How to Build a Nation in 15 Weeks
Summary: Former Assistant U.S. Attorney Harry Sandick along with Jon Hatch and colleagues at Patterson Belknap revisit the hottest topics from each week in the Constitutional Convention of 1787, tracking their current place in our legal and political landscape.
Jerry Bonaparte gets married. Congress decides it really hates titles. The Titles of Nobility Amendment is almost ratified, but falls two states short, leading to a few conspiracy theories. (Lawyers are still US citizens, we promise.) Tensions with England and France rise. New England Federalists meet in Hartford, change their minds on several issues, make an ill-timed proposal, and are never heard from again.
A debt is paid, but not to the debtor. A will is probated, but not for the heirs. An argument is skipped, despite prior arrangements. A bank is taxed, without being named. A lottery is launched, but tickets are forbidden. A charter is granted, but withdrawn by others. A vault is emptied, but the contents are returned. A ship is wrecked, but its contents resurface. A dam is broken, and a ship sails on.
Article II, Section 1 is founded on accident, immediately shows signs of trouble, and implodes within 12 years. Hamilton schemes, and others counterscheme. The Federalists swap Pinckneys. The Democratic-Republicans fail to coordinate and Jefferson and Burr end up tied. Jefferson grabs a few votes, the House deadlocks, and Bayard makes a last minute deal. The Democratic-Republicans take the route of least ambition, and fix only a few out of a host of problems.
The Convention commits a basic drafting error (probably). Georgia fails to pay some debts, Virginia claims some land, and Massachusetts grabs some property. The Committee of Detail drafts Article III. Randolph seizes an opportunity for an old client (and some new ones), Wilson rules in favor of his investments, Iredell is ignored, and everyone freaks out. Congress fixes a problem but creates a new one.
The Tenth Amendment places (arguably) redundant restrictions on federal powers. The Patterson team discusses the ineffable nature of the Ninth Amendment, whether as a double redundancy, a murky wellspring of unknown rights, or an acknowledgment of the incompleteness of constitutionalism.
The Normans bring the original form of the jury to England in 1066 (or did they?) The colonists make jury rights central to the revolution, but the delegates don’t make the effort to add them to the Constitution. The Seventh Amendment preserves the right to a civil jury, without much guidance. The Supreme Court looks to history, except as to size. The Patterson team debates the continued relevance and importance of juries in modern cases.
The Patterson team discusses some of the Stuart abuses that shaped what rights ended up in the Fifth, Sixth, and Eighth Amendments. Freedborn John refuses the oath ex officio. Sir Walter Raleigh is denied the right to confront Cobham. Judge Jeffreys presides over the Bloody Assizes. Patrick Henry confuses the difference between “didn’t” and “shouldn’t have.” We pause to discuss a recent decision on double jeopardy and provide a (very) brief history of incorporation.
Writs of assistance come to the colonies, James Otis sets himself aflame with oratory, and John Adams takes notes. Massachusetts leads the way in restricting warrants. Dollree Mapp protects some salacious activities and writes herself into history. Georgia rejects the mullet doctrine and the Sixth Circuit rejects chalking. The Patterson team discusses the exclusionary rule and the breadth (or lack thereof) the Fourth Amendment’s protections.
The Patterson team discusses the English and colonial antecedents of the Second Amendment, the fear of standing armies motivating its proposal, and the Congressional modifications before ratification. We then examine every federal appellate case interpreting the Third Amendment. (It doesn’t take long.)
Early colonists try to balance religious liberty with established state churches. John Peter Zenger goes to trial and suffers a pyrrhic loss. The murky origins of the free speech clause. James Madison slyly tweaks proposals from the state ratifying conventions. Federalists and Democratic-Republicans battle over the Sedition Act in the shadow of the new First Amendment. Thomas Jefferson proposes a radical fix that nearly undoes the Constitution.
Federalists and Anti-Federalists debate the necessity, danger, and efficacy of amendments. Madison takes charge and persuades Congress to go along, eventually. The Senate ditches state restrictions and a strict separation of powers. Congress sends 12 amendments to the States. 10 are quickly affirmed and become the Bill of Rights. One is rejected due to micromanagement and bad math. One takes the long way round to become the 27th Amendment.
A riverine ambiguity leads the locals to return to first principles, and draft a constitution. The citizens borrow some rights, expand some others, delve into equal protection and equal obligation, reject separation of powers, and graft an executive, legislative, and judicial council onto a town meeting. A hardware store debt leads to an international incident, and Daniel Webster removes the devil from the details.
The Patterson team debates whether the 1789 Act is pro-debtor or creditor. The Federalists giveth to the Midnight Judges, and the Democratic-Republicans taketh away. Marshall and Chase contemplate a strike. Marbury v. Madison establishes judicial review—or does it? The justices resume circuit riding, and fold in Stuart v. Laird. Concern over civil rights slowly opens the door to expanded federal jurisdiction, until the railroads kick it down.
The First Congress picks up where Article III left off. Oliver Ellsworth gets possessive. The justices are told to make like post-boys and get on their horses. Congress tries to avoid amendments, and omits federal question jurisdiction and appeals from criminal trials or pro-federal decisions. The Rules of Decision Act is added at the last moment, leading to countless litigation over a provision that may not have applied in the first place.
On this bonus episode, we spoke with Professor Michael Klarman, author of the excellent book the Framer’s Coup: The Making of the United States Constitution, about how the Framers designed the Constitution to be less democratic than the existing state governments, how the Federalists managed to ratify the Constitution over strong opposition, the mistakes of the antifederalists, and whether we should mythologize the Constitution and its founders.