of the Presidency should be. They knew they wanted a stronger Executive than they had had; they knew they wanted to achieve energy and stability ... the ... the catch-phrase that they used over and over again. On the other hand, they ... they assumed that they would live in splendid isolation ... three thousand miles remote from Europe, with a magnificent ocean separating them, and, therefore, they could not imagine our coming to be a world power in the way that we have in the 20th century, and particularly, in the decades since the end of World War II.

And, therefore, the huge military apparatus that is commanded by the President is one of the things that would surprise them the most.

BILL MOYERS:

Is it possible for us to get back into the spirit of this room, the mentality of these men, and pierce what they really were about?

MICHAEL KAMMEN:

Oh, sure. I think we can do that. But I would ... I would want to draw a distinction between doing that and doing what the Attorney General refers to as ... "achieving a jurisprudence of original intention." It's crucial to make two ... two points ... that relate ... to the ongoing viability of this Constitution. The first is that the polity, as we know it, is different from the polity as they knew it.

BILL MOYERS:

And by "polity" you mean?

MICHAEL KAMMEN:

By ... by polity, I mean, the people who are included as participants in the political process. And, today, that includes females, it includes Afro-Americans, it includes people start ... beginning at the age of eighteen, rather than people beginning at the age of twenty-one. The polity has been redefined, and that requires certain adaptations and changes on our part. Secondly, and this is a point that ... Attorney General Meese has totally lost sight of:

In a speech that he gave in February of 1986, he said, "Technology has changed in the two hundred years since the Founders met in Philadelphia, but politics, fundamentally, has not changed,∑ he said. And I find that an outrageous misreading of American history. Because, when you think about ... not only the change in the very nature of the polity itself, as I've just described it, but when you think about the role of 28 political parties, which are not provided for in the Constitution, which most of the Founders disapproved of, which few of the Founders could have anticipated in terms of their full-blown form in the 19th and 20th centuries ... political action groups ... the role of the media in politics. We live in a world that has been totally transformed in terms of the dynamics of politics. And one has to acknowledge that in coming to terms with the adaptation of the Constitution to the circumstances of our lives.

BILL MOYERS:

What do you think is our most common misunderstanding of the Constitution:

of what they did here?

MICHAEL KAMMEN:

Well, our most dangerous misperception, I think, takes us back to the ... the metaphor of a machine that would go of itself, that, somehow, this ... this mechanism is so ingenious, and so perfect that it requires a minimum of citizen participation:

that, in fact, it will function successfully without ... people voting, without people being willing to accept or run for public office, without people being willing to serve on juries without people being willing to serve in at government at the local level.

BILL MOYERS:

When George Washington left here, didn't he say, ∑It is now the child of fate∑?

MICHAEL KAMMEN:

When George Washington walked of this room, on September 17, 1787, very shortly thereafter, he wrote a letter to the Marquis de Lafayette, his ... his bosom friend from the War of Independence, in which he said to the Marquis de Lafayette, ∑I'm not going ... we have finished our work:

it's now up to the people to decide, and I will not lift a finger one way or the other ... And if the ... if the document is good, I guess, it will probably ... be approved, and if it's not, it'll fail, but Washington acknowledged that it might fail, anyway.

BILL MOYERS:

We, at times, have orphaned it.

MICHAEL KAMMEN:

Yes. That's a very good way to put it.

BILL MOYERS:

The Constitution isn't quite what someone called it, in the last century, ∑The Bedside Companion of Every American." What is it? Is it what holds us together?

MICHAEL KAMMEN::

Well, it's not the only thing that holds us together. But it's, in terms of our political culture, in terms of the structure under which we live ... it is very much what holds us together. And insofar as we are able to go about our business and lead our lives, under this remarkably successful governmental system, despite the inadequacies of some incumbents, whether they are in the White House or in Congress or in the courts, ... we owe a great debt ... to that document, and, in that sense, it is a major part of the cement that holds us together. SIGNATURE MUSIC.

BILL MOYERS:

Olive

OLIVE TAYLOR: has studied the role of Afro-Americans in the formative days of the republic, including their fate as they appealed to the Supreme Court for freedom.

BILL MOYERS:

Almost every Supreme Court Justice I have talked to says, "The greatest Justice, ever, on the 30 Court was Chief Justice John Marshall. w Mister Constitution, he's called. And here you are ... writing a book about him. Why John Marshall? OLIVB

OLIVE TAYLOR:z Because ... John Marshall consistently and 8Y8tematically ... rendered decisions in favor of the doctrine of vested rights in property, where the states had made provisions, Bill, for blacks to be free, where the state courts had agreed that, indeed, blacks should be free. The first case is Scott versus Negro London. In those good old days, blacks didn't even have last names they were simply known as Negro London, Negro Ben, Negress Sally. And Negro London, then, in 1806, becomes the first case of a black petitioning the Supreme Court for his freedom. When the cases were appealed to the Supreme Court of the United States, John Marshall ... in every instance ... disregarded the construction of state courts, about their own laws, and remanded blacks back to the oblivion of slavery. MOYERS; Did he ever free one?

OLIVE TAYLOR::

Not one.

BILL MOYERS: Why? What was his rationale?

OLIVE TAYLOR:. What Marshall, I think, to render blow after blow to the is attempting to do is idea that states have any 80vereignty equal to that of the Supreme Court. you'll remember, one of the great debates that the Founding Fathers had was what was to be the locus of sovereignty? Should it reside in the national government, or should the states have co-equal power with the national government, and, of course, your Southern states had some second thoughts about a strong federal government national government. Because they feared, indeed, their peculiar institution of slavery would be jeopardized by such strength sitting in Washington. And, so, they ... based upon ... the institution of slavery, they began to develop the whole states' rights political doctrine ... So they did not want a strong federal government. Marshall was a staunch federalist. He wanted a strong federal government. AS a matter of fact, he is the federalist beau ideal. And, so, every opportunity that he had, he struck blow after blow ... against this idea ... that states were sovereign or co-equal to the federal government.

BILL MOYERS:

And he did this by asserting the power of the Court over states that even permitted slaves to go free.

OLIVE TAYLOR::

I mean, it's clear. Many states ... Maryland and Virginia had made laws, by the l790's ... that indeed the blacks would be freed under certain circumstances. And Marshall said, no. And I like ... the ... the way he ... he puts certain things. He said, even if that's what the law said, it couldn't be what it meant. No law can alienate a man's property from him.

BILL MOYERS:

Has your research shown that Marshall was a hater? Did he hate blacks?

OLIVE TAYLOR::

No. That's the beauty of his logic. He a destiny, a world view, about America that had nothing to do with hatred for black people. As a matter of fact, when we begin to read the original documents...it's not dipped in race hatred. You never see th.t. It is ... the ... the foremost concern is to make America. beacon for white people. It is to be the ... archetypical ... expression of man's ... desire for freedom and self-determination. And blacks just had no place in it. And, so, what Marshall, and most of the presidents, most of your political leaders at the time, sought to do with blacks who had fallen through the cracks of slave law, managed to get through and get free, is to send them back to Africa. They were all ardent members of the American Colonization society, and ...

BILL MOYERS:

Chief Justice John Marshall was ...

OLIVE TAYLOR::

John Marshall was president of the Virginia Chapter, and remained such 'til his death in 1825.

BILL MOYERS:

To send Afro-Americans back to ...

OLIVE TAYLOR::

Back to Africa. Yes. Get them out.

BILL MOYERS:

The new ... Chief Justice of the ...

OLIVE TAYLOR::

Of the united States.

BILL MOYERS:

... supreme court.

OLIVE TAYLOR::

Yes.

BILL MOYERS:

The greatest in history, many say. 33 r- I

OLIVE TAYLOR::

Yes ... Mister Constitution. Mister Expounder of the Constitution. Mister Justice. Okay. All those hyperboles are used in his regard. You know. But there's no hatred. You don't see hate ... race hatred written ... in it. It's a world view that blacks had no place in.

BILL MOYERS:

When you were growing up, what were you told, or what did you learn about the men who met in this room?

OLIVE TAYLOR::

Well, naturally, they were called ... The Founding Fathers. Okay. NOW, of course, that had a ... a great significance ... for me. I often wondered ... having grown up black ... if they had the same fatherly attention ... for me that they did ... for the rest of America ...

BILL MOYERS:

When you read we the people, did you think, that includes me?

OLIVE TAYLOR::

I did, as a youngster. I was taught that this is a document that was to bring justice to the doorstep of all Americans, and I thought myself ... to be an American, until I faced the harsh realities of ... segregation. And I can remember having to sit on the back of a bus, having to sit in the back of an integrated church, having to go last to receive the host in that church, all because of laws of segregation.

BILL MOYERS:

You weren't a part of the Constitution ...

OLIVE TAYLOR::

Not in the beginning.

BILL MOYERS:

... when it was signed here. 34

BILL MOYERS:

... to refer to blacks?

OLIVE TAYLOR::

Yes, that's right. In the eyes of law. We had no head in the state. Okay? Is the term used.

BILL MOYERS:

Do you think, as you look back on what happened here, that the compromise on slavery was justified?

OLIVE TAYLOR::

Well, given the realities of the situation. You have to remember that, coming out of the Anglo-Saxon system of common law jurisprudence... the doctrine of vested rights played a tremendous role; that is, the doctrine of the sanctity of property. It was felt that property was given by God. It is a gift from God. And all of the Founding Fathers remark about this. Governor Morris, for example, states that the first order of government is to protect property ... Not life and liberty ... It is to protect property, to promote property ... wealth ... that high civilizations are developed as a result of a man ... a man's faculty and propensity toward gaining wealth; that history may be decided ... on the basis of ... those societies that gained wealth and protected property, as opposed to those that did not. Cause and effect in history is determined by it. So that ... the aura ... surrounding property was very well known by the Founding Fathers.

BILL MOYERS:

So ...

OLIVE TAYLOR::

And it was not going to be tampered with. And it wasn't.

BILL MOYERS:

So, they were ...

OLIVE TAYLOR::

Yeah.

BILL MOYERS:

... very much men of their times.

OLIVE TAYLOR::

Of course. The very choice for capitol, Bill ... had ... very strong ... overtones dealing with slavery. You know, the Southern states had opposed Hamilton's plan for the assumption of the debt. And the compromise that was struck was that if the Southern states accept his economic plan for the nation that they would put the capitol of the United States in an area whose air was conducive to their peculiar institution. You know, they ... Southern ... delegates were embarrassed ... when they came to Philadelphia or to New York with their peculiar specie of property. Particularly to Philadelphia, where you had a strong Quaker body here, arguing against slavery. And ... they were determined that they weren't ... they didn't want New York as capitol ... because of all this anti-slavery rhetoric and, certainly not Philadelphia. And the compromise struck, then, was that if the Southern states would accept Hamilton's plan, that they would put it in an area whose atmosphere was conducive to slavery.

And the nation's capitol was carved out of two slave states.

BILL MOYERS:

Maryland and ...

OLIVE TAYLOR::

And Virginia. 38

BILL MOYERS:

Virginia.

OLIVE TAYLOR::

That's right. MOYBR~:

So there was agitation at the time of this convention, from Quakers, here in ... Philadelphia, and ... abolitionist forces ...

OLIVE TAYLOR::

That's right.

BILL MOYERS:

... in New York ... declaring slavery to be immoral:

to be wrong.

OLIVE TAYLOR::

Immoral. Uh-huh. MOYERS, But, somehow, it didn't pierce this debate.

OLIVE TAYLOR::

The American Revolution was fought ... to give the Americans a freedom to pursue their own economic destiny. And that meant the freedom to have slaves. Also. So ... that ...

BILL MOYERS:

Quite a paradox. Quite a paradox.

OLIVE TAYLOR:s It is a paradox. But it really is not. I mean, I can see the logic ... of it ... it's beautiful logic. The Southern states became states-righters, because they didn't want the federal government stepping ... in ... and ... and impeding their liberty to have slaves. They thought all of that was part of their freedom. Having slaves was part of their freedom to pursue ... their economic wealth. And their economic basis was predicated upon a ... an agrarian ... capitalism ... on slave labor. Okay?

BILL MOYERS:

Here you sit, two hundred years later, in the very room where that ... pact with the Devil was sealed.

OLIVE TAYLOR::

Oh. That was William Lloyd Garrison.

BILL MOYERS:

And ... and you're free ... you're free.

OLIVE TAYLOR::

Sort of.

BILL MOYERS:

In fact, you were twice removed from the protection of the Constitution. You were black.

OLIVE TAYLOR::

That's right.

BILL MOYERS:

And a woman.

OLIVE TAYLOR::

Uh-huh.

BILL MOYERS:

And there is no mention of woman in the Constitution.

OLIVE TAYLOR::

No. I had asked one of my colleagues ... who ... studies women's history, did we ... we the people, did that include white women? And she said; no, it didn't, and they had the nicest little phrase for them. They were known as Daughters of the Republic, but it had no ... legal basis to it Okay? So, this paternalism ...is clearly there, too, with white women. But as a black, the ... enslavement was not because of my gender.

BILL MOYERS:

Yeah. 40

OLIVE TAYLOR:s The enslavement was because ... because of my race. And ... I can, in 1987, appreciate the genius of the document, because that document was changed based upon the dialectic of agitation, agitation, agitation. And it does have a positive meaning for most black Americans.

BILL MOYERS:

Is that right?

OLIVE TAYLOR:s Oh, of course, it does.

BILL MOYERS:You still have faith?

OLIVE TAYLOR:s Of course. And so do most blacks ... So do most blacks.

BILL MOYERS:Despite this ... despite this record that you've just gone through?

OLIVE TAYLOR:s In spite of the record, that's still the document ... It ïï it ... well, I hate to say it's the only game in town, but ... it's the only document that we have, and all Americans can look to this document and defend that justice be brought to the doorstep of all Americans. This document ... is the ... practical instrument that brings it home. Now, it may not ... come as fast as we might like. There has been some ... bloodshed, much blood shed ... in ... over the interpretation of this document. Okay? But, nonetheless, when you look at the sweep ... of history ... based upon this document, I think we're ... headed in the right direction.

BILL MOYERS:

What do you think, when you look at the Court, and see that, on the same bench where John Marshall sat, Thurgood Marshall now sits?

OLIVE TAYLOR::

I think hope springs eternal.

BILL MOYERS:

Does it also say that the Constitution is elastic:

that it lives: that it changes?

OLIVE TAYLOR::

Yes. And it not only lives, but it works. It lives and it works. And I ...

BILL MOYERS:

Slowly. Slowly.

OLIVE TAYLOR::

Yes. Well, slowly. True. But, again ... if you keep chipping at it, the arm of justice is going to bend.

BILL MOYERS:

From Independence Hall, in Philadelphia, I'm Bill Moyers.