The Daily Signal - INTERVIEW | The Constitution and Formation of America's Government, Independence Day Series Pt. 3

Episode Date: July 4, 2023

The American Revolution served as a test to see if the 13 colonies could come together to “identity as a people, as a nation,” Richard Reinsch says. The question after the war was “had they actually become in effect one people and no longer 13 separate colonies or even 13 separate states?” After the war, the Articles of Confederation served as America’s frame of government, but it quickly became apartments that the articles could not successfully create a strong united country, according to Reinsch.  “The problem with the Articles of Confederation… is they don't create in effect any central government that can actually regulate, that can tax, that can conduct an authoritative foreign policy, [or] that can regulate commerce,” he said. The founding fathers acknowledged that a central government was needed to bring the diverse states together and create a sustainable union.  By the time the founding fathers “go to the Philadelphia Convention in 1787, there's a consensus throughout the 13 states that there's a problem, and that the weak and ineffectual government has to be remedied in some capacity,” Reinsch says.  Reinsch joins “The Daily Signal Podcast” for the third part of the show’s Independence Day series to discuss the crafting of the Constitution and how the document became the foundation of American freedom.  Enjoy the show! Hosted on Acast. See acast.com/privacy for more information. Learn more about your ad choices. Visit megaphone.fm/adchoices

Happy Independence Day and thanks for joining us here on the Daily Signal podcast this July 4th. I'm Virginia Allen. Today is the final day of our Independence Day podcast series. So far, we have talked about the lead-up to the Revolutionary War. That show went live on Friday. And then yesterday, of course, we discussed the Revolutionary War itself, some of the key players and events during the war. And today, we're going a step further to examine the forming of a.

America's government. Heritage Foundation's Richard Reinch joins us on the show today to discuss the crafting of the Constitution and some of the sources and ideas that inspired the document. Stay tuned for our conversation after this. We get it. With big media bias, it's hard to find accurate honest news. That's why we put together the Morning Bell newsletter, a compilation of the top stories and conservative commentary. To subscribe, just head to Daily Signal. dot com slash morning bell subscription or visit dailysignal.com and click on the connect button at the top of the page. It is my pleasure today to be joined by the director of the B Kenneth Simon Center for American Studies and the AWC Family Foundation fellow at the Heritage Foundation, Richard Reinch. Richard,

thanks so much for being here as we celebrate July 4th. Virginia, thank you for asking me. This is wonderful. Well, I'm excited because we were in our third part. here in our installment as we do a series for July 4th for Independence Day. We have, of course, talked with historians about the founding of our country in the aspect of the Revolutionary War, both that buildup to the war, the signing of the Declaration of Independence, and then, of course, the war itself. So we were now at the point where the Revolutionary War has officially ended September 3rd, 1783, with a sign of the war.

of the Treaty of Paris. And now the colonies are independent and the constitutional Congress had already crafted the Articles of Confederation. The articles were adopted by the Continental Congress several years before the official end of the war. How was the power and the authority divided among the colonies within the Articles of Confederation? What did that ruling structure kind of looked like? That's an interesting question. The Articles of Confederations, is it's almost like a league of nations arrangement in a sense of United States, no longer the colonies, but United States who come together really for one purpose, and that is to defeat the British. The question is in the coming together part, both leading up to the Declaration of Independence,

during the war and after the war, have they actually become, in effect, one people? and no longer 13 separate colonies or even 13 separate states, but they now have an identity as a people, as a nation. And I think the answer to that question is really yes. We should remember none of them seeks to do business during the Revolutionary War as separate states conducting, say, their own foreign policy or pursuing their own interests the way a state would. They do, for that purpose, remain united.

the problem with the articles of confederation, and this goes to, you know, say the need to come together to fight the British rather quickly, is they don't create, in effect, any central government that can actually regulate, that can tax, that can conduct an authoritative foreign policy, that can regulate commerce, that can, in effect, ensure that the inevitable factions, squablings, and disputes that are, that are going to go on, and this is, of the East Coast, right? This is a lot of territory. These people are, in many respects, similar, but in some respects, diverse, can actually hang together and hold together. And you do need a central government for that. So it's weak and ineffectual government at the level of the Articles of Confederation proves to be the overarching problem that leads to a lot of other problems that we can discuss. So who were some of those key players who were seeing the problems and saying, this isn't working, we need something different than the Articles of Confederation?

I think by the time they go to the Philadelphia Convention in 1787, there's a consensus throughout the call of the states, the 13th state, that there's a problem and that the weak and ineffectual government has to be remedied in some capacity. major players, George Washington, James Madison, Alexander Hamilton certainly stand out. There's correspondence, really fascinating correspondence between Madison and Washington on the problems that they're experiencing. One thing that emerges is there's a treaty, the J treaty so-called, that's never actually ratified by the Articles of Confederation Congress. and it deals with this sort of weak government decentralizing impulse, radical decentralizing impulse, because it was in effect to deal with the problem of Spain, which is still in Florida.

And it secured Spain, gave them navigation rights, exclusive navigation rights over the Mississippi River. And who automatically objects to that? Well, the southern states, because they actually want to use it to get goods to market through New Orleans. And that's still jeopardized. So they start to oppose it. And, of course, what can the center do? of the Articles of Confederation. The problem is they can't compel agreement

because ultimately only one state has to object. And if one state object, it stops any action by the government. And so Rhode Island is that state in many cases. They have tremendous debt owing from the Revolutionary War that they need to pay. They can't raise the taxes to do it. And they can't compel the states to do it. And in effect, they're bargaining with elites from the states to get them to fulfill their obligation.

to provide revenue to the center, and they can't do it. So they need a way to tax citizens directly and to regulate citizens directly. And so this is a huge part of the push. And, you know, this week in ineffectual government, can they deal with rebellion? Shea's rebellion is a tremendous moment that happens originating in western Massachusetts, marching on ultimately the center of Massachusetts because of debts that they're authorized, these farmers feel like they're being unjustly told to pay. And there's this question of can we actually defend ourselves from them?

So we need some sort of government, some sort of stronger power to do that. And that's really the push. There's the Annapolis Convention. And then there's this idea that, you know, it's the Articles of Confederation could only be amended unanimously. And so there's this idea, well, how do we amend it? And I think the leaders, those who are like Hamilton, Madison, and others, you know, one thing you could say is they violate the rule of law by going outside the structure of the Articles of Confederation, by even appealing to representatives to the New Philadelphia Convention to go outside of the instructions they receive from their own state leaders. The other way to think about this is it's actually a movement, a moment for popular sovereignty and to put this thing before the people and see, well, what type of government do you want? and here's this document we have approved.

We've debated it. We've ratified it in secret during 1787 from May to September. We've come up with this agreement, stronger powers in the center, very strong presidency. The Congress is really the central institution, but it's limited. And we also have this issue of taxes and representation that we've come up with. But do you approve it? And then, of course, another innovation of many innovations that American constitutional from what it existed here to there to fore was this idea of ratifying conventions.

So not just not just the Constitution being a creature of statute or a creature of a state government or pre-existing government, but the actual creation of ratifying conventions, representatives of the people who then meet to create a constitution that itself cannot be amended easily and is not changeable in the manner of statutory. law, but it's fundamental law, and we'll sit over statutory law. That's definitely an American innovation here on constitutionalism and Republican government of many things we could discuss. And why was that meeting taking place with the crafting of the Constitution? Why was that happening in secret? Well, it happens in secret. You know, we think of sunlight. We'd say, you know,

sunlight is a disinfectant, and we want everything to be public and accountable. and there's certainly a case for that. And we've grown up with C-SPAN. We even want courts and TVs and judicial courts. Another way to think about this is in momentous times issues, you have entrusted representatives to put together a fundamental document of law governing this new nation that most people think is needed. There is argument over representation.

who's going to count, who shouldn't count. There's going to be arguments over the powers that should be given amongst other issues. But you want to entrust them to actually talk to one another and to start at point A and get to Z on controversial issues and be able to put forth arguments and know that it's not going to appear in the newspaper the next day or that it's not going to be used against them unfairly, quoted out of context, et cetera, be used to stop the proceedings. So I think that's why you go to secrecy. And that's actually, that's really not forward to the American tradition.

Much of Congress has operated in that way in many respects, congressional committees, et cetera. So that's why you do that. And it's fundamentally about there's a good that's associated with deliberation amongst people who are willing to be thoughtful, humble, learn and listen to others, maybe change their position, maybe help other people change their positions, and come to an agreement. So I think that's ultimate why secrecy matters. You can say low ground, they just want to keep it from the public and they don't want anyone to know what they're doing because it's a cabal. It's a conspiracy or something like that.

Some anti-federalists will make some anti-federalists will make that charge. And I think that's not the most accurate way to understand what they're doing. And it certainly doesn't take into account the momentous questions that they're dealing with. And this need to make the country work and not fall apart. There's a huge national security question. If they can't come to a strong central government and agree on what that should be and what it should look like, so the country just fly apart. And if the country flies apart, then you're going to be inviting foreign powers onto the continent, once again, for various power needs.

So this is a severe and important question that they're debating. So as the founders are meeting and they're having these debates and they're talking about the crafting of the Constitution and what should be included and what shouldn't, what are the key debates that emerge? What do we know about some of the controversies that the founders had among themselves about what should and shouldn't be in this document? So I think we just, you know, one thing is there's this idea in America. And I think it goes back to the colonial charters that they receive from the king that things need to be written down. And so as I was mentioned earlier, there's this idea of, of, and it really begins in 1776,

after the Declaration of Independence has passed, the now states realize that their colonial charters are now defunct, right? We've declared our independence of Great Britain. So you have a raft of state constitution making. Virginia's is one of the, they are moving in this direction of having a separation of powers, having a system of direct representation,

which is one of their major points of contention with the English Constitution, has this system of indirect representation. You know, they say to the colonist taxation without representation, that's, you know, nonsense. Everyone is represented in the English Constitution. We have districts with actually no constituents in the House of Commons. So what? You're still represented.

The American experience insists on representation and that you're actually listening to the people you're representing. You have contact with them and you are in some level like them. that's one thing. The separation of powers is another thing that comes to be insisted upon that you're going to actually have executive and representative bodies separated. And then, you know, judicial body is, you know, also going to be separated large. I mean, this is explicitly stated in the state constitutions. And then finally, the idea of the Constitution itself is just, it's just, it's higher law. It's a governing law. And it should be, uh, embodied. And it should be, uh, embodies. in sort of the people's sentiments, their loyalties, and it's not easily changeable. That's sort of, you know, Madison, the Federalist papers, Federalist 49, I think it is, is replying to Thomas Jefferson.

Jefferson's open to revolution every 20 years or every generation. Madison says, no, we want to venerate the Constitution. We want it to have to be long-lasting. So those things are of decisive importance that we have to just reckon with first. These are parts of our constitutional tradition. granted. Of course, progressives want to change those ideas in many respects or undermine them, but this is really a part of our heritage. And federalism itself is another American innovation that you could actually have two different governing authorities over the same

territory with different spheres of authority. That's new. Contentious issues, representation is one itself. Who's going to count how larger district's going to be? How do you prevent a cabal or elites that's the anti-federalist charge from sort of running over the people? And then, you know, the claim of are the people actually going to be represented? And what kind of a document is this? I think what's interesting is we don't have three estates. We don't have different estates in America the way you do in, say, Britain or France. You have just the commons.

You have just people, democratic people who are supposed to be equal under the law. You want to make sure that deliberation can happen, and you do that, and they come up with the system of that. This is a huge part of the convention. Direct body closest to people is the House. The Senate is going to be elected by state legislatures, and then you have an executive that's going to emerge through it. It's thought it would be an electoral college. It's deliberative and will be somewhat insulated from the popular vote. That doesn't actually pan out.

And all of that is designed to reach deliberative government. that is not merely a democratic mob, nor is it an elite, but that the voice of the people could be heard over time through that governing process. So I think that's, and then, you know, those issues are crucial as they're thinking about this. And, you know, something else to consider, too. You're going to have the strong federal government.

It's going to have a claim to regulate commerce nationally. It's a tremendous part of this. It's going to have the ability, Article I, section 10 to stop the states from squabbling with one another and trying to extract rents from one another over each other's commerce. But you're also going to have a federal government that limits itself. And that's tremendous. It's going to give itself power. It's an enable itself to have power. And it's also going to restrict its power. And it's going to assume, assuming in that, is that Americans are going to have a pretty healthy civil society where most of your life

will be lived apart from politics and government power but is in your neighborhood, your family, your church, business, your farm interactions with neighbors. That's where most of your life should be lived and the government wants to protect that. And that's part of the goodness of a constitutional order. And all of that is sort of being debated in the convention. itself. And what were the documents that the founders were drawing inspiration from? As they considered the writing and the crafting of the Constitution, were they looking at other models and saying, you know, we'll take this from, you know, this nation's constitution or we'll take this from over here?

Yeah, I mean, you know, something that I've emphasized, too, I mean, when we say the Constitutionist itself is going to be separate from the workings of statutory law and the ordinary give and take of politics, That's a distinction from the English Constitution. English Constitution is unwritten to this day, and Parliament is assumed to be able to have the power to change it. So it's, and it's sort of a collection of documents over the years. So the English Constitution, in many respects, is of no use in that regard. And then separation of powers, right? The English parliament is going to come to a position where the executive is actually in the parliament.

And the crown is a different part of the Constitution. So separation of powers to something else. One, you know, something that they draw from, Madison does this explicitly in Federalist 10, which is to the extent anyone who read the Federalist Papers, they've usually read Federalist 10. Madison draws from David Hume, who was a major theorist of the Scottish Enlightenment,

that contrary to Republican theory at the time, which assumed a large country was a problem. And the founders and the anti-federalists in particular, those who are opposed to the Constitution. Get this from Montesquieu. And Montesquieu saying, only a small republic. Anything else will become something else. It will become an empire.

It become a centralized authoritarian state. It might look like a republic, but it won't be, in fact. And so there's something about smallness and the virtue of the smallness of neighbor, knowing neighbor, et cetera. That's good. And Madison flips out on its head. with David Hume. And he says, no, if we expand out the spheres of representation, the numbers of interests and ideas and people who have to be represented, that should stop faction. Now, because it's a

majority rule, majorities will ultimately govern in our Republican order. But how that happens, the process that happens, and the roadblocks that could be thrown up to, say, unjust majority rule are going to be many. And the hope for is that somewhere in that process, of interest blocking interests. Other people step in and put forward arguments and ideas that are actually more just, that appeal to factions to actually do things in favor of, you know, so a faction is something dedicated to violating natural rights

that would actually support individual rights, property rights, commerce, good things. And so that's a huge part of the contention. Within the separation of powers, There's this, you want to have political competition. You want to have competition between the spheres. So you want to give people, this is a Federalist 51 amongst others, you want to give people the authority to represent their institutions while within the federal government and to do so

directly against other institutions so that you don't get, because Publius defines tyranny as legislative, executive, and judicial power being held in one set of hands. That's really ultimately the problem now with our administrative. state as those powers are held by federal agencies. So that's a huge part of the contention. And then also how else could how else might you limit majority rule? And that's this idea of auxiliary precautions that's used in Publius. And that is either the president, maybe the Senate, maybe the federal judiciary can step in and defend the constitution, defend its rights and its provisions, its limitations on power against a mob or those who may have captured the government for a while

and to stop them from doing that. So those are questions of power and restraint, are fundamental questions of power and restraint run throughout the Philadelphia Convention. The executive is new, as most of the state constitutions had really abolished or done away with the strong executive because of their encounter with the British monarch and his pariah. cognitive powers or sort of seen as arbitrary. But yet our Constitution has a strong presidency. His powers are, you could say, on paper, are going to be filled in through practice.

And they're also looking to Washington. They don't fear Washington's rule. But what comes after Washington is an interesting question and how the presidential powers themselves are going to be limited or enlarged within practice and press. and the overall competition between the branches of government is something that a lot of anti-federalists object to, but it has to emerge through time. But fundamentally, it's Congress. Congress holds the fundamental powers to really break the government if it so chooses. And, you know, we see that in various ways now, though we have kind of a weak Congress for the last few decades, they still hold most of the

constitutional weapons if they choose to use them. How long did it take from beginning to end to complete the writing of the Constitution? And then when it was done, how did they spread the word to the colonists to say this is the new document that we have? Well, you know, so one of the things, it's the people start showing up, if I'm not mistaken in May for the Constitution Convention. I think they don't get a quorum until early June. And then they spend that summer together debating it and going through different motions of how the Constitution, what it should do on these basic structure questions and questions of power.

And then there's a committee of style. And they are basically sort of to take these agreements and then turn it into the written constitution itself. And then it's approved by those who attend the convention in September. One of the things they want to do is they don't want to go back to the state legislatures to approve this. And so what the federalists are able to do, and we should say the Constitution is, you know, it's approved rapidly by these state ratifying conventions until you get to the major states that really count like New York and Virginia. it's a more close run thing. But they want to set the rules to go around the state, the state legislatures for, I think, you know, for obvious reasons. And they want to actually put it in front

of a convention. And they want that convention to be, to see itself as something that the people themselves have authorized and will represent them and think fresh about these questions as opposed to the existing state legislature. So that's, that's their thinking. It goes. straight from the Philadelphia Convention to the Continent, not the Continental Congress, the Articles of Confederation Congress, and there is issued the call that each state would appoint a ratifying convention, and they do. New York is very close. Virginia is very close. The question becomes, you know, they need to get nine out of the 13 states. So you roll up close to nine, and you've built up a tremendous momentum, and then what might happen. And then, you know, you see yourself sitting

outside of this thing. You don't want to be sitting outside of it. North Carolina does that for a while, so does Rhode Island. They eventually come back in because it's sort of an untenable situation to be in. So that's roughly the process and how it happens. Vio, do questions inside Virginia and New York, when is a call for Bill of Rights? One is a concern of a large central government running roughshod over the people. How are the people going to be represented? Is it going to be a financial elite that's going to take over? Is this sort of where we're going to be headed?

Amongst other questions, but those are sort of central ones. And those state ratifying debates themselves are interesting to read through to get a better handle of what was in their minds on the process of constitution making. Well, and Richard, we so appreciate the work that you do at the Simon Center. For any of our listeners who want to go deeper into just our founding and the founding principles and this history, the Simon Center at the Heritage Foundation is such a great resource. All our listeners can visit heritage.org to find your work. But happy July 4th, happy Independence Day, and thank you so much for joining us.

Happy July 4th for you. Thank you so much. This is great. Well, thank you all so much for joining us on this July 4th for this final edition. of our Independence Day series. We hope you enjoyed that conversation on the Constitution. And thank you so much for being a part of the daily signal and letting us into your lives here on the July 4th holiday.

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But thank you all so much for joining us today. We hope you have a wonderful Independence Day. Enjoy some good food, some time with family, maybe some fireworks. All right. We'll see you right back here tomorrow morning and happy July 4th. The Daily Signal podcast is brought to you by more than half a million members of the Heritage Foundation. Executive producers are Rob Luey and Kate Trinko. Producers are Virginia Allen and Samantha Asheras.

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