Madison - System built to last ages, don't lose sight of changes
Sorry about the paraphrase, but was space limited (hubpages should take note). What James Madison actually wrote was:
"In framing a system which we wish to last for ages, we should not lose sight of the changes which ages will produce." (referring to the Constitution)
The question is - What did he mean by that?That a method of changing the constitution was necessary (as in amendments)?
Great way of putting it. I think our forefathers knew that the original Constitution was a "stitch in time to save nine", in this case 13 colonies. It was a temporary document that loosely knit these colonies together, and changes would be necessary as time went on. At the time, even our forefathers couldn't agree on whether to have a strong central government or to let each colony govern itself with a weak central government attempting to hold them together. New ideologies and technologies have necessitated changes in the Constitution in the form of amendments.
Hello MizBejabbers, I don't intend this as a challenge to your statement, but I do think you are very wrong. My Madison readings, including this quote and its context, indicate that far from a temporary document to meet the current need, (a stitch in time... 13 colonies) - Madison was very much looking forward, to the ages to come, well beyond just the current 13 colonies' needs.
Relative to their documented disagreement; strong vs. weak central government, in the end there was agreement. The strength of the central government was placed in the hands of the people - via the workings of the Constitution.
Consider this perspective; Look at the wording they very carefully decided on. The important parts were very brief and concise, and basic. Ambiguities were left for the people to determine. Where specifics were needed to achieve the constitution they had in mind - they were specifically stated. Where ambiguous areas that would be relative to current times were addressed - they only stated the foundation, and left the details for future determination. An example might be the number of judges on the Supreme Court - the Constitution didn't specify a number of judges, but they were very specific in the power of the judges. But for the elected branches - they defined precise terms and responsibilities, and powers.
GARespectfully, GA, I think you just backed up my argument without knowing it. Yes, I agree that they made certain specifications in the Constitution on basic human rights, but you went on to say "...they only stated the foundation, and left the details for future determination". That is just another way of stating what I was saying. I know you didn't like my description of "a stitch in time...," but although the framers knew what they wanted, they were having to make compromises to get the 13 colonies to come together in agreement.
If you haven't already, you need to read ME's hub on Gorsuch where he explains the difference between a contextual approach (intent) and a textual approach (concrete). There is a thing in law called "liberal construction" where the ambiguities are given room for the courts to decide. This would be the contextual approach. Madison was planning for the future. He, probably felt "within his bones" that there would be westward expansion and other new frontiers to explore, not necessarily land-based. He was a forward thinking man.Madison not only "knew it in his bones", but forcefully argued during the Constitutional Convention that one HAS to consider the large expansion of the United States and its impact on governance.
Mizbejabbers, allow me to offer a caveat. On this topic, I think it is perspectives and understandings that are being discussed. Not necessarily facts, or, ideologies. So my declarations of right or wrong aren't intended to be offensive or denigrating - only that I disagree.
So perhaps I did make your point, but if so, then I wasn't clear on the point I was addressing. I was speaking to your reference to a "temporary document." That was my disagreement. Particularly as it relates to the topic of Madison's quote. I think the members of the Constitutional Convention were very much trying to create a permanent document.
And I appreciate the thought behind your referral to My Esoteric's writings regarding Contextualist, (Constructionist), and Textualist, (Originalist), Constitutional interpretations. But I am already familiar with those concepts. They are typically addressed as seeing the Constitution as a Living document, or a Dead, (static), document.
I do not agree at all with the Contextualist interpretation, and I prefer to split hairs on the combining of Textualist and Originalist. I think there is a difference. Judge Scalia was self-described as an Originalist - the words meant exactly what they said, in the context of the times of the writings. A strict Textualist reads the words as the commonly understood usage - of current times. It may be an insignificant distinction, but let me offer one example from these forums - from a discussion with My Esoteric, to boot.
The phrase of the discussion was "tributary flow," and I blew it badly by reading it textually. I would feel safe making the assumption that, in our times, if you asked someone what tributary meant, when the word flow was associated with it, they would offer an association with water, rivers, branch-offs of main bodies of waters, or, at the least, as an off-shoot or branch of a "main" something. That was my initial reading of the phrase, and it was so wrong, my response looked as silly as I felt when I realized my mistake.
An Originalist reading of the phrase would understand that of the times it was written, tributary was a reference to money, (or value), thus the phrase as used was actually referring to the flow of money - not water, or, not an off-shoot flow from some main body.
I can also, partly, agree with your explanation of the legal understanding of "liberal construction," as related to some aspects of the Constitution.
I think this part of my original response to you could also be a description of a form of "liberal construction."
But... I don't see that opportunity for "liberal construction" for some aspects of the document to be any kind of validation of the Contextualist Interpretation concept. And I don't think Madison would have either.
I certainly agree with you that Madison was a "forward thinking." And in ways much more profound than just the territorial and population expansion of the new nation. You can see one example I see, in my recent response to My Esoteric, regarding "bread and circuses."
GA"I was speaking to your reference to a "temporary document." That was my disagreement."
GA, I'm not an unreasonable person, so I'm going to have to concede your point on your above statement. "Temporary" (as in the Articles of Confederation, a true temporary document) was the wrong word to use because I realize the literal meaning was not what I meant. So, perhaps it's better to say "living document," "changing document," or "growing document" for the textualists. I agree that some of it is written to be taken literally, but some of it leaves room for contextualists to conjure and interpret. It is necessary because language changes, evolves or becomes hybridized because of migration, society mores, and technology. Part of my work is not only to modernize the legal language in our state code of laws, but also in our state constitution.
Taken in context, our Declaration of Independence reads that "all MEN are created equal ... life, liberty and the pursuit of happiness", but it's taken well over 200 years to bring women out of the Dark Ages. I say God bless the contextualists!Hello again MizBejabbers, I did have the impression that you were a Contextualist, and I can imagine that you have as many considered reference points to support your view, as I do to support my Originalist one. But that would be another discussion. I think we have a full plate with My Esoteric's Madison quote as a topic.
In anticipation of a future 'Constitution interpretation' thread - I will veer from the topic just enough to toss out this bit of bait... I do not think your Declaration of Independence reference is a valid one. Not only were the purposes, and need for the immediacy of its completion different, but the Constitutional Convention had a decade of experience with the chaos and examples of the inadequacies of your mentioned "Articles of Confederation" 'Constitution,' which is one reason I think the Framers were so cautious and precise with the wording they chose.
... back on topic, and regarding your;
"... but some of it leaves room for contextualists to conjure and interpret. It is necessary because language changes, evolves or becomes hybridized because of migration, society mores, and technology."
I believe the amendment process that was first mentioned in this thread could adequately cover those listed reasons for changes to a Constitution to address a changing nation. That is why I feel it was the "checks and balances" in our Constitution that Madison was referring to, especially since I have come to the firm conclusion that it was a Judicial branch of government that he was referring to.
GABeyond the mechanics of how they wanted the gov't to run, e.g., the amendment process, there is little else that can't take on several meanings.
Even such an obvious example as "To establish post-offices and post-roads:" It couldn't more clear, could it? Literalists (= Textualist plus Originalist according to Breyer.) and Contextualists should have no argument over this one. Well they did in several Supreme Court cases.
The issue revolved if the federal gov't had the right to actually "build" post-roads. John Jay and George Washington agreed that the federal gov't could while Jefferson that only the states could physically build the road. Initial decisions sided with Jefferson, later decisions reversed that.
When I read that clause, it never occurred to me the fed couldn't build the roads. If I were a textualist I would have gone with Jay and Washington; but I guess that is not what I am, lol.My Esoteric, you are costing me too much time. I can only hope that you had to spend as much time reaching your "Contextualist" opinion of the post-roads issue as I did feeling confident in my "Originalist" view of it. You know, in a '... misery loves company' kinda way. ;-)
Here is my quandary. I disagree with you, (if I understood you inference correctly), that the post-roads clause should be read contextually - even though I found reference that Madison thought of it as only a designation power, (the Contextualist view). I may not have found the most prominent court decisions, but the ones I did find, and this extensive opinion in Commentaries on the Constitution of the United States (1833) BY JOSEPH L. STORY, seem to affirm that an Originalist view is valid.
My excuse for disagreeing with Madison lies in the several notes I found that the postal clause was, almost, merely transcribed from the Articles of Confederation, and was not a much debated one, nor one that was attributed much importance.
Further supporting my opinion were the commentaries that noted the Post-roads clause was not to be interpreted in the vein of the Commerce clause, and that State consent was a necessary componet of the power of the Post-roads clause to construct roads.
I am almost feeling like the OCD housecleaning lady that found a dustball under her bed.
GACongratulations, GA, you are a contextualist (my definition of it which is the same as Justice Breyer), lol. I say that because of the analysis you did to come up with your opinion regarding the definition of "establish", which is the core question - does "establish" include "to build". In other words, you looked beyond the mere language, structure, interpretive canons, history, and tradition.
For me, unfortunately, I didn't spend any time at all on the meaning of "establish" because it never occurred to me that it didn't include "to build" in its meaning. Now that you gave me one of your sources, I must digest it.
In any case, my whole point in using this clause as an example was to show that even declarative statements in the Constitution are subject to interpretation by the Courts.You are almost right My Esoteric, I am a Contextual Originalist. Every communication requires context for proper understanding.
A silly example might be, "Duck!" With no context, what does that mean? If someone was throwing rocks at you, of course it means "Look out, get down." If you were duck hunting, it could mean, "Look there it is, or it could mean the same as the throwing rocks example - because you are standing in front of the blind. See what I mean Vern?
Like you, I also 'just assumed' "establish" meant to "to build." It wasn't until the controversy was noted that I had any reason to look into it. That "looking into" wasn't to determine the meaning of the word, but to confirm my original opinion.
I even looked into your mentioned Justice Breyer opinion, and regarding the interpretation of "any," I find that I can agree with his point. His wife's statement that, "We don't have any butter," used as an illustration seemed right to me. But... I haven't given it enough thought to consider it an across-the-board application.
For me, the label Contextualist either needs to be divorced from the "Living Document" perspective, or changed to my preferred choice of labels; Contextual Originalist. ;-)
As to your "declarative statements" thought... I regard this "post roads" issue as a possible example of the Framers being less diligent than they were in their other efforts. Or maybe not. There were notes that Dr. Franklin wanted to amend the wording to include the power to "cut channels," and there was one other specific task that I don't recall, but they were not included - so maybe there really isn't any controversy. Establish roads meant establish roads - from the beginning. It was the Contextualists that made it a controversy. Hmm...
As you can see, I like to think out loud. I usually end up talking myself through to an opinion I am comfortable with.
GA
Yes, amendments were one method. But is that all that Madison had in mind? Why was their final product so vague and open to interpretation in terms of the non-mechanistic parts of the Constitution?
I doubt it was that vague OR open to interpretation. The problem here is that we are not of that culture or language.
Do you, Wilderness, consider the Commerce Clause, for example, deterministic?
The Founding Fathers recognized in their wisdom the truth that "time changes space". They included a system of amending the Constitution to accommodate change that none could neither anticipate nor foresee. Part of being human and sentient is to recognize the inevitable reality of change and create a document that could accommodate it. Our Constitution has been remarkable in the fact that it still exists after over 2 centuries.
Hey there Cred, I offered this perspective in another response, but I would offer it again for your response.
From my previous response you will see that I think the perspective of Madison's quote was specifically related to the "checks and balances" power of the 'three branches of government' design of our Constitution.
Regardless of the amending power that was included in our Constitution, I think it was the 3-branch structure of our government that he saw as the strength of the document that would survive the changes of the ages to come.
I think a couple fair examples might illustrate my point;
The changing morals of our nation allowed the prohibition amendment, and it also allowed the repeal of that amendment. But it was the judicial check that stopped FDR from 'packing' the Supreme Court, and Nixon from abusing the Executive power by refusing to comply with lower court rulings regarding Executive Privilege.
GAHey there Cred, I offered this perspective in another response, but I would offer it again for your response.
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Thanks GA, The concept of the "three branches of government and the separation of powers are the foundation of "the house" while the Amendment provision are the appendages that can be added and removed. The Constitution is not the Constitution without the "three branches' and 'checks and balances". That is the strength of the document that is to survive changes of the ages to come.
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I think a couple fair examples might illustrate my point;
The changing morals of our nation allowed the prohibition amendment, and it also allowed the repeal of that amendment. But it was the judicial check that stopped FDR from 'packing' the Supreme Court, and Nixon from abusing the Executive power by refusing to comply with lower court rulings regarding Executive Privilege.
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I am in complete agreement with your point here.
My Esoteric, An excellent topic. I look forward to to your views of my perspectives.
I think the discussion of Madison's perspective - relative to our Constitutional design, will be as applicable to today's political and social environment as it was to the political environment of his time.
GA
While I do agree that including an amending process for the Constitution does seem a plausible thought, after searching for the context of the quote, I think a different reasoning might be offered.
I believe his quote was in reference to the checks and balances of the design of the three branches of government.
The specific instance of the quote was in a debate of the length of term of the House of Representatives - referred to as the "2nd branch," (the legislative branch), but as he continued to speak, it seems he was also referencing the 3rd branch, (the judicial branch, aka the Supreme Court) - the wisdom of this branch to validate, or invalidate, the actions of the 1st and 2nd branches of the government they were designing.
Whether that is a correct interpretation, or not, it does seem clear that he was most pointedly referring to the Constitutional fail-safe design that provided a check and balance of all three branches.
Here is part of his debate speech that I think provides the context for my interpretation:
He sees the possibility of a legislative, (his foresight of the Left vs. Right contest we have witnessed throughout our history?), imbalance facilitated by the democratic election process. So he is relying on the safeguard of equal branches of government as a constitutional design.
Whether my interpretation is right, or not, I can't help but be amazed by Madison's grasp of potential future challenges to the constitution they were designing. Hamilton and Jefferson both pale in a comparison. For me, only Franklin was of the same foresight.
GAAnd for opposite reasons - referring to your Hamilton-Jefferson comment.
I have read that passage from Madison several times. Along with using one part here, I have been trying to frame a question regarding the sentences following it (the rest of the context).
Yes, GA, I think you are on the right track in interpretation.
I think it is essential to keep in historical perspective that not long after the Constitution was ratified, government took a conservative track and stayed that way until the 1930s (save for some brief episodes of relief. Washington and Adams were certainly for a strong central gov't. Jefferson talked a limited gov't game but he didn't practice it. It was with Andrew Jackson where gov't took a sharp Rightward tilt (as we understand that term today) although James Monroe began the process.
Interestingly, James Madison shrank his definition of "limited" after starting to represent Virginia in the new House. But, keep in mind that Madison was also extremely disappointed that he didn't get his way when he wanted to include a federal veto power over state legislation in the Constitution.Greetings My Esoteric, One of the reasons I complimented you on your choice of topics is my perspective that it is one that can be enjoyably and seriously discussed without any defensiveness, (or righteousness), of partisan or ideological leanings. We have all seen enough of those.
Regarding your efforts for the sentences following Madison's quote, one sentence struck me as both acutely historically aware, and at the same time extremely prescient concerning the nation's growth.
It was this one:
*[My BOLDING]
That sounds like a popular expression that a democratic election process can allow citizens to essentially vote themselves "bread and circuses" when ever enough of them get together.
As for Madison's disappointments, I think that illustrates the strength of our Constitution - it's creation was a team effort. And like any team, there are superstars and workhorses. Both contribute to the success or failure of an effort..
GAAgreed. It is the checks and balances that come under serious attack when one extreme or the other gains a decisive upper hand.
It is interesting to watch it play out. Congress had "checkmated" themselves so Obama does what he can through EO to carry out his program (and here I don't think the framers anticipated what would happen). Congress doesn't like that and check him with a law that allows them to negate a presidents EO under certain circumstances. Then Trump comes along with an indecipherable agenda, assume he has one beyond tomorrow, and starts running the gov't through EO as well. Why? Because even though the Rs have the majority in both houses and a willingness to do away with the filibuster when needed, Congress is still checkmating itself.
Historians will note that what the Tea Party did to the GOP on GOPcare, the Left-wing tried to do with Obamacare. The only difference is, when push came to shove, the Left compromised with its more moderate elements.
To my parenthetical. It is clear from reading Madison's notes and the Federalist Papers, the framers (other than Hamilton it seems who wanted a monarchy but nevertheless compromised) fully intended that the Legislative Branch should come up with annual plans, pass the laws to implement them, and then hand them over to the Executive Branch to carry out. I don't recall reading anything where they surmised the President would design his own agenda and the "lead" the legislature in passing laws to carry his design out.
What would seem to have slipped past them (more probably I just missed reference to it) is that a "body" of men cannot ever lead themselves. They can deliberate certainly, but not lead. So, starting with Adams, the President became a sort of a CEO, in my view.This one is easy enough, and it's a good thing. I have a book I want to get back to.
I think you are right. But I would expand on a couple of your points, so I will come back to this one when I have more time.
GA
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