The Daily Signal - How the Americans Became a Constitutional People

Episode Date: May 7, 2022

This latest podcast is a conversation with Gordon Wood, the great historian of the American Founding, on his new book, Power and Liberty, which details how Americans drafted, ratified, and incorporated written constitutions as fundamental laws into their politics and government. On the creation of the American Constitution, Wood observes, "Instead of reforming the Articles [of Confederation], they throw them out and create an entirely new government, the federal Constitution that we have with us today, something that nobody in 1776 even imagined in their wildest dreams. I know of no one in 1776 that anticipated the kind of federal government that emerged 10 years later. Something awful had to happen in those 10 years to explain the Constitution. I find that it's harder to explain the Constitution than it is to explain the Revolution itself." Wood also takes on the 1619 Project: "What's interesting about the Revolution is that the Revolution makes slavery a problem for the first time in Western civilization and leads to a massive assault on the slave systems of the New World. . . . The Northern states, almost immediately in 1776, mount a massive assault on slavery, which had been legal in all of these Northern states. By 1804, all the Northern states have abolished slavery, the first states in the history of the world, or at least the modern world, to abolish slavery." Hosted on Acast. See acast.com/privacy for more information. Learn more about your ad choices. Visit megaphone.fm/adchoices

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This is the Saturday edition of the Daily Signal podcast. I'm Richard Reinch. Today I'm speaking with Gordon Wood, history professor emeritus at Brown University on his new book, Power and Liberty. It's my honor to talk with Gordon Wood today about his new book, Power and Liberty, constitutionalism in the American Revolution. Gordon Wood is one of our master historians of the American founding. He's the author of numerous books on a subject, books for for which he has received numerous awards. I first started reading Gordonwood Scholarship my senior year in undergraduate studies.

And his book, Creation of the American Republic, published in 1969, won the Bancroft Prize. His book, Radicalism of the American Revolution, published in 1992, won the Pulitzer Prize for History, along with the Ralph Waldo Emerson Prize. His book, Empire of Liberty, the history of the early republic in 2009 was given the Association of American Publishers Award

for History and Biography. And that list goes on and on. In 2011, he was awarded a National Humanities Medal by President Obama and the Churchill Bell by Colonial Williamsburg. Gordon, we're glad to have you all on the program today. I'm glad to be here. So thinking about your new book, Power and Liberty, Constitutionalism in the American Revolution, You turn to, I'm kind of thinking of it as how did the Americans become a constitutional people? So maybe talk about the book and what you aim to do with it. Well, like the constitutionalism was really, I think modern constitutionalism was really set off by the American Revolution. When we think about creating constitutions, then we've created dozens of them since World War II throughout the world.

they're written documents, and it's the American experience that really made that fix. There had been some written documents earlier, but generally speaking, people had not thought of constitutions in the way they think of them now as a single written document. It's the American experience. In 1776, each of the states wrote out their constitution, and the federal constitution, which occurred roughly 10 years later, was derived from those state constitutions. People write out constitutions because they're frightened of power or they want to prescribe what could be done. Government needs to have guidelines and how much power it has, and so constitutions play that role. When you're in doubt of your institutions, you want things

down in black and white so that you can be sure that power does not encroach on liberty. The English Constitution famously is unwritten. It's composed of a lot of different elements, documents, practices, procedures within English constitutionalism. And as you say, the colonists decide to write things down. So there's clearly some notion here that writing it down accomplishes something good in the development of liberty. but also how power could be created and yet cabined. Yes, of course, and the English had many written documents. Going back to Magna Carta, which are part of the English Constitution,

they had a lot of documents in the 17th century, bills passed by Parliament, habeas corpus Act, and then finally the Bill of Rights of 1888, which in many respects anticipates our own Bill of Rights, connected with the federal constitution. So that writing things down is common. And of course, we have a written constitution, but we have a lot of unwritten constitutional practices as well.

We couldn't exist with this federal constitution with, what, 8,000 words? We fill it in with all kinds of conventions and habits and practices. And the British system has some written documents as well. So that, I think, makes us more alike than I think many people think. What's different, I suppose, is that the English have confidence in their system that perhaps we're not quite as confident as they are in their practices and conventions. Thinking about this, this book you've written, a revolution, leaving the mother country, fighting a war, and yet at the same time in your book, you're detailing how the Americans became a constitutional people. Even, you know, after the Declaration of Independence,

maybe talk about this explosion of the state constitutions, you know, revoking their colonial charters, and putting forward new state constitutions. What's going on there? Yes. Well, I think that's something we generally ignore. When we think of the revolution and constitutionalism, we usually think of the federal constitution, which occurred 10 years after the Declaration of Independence.

But it's the state constitutions that are really important. They're the ones which embedded certain practices into our thinking, separation of powers, the idea of bill of rights, all of these were attached to most of the state constitutions, which makes the federal constitution derivative of what had been done for 10 years earlier in the state constitutions. The notion of separation of power is crucial. We forbid the simultaneous office holding of legislators or judiciary from sitting in the executive. And of course, that forever forbids us from parliamentary cabinet responsible government, which is what the English model is. I suppose the English model has been copied by more democracies

than our own system of separation of powers. But it was the fear of corruption, the fear that the executive would buy off people in the legislature by appointing them to executive offices that led to that prohibition that's written into all the state constitutions and then written into the federal constitution as well. When Hillary Clinton, Senator from New York became Secretary of State, she had to give up her office in the legislature. In England, she would have to maintain her office in the legislature if she were going to sit in the cabinet. It's that difference that was, I think, most pronounced in the state constitution making of 1776. You have a fascinating chapter in the book about the articles of Confederation and the rejection of the articles of Confederation. And you also bring forward sort of these problems existing under the articles in the state.

states and that it wasn't the case that the articles weren't functioning well or was it the case that these new state constitutions had themselves created problems that they were trying to account for with a stronger federal government that could regulate citizens directly. And maybe talk about that because you also, I tend to think of this period as, you know, there was just if not chaos, you know, just a lot of rampant political. function in the country and that sort of brought us to this moment of 1787 in the constitutional convention. But you kind of articulated differently. Well, I think there is a problem with the articles because I think the best way to understand them is not as an early version of the Constitution. They're a totally different thing. It's a treaty, a treaty among 13 independent states, not all that different from the treaties that underlie the present-day European Union. And that's what it was, a union, a treaty, a league of independent states. You can't miss that or else the whole period looks crazy to you.

Each of those states thought they were independent entities with a sovereign power. Just the way Germany and France think of themselves as sovereign states. They are willing to give up some authority to the EU, but they see themselves as sovereign states. When Jefferson thought, my country, he meant Virginia, or John Adams thought of my country, it was Massachusetts. So that's what the articles created. And they lacked the power to tax and the power to regulate trade. So there were obvious weaknesses in the articles. But the real force, the real driving problems that created the crisis, I believe, came in the states.

men like Madison and others and elites essentially were frightened by the excesses of democracy that's taking place in the states. The state constitutions had given an enormous amount of power to the popular legislatures. And the power was being abused by these state legislatures, passing all kinds of legislation that Madison and others. And he's just a spokesman. He's the spokesman for the elites that are concerned about what's happening. They just hadn't anticipated the kind of democratic politics that were emerging with the multiplication, the mutability and the injustice of state legislation.

The multiplication, there was more laws. There were more laws passed, said Madison, in the decades since independence than in the entire colonial period. by these state legislatures. And they were changing constantly because you had annual elections in all of the states, an innovation for all the states outside of New England, and you'd get

some cases a 60% turnover in seats. So you have new interests coming in and passing new laws. The mutability of laws was so great, that is the changeability of the laws, was so great that judges were finding it hard to know what the law was.

And then finally the injustice, which Madison mainly meant, passing of paper money legislation, creating paper money as legal tender instead of gold and silver, and this was hurting creditors. And creditors were a major force behind the movement towards a constitution. That, I think, is summarizing my argument. That seems to me the major force. If you read the little essay that Madison wrote, and he is crucial in bringing about the convention, called the Vices of the Political System of the United States. I love that essay. Yeah, it's a short little essay, and it can be called up.

It was never published, of course. He kept it as a private working paper. He wrote it in the early in 1787. he was a systematic thinker. He wanted to make sense of what he was doing. And he wrote out these thoughts. And it's in that little essay that you get this fear of democracy running amok. And he had had experience in that because he served in the Virginia House for several years.

They had a rotation in office for the Congress. under the articles, and he had served his three years, and he had to get out. He had no other career aspirations except to be in politics, and so he entered the House of Burgesses and House of Delegates, I should say, and experienced the democratic politics, modern democratic politics, which I think appalled him. And it shaped his thinking and helped, but he's not alone in this. otherwise you could never brought it off

I mean there were just dozens upon dozens hundreds of elites of various sorts who were and then other interests too are the what Madison and the others did

was take advantage of the thinking by 1786 I would say the whole political nation without exception was ready to add taxing powers and the ability to pass navigation Acts, that is to shape international trade, was willing to give those to the Articles Congress.

Madison uses that, Madison and his followers, and hijacks that movement. And instead of reforming the articles, they throw them out and create an entirely new government, the federal constitution that we have with us today, something that nobody in 17, 76 even imagined. In the wildest dreams, I know of no one in 1776 that anticipated the kind of federal government that emerged 10 years later. So something awful had to happen in those 10 years to explain the Constitution. I find that it's harder to explain the Constitution that it is to explain the revolution itself. The, you know, I've read correspondence between Madison and George Washington in this period,

that we're discussing. And it also seems to be the case that the dysfunction in the state legislatures under the state constitutions threatens the, you know, overall project that Madison has been a part of, that, you know, that is to say, Republican rule. That it could be undone by, and then, you know, you have Shay's rebellion, which you also touch on in this book. And just, you know, can we even put down public disorder, given the weakness of the government? And it seems to me there's a lot of, there's this overall question of what are we, you know, this could all be for not if we, if we don't have. That's right.

That's right. That's, that this was a crisis of Republican government. It brought into question whether majority rule could exist. I mean, Madison's response is, I think, within the Republican tradition, because he could easily, and many others would have followed them and said, Virginians could have said, look, Republican is not working. we've got to go to monarchy or some kind of arbitrary rule from above. They didn't.

He was trying to find what he said was a Republican remedy for Republican diseases. And that's what makes it so difficult. They want to keep republicanism, but they're creating a strong national government, which, for many people, smacked of authoritarianism and quasi-monarchy, because the president is given, well, he's given Article 2 of the Constitution is very vague about how strong the president is. I was just going to ask you, and thinking about these state constitutions that they're responding to, I mean, what was the most radical one? And what was the most conservative one? Well, the most radical was Pennsylvania, which abolished.

really had no executive. They had a multiple executive. They had no single governor. It was Euma Campbell. There was no, there were just, there were just one house, which appalled John Adams, who was very keen on maintaining

a tripartite government that is a governor, an upper house and a lower house. And Pennsylvania does away with that. And really had a quite radical approach. Laws would, could, had to be ratified by the people in general so that the upper house becomes the legislature and the lower house is in a sense of the people themselves. It was opposed by elites in Pennsylvania almost immediately, and eventually they forced a transformation

by the decades time. In fact, because of the federal government's creation, the opponents of the of the Pennsylvania Constitution, were able to revise it in 1790. The most conservative constitution was the one in Massachusetts, which came late. Massachusetts put it off,

and they defeated one constitution in 1778. And then finally, John Adams wrote, pretty much wrote the whole constitution. It was passed in 1780, and it set the pattern The thing that it bothered many people, including Jefferson, was how do you make it fundamental? They knew the Constitution had to be fundamentally.

It couldn't be just another statute passed by the legislature, even though in many cases the legislature had created the Constitution. They said, well, how do you amend it? How do you protect it against legislative tampering? Well, they did not quite know how to do that. And they kept playing with different ways, for example. In Delaware, they said, well, you have to have five dozens of the legislature. And that is a supermajority to change the Constitution. Others, I think in Maryland, said you had to have two successive legislative bills.

Somehow they were seeking some way of making the Constitution superior to ordinary law. But Massachusetts works out the process. You call a special body, which they now call the convention, a constitution. Convention, which had one duty only to make the Constitution, and then it would be sent out to the people for ratification. And that becomes the model, and it's followed from then on. New Hampshire follows it a few years in 1784. And then even the French, when they come to make their own constitutions, look at American experience and realize we need a special convention, a special body to create this Constitution.

So that's one of the most important innovations Americans make to world constitutionalism. So the idea of fundamental law, the Constitution being fundamental law, required innovation from the early Americans, I suppose, because the British Constitution doesn't really have that concept in the same way.

That's right. Well, the English Constitution is created by Parliament. It's no different. I mean, the Bill of Rights of 1688 is a parliamentary statute. It could be eliminated tomorrow with another parliamentary statute. See, that the English don't have a fundamental law in that sense. And that's what Americans wanted to avoid that. Putting all this, allowing the legislature to create the Constitution,

made no sense of a constitution. I wanted to. We were on this thread. earlier, I wanted to come back to it and that being the Republican remedy for a Republican disease, because I think it's also instructive for, you know, maybe people listening who have been told that the Constitution is, you know, anti-democratic or was an attempt by elites to rest control away from the people, et cetera. And I think it's where when you point this out in the book, they're not trying to remove control of the government away from the people.

They're trying, they cement the government in control of the people. They're trying to create points of departure mechanisms, ways by which that power can be exercised in a deliberative way in the federal government and avoid or, you know, circumvent a lot of these problems they're experiencing. And you write about that in the book, maybe help us understand that. Well, they're frightened of political power. And if political power comes from the executive, they are concerned about that. but if it's coming from the state legislatures, then they're concerned about that.

And so that's the kind of dilemma they have. And they wanted, Madison and his fellow federalists, as they called themselves, quite shrewdly, they should have really been called nationalists. They wanted to create a system that could restrain all political power, but at the same time be an energetic government. That's not easy to do. And that's been the American experiment from the beginning to kind of keep a balance between protecting people's rights from political power, but at the same time having a government that had enough energy to do the things government needed to do. And that's the dilemma that the federalist in Madison and his colleagues faced in 1787.

ever. You discuss, you talk about the presidency. Do they get this model of executive power, which is clearly a departure from the state constitutions, clearly a departure from the article's confederation? Are they returning to the English monarchy for understanding of executive power? Or they, where else might they be looking to put this question? Because George Washington writes to Madison in, I think it's April of 1787, a month before the convention.

And he knows that something's going on. Virginia, for example, is taking the lead. And it's understandable. Virginia, we have to understand. Virginia is by far the largest state in the Union, the most populace, the richest, the biggest in territory. I mean, Virginia dominates the states as no state ever has in our whole history. It really is that without Virginia, you don't have a United States. So it's understandable.

takes the lead. And Washington knows that if there's going to be an executive, a single executive, that he will be the person. He's not modest about that. He knows that. And so he writes to Madison, says,

well, what have you done about the executive? And Madison writes back and says, well, I haven't given it much thought. This is a month before the so in his Virginia plan, which others knew about it, and the governor of the state Randolph presents it to the convention, it's not clear that it's going to be

one person or several people, three people maybe. So he, Madison really hadn't given it much thought. And when Article 2 is finally written, it just says the president is commander and chief of the army and will wield all executive authority. Well, what does that mean? Well, I think they did draw a lot on what the crown could do. And I think they're thinking of that. But it had to be worked out. As Washington realizes when he becomes president, he said, we're in strange waters here.

We don't know what to do. There are no precedents. And he's feeling his way. And that's why Washington is so important to our history because he was careful in his exercise of executive authority. But he also wanted energy in the government, so we have a nice balance, I think, worked out, at least by Washington in the early years of the 1790s. What's the significance of the presidential veto?

I mean, at one level, it's obvious. But what are they trying to achieve with that? Well, John Adams, of course, is crucial because he wrote his first piece that gets published. thoughts on government in April of 1776, there's a bunch of other delegates to the Congress, which hadn't yet become independent, hadn't declared an independence. They write to them, well, what do we do with our states? I mean, how are we going to create with our colonials? And so he finally kept writing letters to people.

He says, well, I'll just publish it as a little pamphlet. And he sets out the notion of a tripartite government, that is two houses. and an executive, and he wants a full-fledged veto, which is what the king, of course, had in England. Adams is very much taken with the English Constitution. So he wants an absolute veto, that is to say, could not be overridden by the legislature. Well, that's too much for most people. And in fact, it was too much. None of the states gave their governors a veto in 1776, except I think South Carolina.

But when he comes to write the Massachusetts Constitution, which comes late, as I say, and so there's been some experience now with these legislatures running wild, they do give, and Adams is forced to give a qualified veto. He wants an absolute veto given to the governor of Massachusetts, but they give them a qualified, could be overridden by two-thirds of the legislature, which is what is copied in the federal. Constitution. It's just another way of balancing off the power of the legislature, which is considerable, giving some protection to the executive. And it's Adams who, but he's speaking for the whole host of other people who are frightened by too much power in the legislature needs to be offset by some power in the executor. The discussion in your book, too, on the veto, of it being a way to protect the forms of the Constitution, of being able to check a sort of attempt to form a faction within the legislation,

that the president taken into account the entire nation and what he's doing, maybe more so than those who are in the legislature. Right, and Washington tended to think of the veto and maybe subsequent subsequent presidents did as well up until modern times as when they thought something was unconstitutional. They thought they had the right to veto. Now, of course, the veto could be used just because you don't like the political, the policy of the legislation.

You don't like the politics of it or whatever. It's not necessarily a constitutional veto. But at the outset, I think that's how Washington tend to interpret it. But I was going to say that the institution that comes out of the revolution with the most power that you have, unanticipated, of course, is your judiciary. And again, this is the institution that is going to interpret the constitution, this fundamental law, and set it alongside legislative statutes and decide whether the statute is, is in conformity to the fundamental law of the Constitution. And that becomes the judiciary's role, and it gives it enormous power that we see right up to our own time.

Yeah, definitely. You write in the book about the judicial review, though, the idea is that the judges are trying to protect the Republican Constitution and the rights of the people. in those decisions and that there's some supposed to be as you know as hamilton says in the federal list papers manifest violation uh or you know something inconsistent with the manifest tenor of the constitution that would you know authorize a judicial opinion rejecting a popular law or popularly enacted law uh that's not the judicial review we have now i don't think in many respects but yeah that's uh i i i i enjoyed that chapter.

Hamilton's essay in the Federalist Papers, which is a defense of the Constitution by its proponents, and it's just high-level propaganda on behalf of the Constitution, but it's really high-level, very thoughtful, and of course it's become a major document in its own right. But in 78, in Federalist number 78, Hamilton's dealing with the answer. federalist argument in New York that the state legislature is being superior to the judges, and there's no way that judges should have any authority to set aside a representative agent of the people. Well, it's a very powerful argument, and Hamilton has to deal with it. But the way he does is to diminish the representative quality of the character of the representative,

in the legislature. Who do they think they are? They think they're not the people. They're just agents of the people. And he said, so are the judges. They're agents of the people too. Well, that's quite an extraordinary argument. And that's his point, is somehow to create the impression that they're these agents

of the people. And the judges are simply other kinds of agents of the people, even if they aren't represented, elected. Well, there are this question. that follows from this that people begin raising almost immediately is to say, well, if the judges are agents of the people, then maybe we should elect them. And, of course, that's what happens. It starts in the Jacksonian period.

It's right up to our own time, about 39 states elect their judges. Now, that's not exactly what most judges like to be. They don't like being elected. In fact, Justice O'Connor spent the last years of her. her retirement there, she was really keen on ending elected judges because she felt that they had become politicians. But it is a consequence of Hamilton's argument, which he, of course, never anticipated that by making them agents of the people, then they, the logical thing was to elect them. Now, fortunately, the federal constitution doesn't allow for elected judges. We'd have to have a constitutional amendment to do that.

And our judges, which has become question, one of the debatable issues now, have life tenure with no qualifications whatsoever. Every other state in the, every state in the union, except my own of Rhode Island, has various limitations,

age limitations, elections, and so on of their judges. But the federal judiciary is really quite strong. Seems to be also what Hamilton's doing is he's he's dealing with this concept we were discussing earlier fundamental law and how the judiciary will be you know conceive of its role in that light

you know I guess the popular notion is that Marbury versus Madison advanced constitutional or judicial review is that do you do you think that's true it seems to be judicial review existed for a long time uh before that. I mean, the judges in North America had that understanding, certainly a part of the English common law system, but it's now you've got this written document to interpret. Well, I think it's not so clear to them at outset. They thought the judges might declare some laws unconstitutional, but it would be a rare thing and something that would happen very, very seldomly. I think the important development over those next 10 years or so leading up to the robbery decision is the notion that this fundamental law actually runs in the ordinary court system.

I mean, if you have a conception of fundamental law, how do you invoke it? How would the judges invoke it? I think what has to happen is a kind of domestication of this fundamental law. and bring it down, so to speak, so that it can run in the court system, so that the judge can actually treat it the way he treats a statute. Only it's a super statute. It's a super law. When they first confront it, they think of fundamental law is so fundamental and so awesome

that you can't invoke it in the courts. And what I think develops is the notion that it is law, and therefore it should be treated as law. And that's what, that's Marshall's contribution. He said a constitution is just law and we're going to, it's fundamental law, it's superior law, but we're going to invoke it in the court system. That I think is the important development for America. There's no country that quite duplicates that, brings its constitution,

so to speak, down into the court system and treats it as if it were running. in the courts as law. And I think that's what needs to develop it. It's not clear at all in, say, 1780s that fundamental law can be invoked in that way. There are instances that we go back to and look at, but they are just, no one's quite happy with the way things are developing.

They can't really anticipate what happens under Marshall's court and subsequent courts. That's striking as I'm listening to you describe this. That would imply a lot of things about how it should be handled as it's brought into federal court decisions, but the importance of doctrine, precedence, and trying to uphold some sort of veneration for the document itself, even as courts develop bodies of law. around it, I think. Well, I think that's what happens. They begin to say, look, we can interpret the Constitution the way we interpret statutes.

They go look at precedents. In other words, it's the ability to look at this very short document. And, of course, this goes on at the state level, too. The state judges are interpreting their own state constitutions in the same way. as just a kind of super statute, and it gives them a kind of flexibility. Otherwise, it would be very difficult to take this 8,000-word document and really use it the way judges have been using it over the last 200 years plus years. I wanted to move on to your chapter on slavery. I thought it was another instructive chapter.

Obviously, a lot has been said in the last few years about the American founding and slavery, including the 1619 project, has tried to advance the view that one of things that they were fighting for, fighting the British over, was the need to protect slavery. I'll just ask a basic question. Is this a slave owner's constitution? No, no, not at all. In fact, what's interesting about the revolution is the revolution makes slavery a problem for the first time in Western civilization and leads to a massive assault on the slave systems of the new world. The United States is the first state, the northern states. Now, it doesn't happen in the South, but the northern states almost immediately in 1770,

26 amount a massive assault on slavery, which had been legal in all of these northern states. And within, by 1804, all the northern states have abolished slavery. The first states in the history of the world, or at least the modern world, to abolish slavery. So the abolition movement is in the United States, not in England. England comes late to this. It's 1830s before they're abolishing slavery. So the New York Times has got it all backwards, the whole story. It's the northern states that mount this massive blow and inflict this massive blow on New World slavery.

From then on, slavery is a major, major issue in politics and won't go away and is a direct line to the Civil War. The southern states are put on the defensive and have to defend this infrastructure. institution, which is now being condemned by the bulk of the northern states. So it's just an extraordinary moment in the history of slavery. It's the United States that takes the lead in abolishing the slave trade as well. United States is the first state in the world to start attacking the slave trade, the international slave trade. I wanted to just think about we're in the constitutional convention. What's the status of slavery?

Is there a consensus amongst the members of that convention about what to do about it? How much consideration do they even give it? They give it a lot of consideration. And of course, there's a sense, I think, certainly in the northern, among the northerners, maybe among the Virginians, and of course, Virginians are important. Of course, nobody really at this point is defending slavery. Everyone knows that it's an evil that should be eliminated. And many people think that it's dying and natural death.

And certainly the Virginians do. And as I say, Virginians are a crucial state. What's happening in Virginia is fascinating because they don't grow cotton. The climate is bad. They are growing tobacco, but tobacco is exhausting the soil. So they begin growing wheat. Washington's doing this. This is in the late colonial period.

And they don't need the labor that they needed for tobacco to grow wheat. And so they have excess slaves, and they're renting them out in Norfolk and Richmond. And they're being paid wages, so to speak, in rentals. and this leads them, including Washington, into thinking that slavery is on its last legs, then it's going to become wage labor eventually. So there's a lot of optimism that slavery is dying. Now, they couldn't have been more wrong. We know what happened.

The invention of the cotton gin, which would have been invented by somebody, some engineer, one sooner or later, just allows the deep south to become very, prosperous growing cotton and slave and we have more slaves at the end of the revolution than we had at the beginning but there is so they would live with the illusion that it was was dying and in the convention i think there's a sense that that leads many of the delegates who want to abolish slavery to feel well it's not worth risking the union because georgia and south carolina make it very clear that they will walk out of the convention if there's any overt attack on the institution of slavery.

In fact, they're given 20 years to import more slaves because Article 5 allows for the importation of slaves for 20 years before you can abolish the slave trade. So these are concessions made. And the other concession, of course, is the representation, the three-fits, The northerners would like no representation of slaves in the South, and the South would like the slaves counted fully as a person, because that would give them more power in the state legislature. I mean, in the federal legislature in the House of Representatives, well, the compromise is three-fits, based on what they had experienced under the Articles of Confederation for taxation purposes.

So those are the compromises, and then the Fugitive Slave Act really is, it actually doesn't arouse much controversy in the convention. It's later that that becomes really the most searing, I think, issue between North and South later on the eve of the Civil War. But there's a sense, I think, in the part of the North, since slavery is dying naturally, we can we can certainly make these compromises in order to keep the union together. Otherwise, the thing will break up and the whole experiment will be destroyed. Well, I mean, once you have a national form and you put something together, then presumably that gives you a way as a nation, you know, maybe to change together, to grow together.

That, of course, is lost if you insist on prohibiting something that two states have said is key. Right, right. And they walk away. Then you've lost that influence. These are sorts of the things that happen in politics. In your discussion, just briefly, the three-fifths clause, you know, it's commonly said that was a dehumanizing gesture towards African slaves. You said it was a legislative compromise, which makes sense to me.

That's how we should think about it. No, of course, the North wanted no counting at all, of course, of slaves for representation purposes. That's the natural northern position, which would be, to not count them at all, the South wants to count the slaves as fully a person. They're just thinking in terms of representation. But I think it's important to understand that they were scrupulous in. having no mention of the word slave in the Constitution. Madison felt that that was important because for the future of this document,

again, anticipating that slavery would not be part of the future of the United States. Now, as I say, they couldn't be more wrong about that, but that's their dream, that's their illusion. And they lived with many illusions. So the revolutionaries had lots of illusions. I think we all have lots of illusions about the future. That's what makes history so interesting. I don't think that there's been any generation, in my experience, that foretold what was going to happen in the future. Was the—

We stumbled along. Just real briefly in this discussion, some have argued that the Electoral College was a concession to the South, to the slave states, entrenching their. power. Was that a motive behind the electoral college or is it more about a new basis of representation to elect the president? No, no. The electoral college comes from the fact that the Senate has two senators from each state and that comes from the great Connecticut compromise, the small states, and this has nothing to do with slavery. The small states simply would not accept Madison's proposal of proportional representation. in both houses. He was keen on that because he wanted no semblance of the states to infect

the Constitution. He thought that they would somehow, since people's loyalties were so strong towards their states, he thought that that would vitiate the Constitution. So you've got to keep the states out. Well, he loses that in July, in the great compromise, we call it, where the small states win and two senators from each state. That determines the electoral college, because the electoral college was a compromise. They didn't know how to elect the president. And they said, well, maybe he should be elected by Congress.

And they said, well, no, that would make him dependent on the Congress. Well, maybe one term for seven years. and they said, no, no, that's too long a term. So they went back and forth and they finally come up with the idea of let's have an alternative Congress, a duplicate Congress that has one duty only every four years to elect the president, and those electors will then go out of business. Well, that's what was intended, but of course, didn't quite work out that way. But that's the source of the electoral college.

It's the new genius kind of solution to this problem they had, of how you would elect the president. But it has nothing to do with slavery. It has to do with the compromise of allowing two senators for each state. And that's driven by the small states. You have a wonderful last chapter. Maybe we can conclude on it on the separation between the public and private sphere as being a key part of American constitutionalism.

Could you talk about that? Yes, that came from actually a historian that Florida State, a guy named Ray Flaasab, who wrote a book on the French Revolution dealing with the private ownership of public power. And he wrote me a letter saying, you know, this comes out of my radicalism book. He says, you know, you really have some sources that make it similar to the French Revolution. And so I decided to put all that stuff together and put it into an argument that would fit this issue of the private ownership of public power and how that ended. I think the revolution is a real revolution. And I think that's been ignored now in all of our debates.

There are various ways of looking at it. Toakville saw it as democracy, getting rid of aristocracy. Others see it as hierarchy being destroyed and equality coming. But what we have, and this links us up with the French Revolution, although the two revolutions take very different forms, is the emergency to modernity, a middle class are rising in America, in the north, not in the south. The south remains in the 18th century, and remains in the 18th century in some respects

right up through the 1930s. It's the north that changes and becomes modern, becomes a middle class society devoted to work. And that, and Toadville saw this. It's devoted to democracy, the abolition of aristocracy. And I think we need to start thinking about the revolution in those broader terms, because we're all wrapped up. We have many people who think of the

revolution as simply the war, as if it's just a colonial rebellion, when in fact, I think that chapter suggests that the revolution is far more bigger than that. I'd give you one example prior to the revolution the city of new york when it wanted its streets cleaned it's simply mandated that all shop owners and residents must clean the sidewalk and street in front of their house after the revolution the state of new york commissions the authorizes the city of new york to have a public works department that's modern that happens within a decade following the revolution It's this kind of development of modern state power that emerges. And Harvard and Yale and Princeton are all public institutions.

They're chartered by the state and their public institution and supported publicly. After the revolution, they become private institutions. The same is true of religion. Religion is probably the most graphic example. Religion was public, supported by the state. in many cases in the colonial period after the revolution, we have a separation of church and state. These kinds of developments, I think,

symbolize a real change in thinking, in the culture and in society that we haven't fully appreciated. And that chapter is designed to point to that change. Gordon Wood, thank you for that. that. Thank you for this discussion. We've been talking with the author of Power and Liberty, Constitutionalism, and the American Revolution. Thank you. That's it for today's episode. Thank you so much for listening to this Saturday edition of the Daily Signal podcast. Be sure to subscribe to the Daily Signal podcast on Google Play, Apple Podcast, Spotify, and IHeart Radio. And please

leave us a review and five-star rating on Apple Podcast and encourage others to subscribe. Thank you again. We'll be back on Monday. The Daily Signal podcast is brought to you by more than half a million members of the Heritage Foundation. The executive producers are Rob Blewey and Kate Trinko. Producers are Virginia Allen and Doug Blair. Sound designed by Lauren Evans, Mark Geinney, and John Pop. For more information, please visitdailySignal.com.