What were the key texts, authors, and sources the framers looked to when drafting the Constitution? Scholars Richard Albert of the University of Texas at Austin, Jonathan Gienapp of Stanford University, and Colleen Sheehan of Arizona State University explore what books were on the shelves of founders like James Madison and Thomas Jefferson, and where some of the ideas behind the Declaration of Independence and the Constitution came from, in a conversation moderated by National Constitution Center President and CEO Jeffrey Rosen. They discuss the influence of ancient and contemporaneous philosophers, thinkers, and writers—including Plutarch, Aristotle, Montesquieu, Jean-Jacques Barthélemy, John Locke, Emer de Vattel, William Blackstone, David Hume, and more.
Or, listen on Apple Podcasts or Spotify.
This episode was produced by Jackie McDermott, Tanaya Tauber, Lana Ulrich, and John Guerra. It was engineered by Kevin Kilbourne.
PARTICIPANTS
Richard Albert is professor of World Constitutions and Director of Constitutional Studies at the University of Texas at Austin. He has authored or contributed to over 20 books, including Constitutional Amendments: Making, Breaking, and Changing Constitutions. He is also the Book Reviews Editor for the American Journal of Comparative Law, a Distinguished Academic Associate at the Centre for Law & Religion at Cardiff Law School, and holds fellowships at Center for Jurisprudence and Constitutional Studies at Kabarak University in Kenya and the Clough Center for the Study of Constitutional Democracy at Boston College.
Jonathan Gineapp is assistant professor of history at Stanford University. He is the author of The Second Creation: Fixing the Constitution in the Founding Era, which was awarded the 2017 Thomas J. Wilson Memorial Prize from Harvard University Press and the 2019 Best Book in American Political Thought Award from the American Political Science Association and was a finalist for the 2019 Frederick Jackson Turner Award from the Organization of American Historians.
Colleen Sheehan is the Director of Graduate Studies at the Arizona State University’s School of Civic and Economic Thought and Leadership. She is author of The Mind of James Madison: The Legacy of Classical Republicanism and James Madison and the Spirit of Republican Self-Government. She is a former member of the PA House of Representatives, and was also a contributor to the National Constitution Center’s initiative, A Madisonian Constitution for All.
Jeffrey Rosen is the president and CEO of the National Constitution Center, a nonpartisan nonprofit organization devoted to educating the public about the U.S. Constitution. Rosen is also professor of law at The George Washington University Law School and a contributing editor of The Atlantic.
Additional Resources
- Colleen Sheehan, The Mind of James Madison: The Legacy of Classical Republicanism
- Donald Lutz, The American Political Science Review, “The Relative Influence of European Writers on Late Eighteenth-Century American Political Thought”
- Stanford Encyclopedia of Philosophy, "Baron de Montesquieu, Charles-Louis de Secondat"
- Montesquieu, The Spirit of the Laws
- Jean-Jacques Barthélemy, Voyage du jeune Anacharsis en Grèce
- John Locke, Two Treatises of Civil Government
- John Locke, An Essay Concerning Human Understanding
- Jonathan Gienapp, The Second Creating: Fixing the Constitution in the Founding Era
- Federalist 37
- Emer de Vattel, The Law of Nations
- Wikipedia, Luther Martin
- Federalist 49
- Plutarch, Eminent Lives
- Aristotle, The Politics, Book V
- Thomas Jefferson, Letter to Henry Lee (1825)
- William Blackstone, Commentary on the Laws of England
- Edward Coke, Selected Writings
- Michael McConnell, The President Who Would Not Be King: Executive Power Under the Constitution
- National Constitution Center, We the People podcast, "President Biden's Executive Orders"
- John Locke, The Fundamental Constitutions of Carolina (1669)
- Jane Austen, Emma
- David Hume, Essays Moral, Political, and Literary
- Polybius, The Histories
- Bryn Mawr College, Quakers and Slavery, “John Woolman”
- Richard Albert, Comparative Perspectives on the Fundamental Freedom of Expression, "The Unamendable Core of the United States Constitution"
- Aristotle, Nicomachean Ethics
- Abraham Lincoln, Selected Speeches
- James Otis, The Rights of the British Colonies Asserted and Proved
- The Anti-Federalist Papers
- The Articles of Confederation (1777)
Stay Connected and Learn More
Questions or comments about the show? Email us at [email protected].
Continue today’s conversation on Facebook and Twitter using @ConstitutionCtr.
Sign up to receive Constitution Weekly, our email roundup of constitutional news and debate, at bit.ly/constitutionweekly.
Please subscribe to Live at the National Constitution Center and our companion podcast We the People on Apple Podcasts, Stitcher, or your favorite podcast app.
To watch National Constitution Center Town Halls live, check out our schedule of upcoming programs. Register through Zoom to ask your constitutional questions in the Q&A or watch live on YouTube.
TRANSCRIPT
This transcript may not be in its final form, accuracy may vary, and it may be updated or revised in the future.
Jackie McDermott: [00:00:00] Welcome to Live at the National Constitution Center. I'm Jackie McDermott, the show's producer. Last week, NCC president Jeffrey Rosen was joined by scholars for a program diving into the Founders' Library, the key texts that the founders consulted when drafting the Constitution. Here's Jeff to get the conversation started.
Jeffrey Rosen: [00:00:23] Ladies and gentlemen, welcome to the National Constitution Center and to today's convening of America's Town Hall. I am Jeffrey Rosen, the president and CEO of this wonderful institution. Friends, this is a very special convening. We are here to discuss the Founders' Library, and I am thrilled to share with you that the National Constitution Center is about to launch an exciting initiative, to put a curated version of the Founders' Library online. We are going to select the texts, the primary texts, that influenced the founders, from the classical enlightenment and Scottish enlightenment and British civil law period. We're going to put the great texts of the founding themselves. And then we're going to put voices from the second founding, Frederick Douglass, Ida B. Wells all the way up to Martin Luther King, so that learners from around the world can engage with the primary text on their own, understand the great ideas that influenced the founders and the Constitution and the American mind and debate their significance and meaning.
So, it's so great to convene today three of America's leading authorities on the intellectual sources of the American idea, on the great ideas that influence the founders. So I'm going to ask them to identify some of the major sources. And then I'll ask you, as part of your homework, all of you who are listening, to make suggestions about which texts you think we should include in the Founders' Library, so that we can inform this hugely meaningful project as thoughtfully as possible. So now let me introduce our panelists.
Richard Albert is professor of world constitutions and director of constitutional studies at the University of Texas at Austin. He's written or contributed to over 20 books, including "Constitutional Amendments: making, breaking, and changing constitutions", as well as "The Foundations and Tradition of Constitutional Amendment." Jonathan Ginneapp is assistant professor of history at Stanford. He's the author of "The second creation: fixing the constitution in the founding era," which won the Thomas J. Wilson Memorial prize from Harvard University Press. And he is also widely published on American history. And Colleen Sheehan is director of graduate studies at the Arizona State University's school of civic and economic thought and leadership. She is the author of-- I have to call it marvelous because it's so influenced me and I'm so excited to share it with you-- "The mind of James Madison: the legacy of classical republicanism and James Madison and the spirit of Republican self-government." She's a great friend of the constitution center and was a contributor to national constitution center's Madisonian constitution for all initiative. Thank you so much for joining Richard Albert, Jonathan Gineapp, and Colleen Sheehan.
Colleen, I will begin with you because in your wonderful book on James Madison, you discuss the intellectual sources of Madison's notes on government and say that, as he was writing them, he set out to distill the wisdom of the ancient and enlightenment thinkers, heavily laden with citations to classical authors. He deeply engages Montesquieu whose Spirit of the Laws was one of the most cited books in the founding era. In fact, according to a pathbreaking study was the most cited decided book during the founding era. But at the same time, Madison took issue with aspects of Montesquieu, based partly on his reading of a book by Jean-Jacques Barthélemy, "Voyage du jeune Anacharsis en Grèce." I won't read the rest of it in French, but it's a book you teach us about. So, tell us about the influence of Montesquieu and these other thinkers on Madison's notes.
Colleen Sheehan: [00:04:19] Well, thank you very much, Jeff. And thanks for having me at NCC once again, I always look forward to these conversations with you and the wonderful guests that you bring on. This is the intellectual activity about the constitution and our time, right? So meta-constitutionalism, in a sense. So, Don Lutz is the one who wrote that article a number of years ago and published it in the American Political Science Review. Lutz is a, actually a political theorist, but what he did was he counted, he did quantitative analysis and he found out that all of this talk about Locke being the most influential on the American founders, at least if it had to do with numbers of citations, Montesquieu far outweighed Locke. And I think that's, I think it's true. And I think it's partly because Montesquieu's work is much more complex, in terms of politics. So Madison, he writes a booklist, he writes up a list of books that he's going to transport when the capital moves from New York to Philadelphia during the first session of Congress. And that's why we know some of the things he's looking at then, he writes up a list. But he doesn't have everything he wants. And of course, who does? None other than Thomas Jefferson, who's renting a place in Philadelphia, but he can't help himself. He's the HGTV of the 18th century. He's got to remodel this rented place and add a book room.
And so Madison is spending a fair amount of his time over borrowing books from Jefferson, the books that he didn't bring with him. And he's writing these notes, which I call Notes on Government. In which he says in these notes that this is a continuation of the thought about Republican government, that he had begun in the Federalist papers and he's building on that. And he starts out these notes by citing Montesquieu. He's the very first salvo of these notes is his citation of Montesquieu citing Plato. So right from the start, we know that this is a broad enterprise. This isn't simply about the removal power of the executive or something like that. One of the issues that they're dealing with in the first Congress, this is about the big picture, a Republican smaller, Republican theory.
So, and then he also writes a little piece called spirit of governments, which is all about Montesquieu. And it's about that Montesquieu has a glimpse of the true essence of politics, but he doesn't really get it. He's not, Madison says, in politics, what Newton was in science; rather, he's more second rate. He's a bacon. Madison says. Interesting, interesting. So what is it that Madison thinks Montesquieu got right? And what does he think he got wrong? Well, he totally agrees with Montesquieu about separation of powers and auxiliary precautions. You know, the part of spirit of the laws that the English government is the model of the conflict theory of politics, checks and balances, federalism, and so forth.
He thinks what Montesquieu missed was the force of public opinion, and how that can make a huge difference, even in a modern, large, commercial society. He thinks Montesquieu gave up on character formation. He couldn't find a way to do it in this large, modern, commercial society. And so Montesquieu finds these other ways to make politics work in the modern world. And Montesquieu says, remember this from spirit of the laws, "it doesn't matter if people reason, well, or reason ill only that they reason." In other words, that they have opinions. And so we're not going to worry too much what they think or what their character is or what their ethos is. And it's not that Montesquieu doesn't care about those things. He can't find a way to make it work in contemporary politics of the time. Madison thinks he's found the answer to that. And he finds it in the thought of some of the people who came after Montesquieu. The thing that Montesquieu had a glimpse of, that Gibbon might've had a glimpse of. That the historian Robertson, the Scottish historians had a glimpse of.
But later more towards the 1770, 1780s that people like Putshay writing for the encyclopédie méthodique, and this fellow Barthélemy, who writes an eight volume history, a travel history, all througA ncient Greece, that took him 30 years to write that's replete with thousands and thousands of citations, and its particularly to Aristotle that Barthélemy,points that Madison lands on. So Madison is returning to the idea of, is it possible to find a way to, where the citizens become Republican citizens. Can we educate citizens in the spirit of Republican government? That's his challenge.
Jeffrey Rosen: [00:09:36] So fascinating. Thank you for that marvelous, a tour de force of the distillation of Madison's influence and refinement of Montesquieu, and the fact that he went back to Aristotle on the classics to teach citizens through public opinion, to use their powers of reason to master their unreasonable passions or selfish, ego-based emotions was a central idea that he took from Aristotle and that other founders also returned to in their reading of the enlightenment thinkers, who themselves cited of the classical thinkers. So that leads me to ask about not the second, most, but third, most cited book/author, in the period. And that was John Locke. Not to bury the lead, Blackstone was second most, but I want to put Locke on the table next because he's so philosophically important. And Jonathan Gineapp, I'd love it if you would tell us about the influence, not only of Locke's second treatise on government, which is familiar to some of us who studied it in law school as I did, but also his essay concerning human understanding, his moral philosophy, which centrally emphasized this duty of using our powers of reason to master unreasonable passions. And it turns out that the essay concerning moral understanding, according to some scholars, was even more influential on, for example, Jefferson's conception of the pursuit of happiness than the two treatises was. So, tell us about Locke and the founding.
Jonathan Gineapp : [00:11:04] Sure. So, thank you very much for having me. This is a wonderful occasion and I'll do my best to follow Colleen's tour de force there on Madison. So there's much that could be said about Locke and the founders, obviously enormously important. Where we tend to focus on Locke is, as you said, when we think of the second treatise of government, which offered a right of resistance, a theory that was sort of unrivaled in its sophistication and usability for understanding the circumstances under which a people in a political community could rightfully rebel and could make that case to the world, which ends up being the case that Americans make famously in the Declaration of Independence. And they draw heavily on Locke, and so many of the other thinkers in the English tradition who are following in Locke's footsteps to try to understand when it is that power has grown tyrannical and what informs that.
But you mentioned the essay concerning human understanding, which is in many ways of greater interest to me in my work, in particular because of what it says in book three, which is one of the most sophisticated discussions of the relationship between language and political and social life, political and social power, that you could have found anywhere in the 17th or 18th century, and its influence on the founders is very clear. Nobody more so than James Madison, who clearly was deeply influenced by book three. And there's lots of different things that I can say about this, but what I'll emphasize in the interest of brevity is that American constitutionalism we've always associated to some degree with its written-ness. The British constitution is famously unwritten, mostly unwritten customary. Lots of that thinking carries over into the American constitutional imagination, but they begin writing constitutions and people begin focusing on the power of the written word. And this is only reinforced by kind of the growing prints here, the sort of explosion of newspapers and print culture that only grows out of 1776.
So, there's a lot of meta-constitutional discussion about not just what constitutions are saying, but how they're saying them. And this becomes really important when the federal constitution goes public. And the Federalists are presenting this daring idea to not just revise the Articles of Confederation, but construct something really new that in certain ways seems to challenge some of the accepted principles of the revolution that had undergirded the state government.
So, anti-federalists those who were opposed to this constitution, criticize it in all these different ways. But one of the things they criticize is that it is written in this ambiguous and vague way. It uses all these terms that can be exploited and abused. It's not precise enough. And there's no better response to this than Madison in Federalist 37. You can figure out a lot by a Madison and a constitution scholar by their favorite Federalist paper, mine unapologetically as Federalist 37. So, I'll put my cards on the table. I imagine Colleen has a different choice. But, Federalist 37 Madison basically makes this argument largely derived from Locke's third book in the essay concerning human understanding about the nature of language itself and its imperfections.
And basically he says no language is so copious to supply words and phrases for every complex idea. As a result, any constitution, any written constitution that human beings created will by necessity have a certain amount of ambiguity in it. To harp on this as simply to misunderstand what human beings are, but what this suggests, and this gets back to another central feature of Locke, which was emphasizing experience, and what you could do with experience, Madison says, this is not a problem. There's lots of things that we don't know about the constitution just yet, only experienced living under it and putting it into effect will teach us that. You anti-federalists have missed the deeper moral of this idea of linguistic ambiguity, but Locke, Madison is suggesting, combined with our experience in government, suggests that this is not a problem, but actually something we can work with.
We can't have it any other way. And it's not an issue. We will work with the problem of linguistic ambiguity. We will create a politics around it, hopefully a rational one, following in some of the things Colleen said, that will mitigate its harms and promote the kind of rational deliberation that is essential to republicanism. So, the essay concerning human understanding and particularly what it says about the relationship between language and politics and constitutionalism, I think is enormously important and is really one of the central preoccupations of not just Madison's constitutional understanding, but many of his peers as well.
Jeffrey Rosen: [00:15:58] That was wonderful. I'm so glad that you both taught us about Locke and also specified book three, and that you gave us your favorite Federalist papers and we're taking notes of all of this and when we curate the Founders' Library, I think we'll put in particular papers in particular books of these sources so that we can have excerpts that people can really learn from. And it was great to have both of those called out. Richard Albert, tell us about the international law theorists, who the founders quoted. They included Vattel, who's number 29 on the list of the most cited thinkers and also Grotius and Puffendorf and all these names that may not be familiar to us today, but they were central and they were cited. And tell us about what they said and which founders they influenced and why.
Richard Albert: [00:16:48] Well, thank you so much. It's such a pleasure to be here with all of you. And I just want to note that I'm standing on indigenous lands of the Tonkawa here in Austin, and I'm so grateful for their stewardship of these lands that make it possible for me to live a life of learning and discovery here in Austin. So, Vattel. Vattel writes the book, "the law of nations" in 1758 and he writes about a number of different subjects. He teaches us about treaties, about federalism, and also about relations with indigenous peoples. So, I'm going to say a bit about two points. One is about Vattel on federalism and who he influenced, and then also Vattel on relations with indigenous peoples in the United States.
So on federalism, Vattel refers in the Law of Nations to Switzerland, where in Switzerland, you have cities that are ruled by a crown prince, and then they make these relationships with the subnational entities called Cantons there, and they can act with permission of the crown prince. And so you see this as the beginnings of a model of federalism that is ultimately adopted in the United States because you have the sovereign, the national government endowed with the authority coming from the people, authorizing the subnational entities, the states, as we call them here, to exercise a limited jurisdiction within their sphere of authority. Now, I think an important point to note is that sovereignty is not divisible. So it's not the idea that there's overlapping sovereignty. It's that you're sovereign in this sphere. And your sovereign in that sphere. And so this, you see, begins to influence the founders as they're debating what will be in the written constitution that Jonathan spoke about a moment ago. So Luther Martin in particular, draws on this idea of indivisible sovereignty when he's writing about or advocating for state sovereignty in a Federalist model at the convention. So, you have the idea that national governments, the one that's being created, is going to have powers, yes. But not too much power because the fear is that if you give the national central government too much power it's going to arrogate to itself even more.
Second point about federalism that came from Vattel that influenced the learning that Luther Martin shared with his colleagues around the table in Philadelphia is that the states are going to be equal sovereigns. And so that entails an equal power of vote. And so this, you see, influences something, for example, like the equal suffrage clause in Article Five of the Constitution, that cannot be amended without the consent of the state whose representation is going to be diminished in some way. I also mentioned indigenous peoples and Vattel was also influential there because the tell writes about this idea of a dependency. A dependency is a nation that's dependent on a state, and it is governed by that state and its relations with others outside of the state. And so you see how this begins to explain how the founders treated indigenous peoples through the Treaty Clause and the Commerce Clause. So, indigenous peoples would enter into treaties with the national government. The Congress would be given the power to regulate commerce with indigenous peoples, but you see this sends a message to the world and it signals to the world that the us has this power on its territory, it's occupied territory, for making treaties and engaging in commercial activity with indigenous peoples.
And so this is just the beginnings of how that Vattel really influenced the thinking of those who are gathered around the table, not only with regard to federalism, ideas of sovereignty, but also in relations with indigenous peoples.
Jeffrey Rosen: [00:20:47] Thank you so much for that. Absolutely fascinating discussion of the influence of the Law of Nations on interactions with indigenous peoples and opening up a whole new world of thinkers who influenced the founders as they formed the Constitution. Colleen, in your wonderful opening intervention, you noted that Madison, in trying to solve the question of virtue, turned to enlightenment thinkers who frequently cited Aristotle. I'd like to ask you now about other classical authors who were frequently cited by the founders that the most cited classical author was Plutarch whose lives were so widely read. And it turns out that his Life of Lycurgus was the most cited of all, that Sparta was a real model for the founders, but other classical authors included Cicero, who turns up as a footnote when James Wilson is writing his notes concerning the extent of legislative authority and Britain, he cites Birla Maki and then Berlin Maki has a footnote to Cicero.
So, these footnotes turn out to be really important. So, the broad question I have for you, and obviously it's a big one, is which classical authors, such as Cicero and Plutarch, influenced which framers and how are they filtered through the enlightenment thinkers that you mentioned?
Colleen Sheehan: [00:22:03] First of all, Jeff, I want to know which is your favorite Federalist paper.
Jeffrey Rosen: [00:22:07] Gosh. Well, I like 56 because of the warnings about even if every Athenian had been Socrates, Athens would still have been a mob. So that's mine.
Colleen Sheehan: [00:22:17] Aha. Okay. So I think I have to go with, this is hard one. I think I have to go with 49, but I'm in competition with James Caesar whose license plate is fed 49. For those of us, I think he's rubbing it into some of his colleagues at UVA by citing fed 49. And Madison's critique of course, in Jefferson and Federalist 49.
Jeffrey Rosen: [00:22:45] Great parlor game. Actually friends, the friends in the chat. Put your favorite Federalist paper in the chat as well. Okay. So the founders in the classics.
Colleen Sheehan: [00:22:54] So, you know, almost all of these folks, even Luther Martin when he was sober, and they just read so widely. If you look at the kind of education that they received, they were studying classical languages when they were kids. You look at Madison's schedule when he was at Princeton, you know, he goes early. Look at Hamilton, who was a great reader and admirer of Vattel by the way. And especially looking at things there about capturing ships during war. And can we free the slaves and finding these things out. They all read all of this, pretty much. I mean, they just were imbued. They lived and breathed a classical education and it wasn't dumbed down at all and they often read it in the original languages. Just look at the libraries that they had. They obviously had their favorites, but everybody read Plutarch, everybody read Strabo. It just was a mark of an educated human beings.
So it's difficult to say, you know, which one's influenced which one's the most, but I will say this, remember that letter -- Henry Lee writes to Jefferson, just before Jefferson dies and says, where did you get these ideas of the declaration of independence? Where did they come from? And Jefferson says, well, they're not my ideas. This isn't an expression of the American mind. You can find this in the books of public right, by looking at Aristotle, Cicero, Locke, and Sydney. So, it's in the air. So, I think that it's really difficult to, to pinpoint particularly ones, though I will say that Madison seems taken with Aristotle's book five of the Politics. What preserves and what destroys regimes. And he finds there a hint to something that's being developed in the late 18th century. And that said, unlike Plato's cycle of regimes that you find in book eight of the Republic, you know, that it goes from monarchy to temocracy, et cetera.
Aristotle says, well it doesn't have to go that way, Plato. Because of the power, the favor of the people, Madison translates this to be the power of public opinion, can change the face of politics. So what if you could harness that in a new Republican, the modern age, because of new means of communication that were unavailable to the classics, could you once remedy the problem of majority faction, in a large territory, but use these powerful means of communication to refine and enlarge the public views through all kinds of governmental and private means of civic education.
Jeffrey Rosen: [00:25:51] Wonderful. So great that you cited the Jefferson's letter, where he did indeed call out Aristotle's Cicero, Locke, and Sydney, and that you gave us book five of the Politics, and it's the specificity of these suggestions that will be so helpful as we create this Founders' Library and wonderful that our friends are already chatting their favorite Federalist paper. And we have a fed 51 from Ken Mosovick, 10 from Scott Miller and Jack Irwin, and another vote for 51 from Peter Hutchison. Keep them coming. And I'll just say that Jefferson's commonplace books also cites the particular books of the classical authors that he liked a lot. And he was a huge fan of Cicero's Tusculan disputations, which inspired me to read them. And they're so great, in terms of talking about how to use our powers of reason to master our anger and jealousy and fear, so we can achieve the classical virtues of temperance, prudence, courage, and justice.
Okay. Next question, Jonathan, I think will be about Blackstone and the English common law sources who influenced the founders, they read Blackstone and Coke and cited infrequently. What parts of Blackstone for what propositions and how do they influence which founders.
Jonathan Gineapp : [00:27:08] So first I'll say I'm surprised. I thought Colleen was going to choose Federalist 46, but 49 also makes sense. So, I'm not terribly surprised, but I would have lost the bet. So English common law in Blackstone and Coke and others, I mean, enormously important. I mean, you find Blackstone cited everywhere, at the constitutional convention and thereafter for a whole host of propositions. And part of what makes it interesting is that even after the American constitution is drafted, the British constitution continues to have a pretty significant impact on how people think because it had been the primary way in which so many Americans have come to understand constitutionalism and the language of constitutionalism, how you make arguments in a constitutional structure, but it always mattered who you were turning to to understand the British constitution because depending upon who you turn to, you would get a different view of what that constitution, which was mostly customary, entailed. Blackstone gave you one vision. Montesquieu gave you another. Coke gave you a very different one in the 17th century prior to the glorious revolution, when the Kings of England could do far more than they could thereafter.
So who they turn to ended up leading to different visions of what was entailed in sort of the constitutional inheritance they were talking about. Well, one particular area that I think is just enormously important and has been written about marvelously in my wonderful colleague at the at Stanford law school, Michael McConnell's recent book, "The president who would not be king," which everybody should read, I strongly recommend it. Among the many things he talks about there is how the list of prerogative powers that had traditionally been associated with the Royal crown, even after the glorious revolution that Blackstone lays out so clearly in the commentaries on the laws of England, it is very clear that this was the working list of prerogatives that the delegates to the constitutional convention was trying to make sense of. So a prerogative power is a pretty far reaching power that carries a certain amount of discretionar authority that were usually regarded as quite dangerous because the power to wield these prerogatives could carry with it significant ambits of authority.
So the power to make war and peace, to veto laws, to appoint and remove, to create offices so on and so forth. And one of the most striking things, the delegates to the constitutional convention did is that they gave so many of these powers to Congress, or they denied them to the national government in general. So, they didn't just simply give all of these to the president of the United States that they were constructing. They used Blackstone's list and then they adapted there from based on their experience under the state constitution, their experience under the articles of Confederation. And they came up with certain kinds of creative solutions, like the president with the advice and consent of the Senate would make treaties. They would make treaties together. It's traditionally sort of understood as an executive prerogative. Now it would be shared across two branches. The same thing with appointments. You want to appoint the secretary of the treasury or the attorney general? That is not something that the executive can do alone or the Congress can do on its own.
So they deviated in certain ways from this list that Blackstone had made, but they very much started with it as a basic blueprint for understanding kind of the key powers that at the constitutional convention, they would have to sort out who can remove executive officers, would be executive be able to create offices, you know, that there had been a longstanding debate in English histor over following the glorious revolution the capacity of the crown to influence through offices and patronage, being able to dole out these sort of lucrative offices, be able to control parliament through kind of indirect means. David Hume wrote about it. John Trencher and Thomas Gordon wrote about it in Cato's letters. Fundamental sources for the founders. And it's really striking that they took this prerogative power to create offices and basically denied it to the president. So there's all these ways in which you can start from Blackstone's list and you can imagine them almost putting them down on the table.
You can imagine the five member committee, the committee of detail that drafted the first draft of the constitution, halfway through--James Wilson, Edmund Randolph, John Rutledge, Nathaniel Gorham, and Oliver Ellsworth--sitting there while the rest of the convention has taken recess and sort of saying, okay. We've all known and we've known for a long time these powers are enormously important right here in Blackstone. We have them all seated around the table. Where are we going to distribute these and how are we going to do it? And based on what people have said to this point, what do we think we should do? Starting with that list from Blackstone, I think shows very clearly among many things, the enormous influence he had on the concrete reasoning at the convention.
Jeffrey Rosen: [00:32:10] Wonderful. Thank you so much for the list from Blackstone, and the specificity of it. Thanks for the shout out to Michael McConnell's wonderful new book about the presidency. We did a great podcasts on it with Michael and Cristina Rodriguez, which folks can check out and thanks for shedding so much light. Alright. Well, we're really cooking here because we've already talked about several of the major traditions that influenced the founders, including the liberal tradition as represented by Locke, the English jurisprudential tradition as represented by Blackstone, the classical tradition as represented by Cicero and Aristotle. Two of the other big traditions we should talk about include the civic humanist tradition and the Scottish enlightenment tradition. And then I think we'll really have done our homework. The civic humanists, famously through Machiavelli, but also English writers, like the amazing John Milton whose prose is so inspiring to read today to Sydney, who is one of the few authors who Jefferson called out, as Colleen said, as the folks in the air in influencing the American mind. All emphasize the importance of civic virtue, and in contrast to some of the radical individualism of the whig and enlightenment thinkers, they said that the Republics throughout history had collapsed in a cyclical way when citizens had lost their virtue.
So another big question, but Richard, can you give us a sense of how that civic republican emphasis on virtue, channeling the ancients influence the founders, and which thinkers and writers would you call out in particular?
Richard Albert: [00:33:48] Sure. I did want to go back to one earlier point because you know, remember, there is a deep tension here, isn't there in what the work of the founders is. You know, on the one hand they're extraordinary thinkers and doers. They draw from Locke, as we've discussed. And they go further than Locke does as, you know, Locke writes the fundamental constitutions of the Carolinas and that expires after a year and so the founders are able to take the learning and take it a step further. But the tension that I want to make sure that we don't alight over is of course, when the founders are drawing from politics, Aristotle, for example, concerned about the public good, as you know, they really don't take that to the fullest extent because you know, it's a very problematic, constitutional bargain that they make. Right. It's America's original sin. We must not forget. And so I'd love to talk a bit more about this internal tension, on the one hand, you have a deep believing Christians. And on the other hand, you have this pact with the devil that is made in the furtherance of the union. And so I just want to make sure that we maybe reserve some time to discuss that, but I certainly do want to credit the founders for the magnificent capacity they have had to combine thought and action to go where Locke was not able to go in the aftermath of the failure of his own constitution.
There was one more point I wanted to just touch on if I could, to build on something Jonathan said, was about the influence of Blackstone, and of course the English constitution. It's typified by this fusion of powers, as you know. And of course Montesquieu teaches about the separation of powers, but the fusion of powers is something that was quite evident in the English constitution. And, as you know, Madison was not a strict adherent of the theory of the separation of powers because he, in fact, proposed an institution that fused powers, the council of revision, drawing from the ideas that came from England. And so I think we want to put those two things on the table as well. Another tension, right? On the one hand, we have this rejection of the fusion of powers, but some proposals that in fact reflect that, which the U.S. Constitution rejects, which is a fusion of powers.
Jeffrey Rosen: [00:36:09] Such important points to call our attention to the ways that the founders betrayed many of their ideals, as well as the classical and enlightenment thinkers that they cited in their infamous compromise with slavery and inequality, and also you're asking a question which several of our friends in the chat has as well as the degree to which, well, John Meter says, can you discuss the feud between Jefferson and Story on whether the common law incorporated Christianity? I also have a question about the degree to which the founders were influenced by Christian thought and creating a religious society. And if we have time in the final round, maybe we'll talk about the ways that the founders returned to some of these same sources, or rather the second founders did, like Frederick Douglass and Lincoln and others, in criticizing the compromises of the original founding. Colleen, in what may be the last substantive intervention, I don't want to direct you too much cause you have so much to teach us, but we haven't really put the Scottish enlightenment folks on the tables squarely, including Hutchison and Thomas Reed, and Kane, and Hume, of course, who's one of the most cited folks on our list. Can you tell us about what the Scottish enlightenment folks distinctive contribution, the idea of a moral sentiment or moral sense, was? And how some things that they were even more influential on Jefferson, in particular, than Locke was, but then take it wherever you want and tell us whatever big thinkers we've missed that you want to put on the table.
Colleen Sheehan: [00:37:41] Well, the Scottish moral sense school. It's... I find this fairly complex because they don't really all agree. I mean, there's, for some of them, it's more of a common sense school. And for others, it's actually a sixth sense. I have to tell you there's there's a joke in Jane Austen's Emma, about Francis Hutchison's idea of this sixth sense. Do you have one minute?
Jeffrey Rosen: [00:38:08] Yes, please! Let's hear the joke.
Colleen Sheehan: [00:38:11] So the title of the book is Emma, right? And on Box Hill, Mr. Weston says, let's play conundrums. What two letters of the alphabet express perfection? Emma, I am sure you will never get it. And of course the answer's M plus A. M-A. It's based on Francis Hutchison's theory of moral goodness in which M equals a moment of good, A equals the ability.
Jeffrey Rosen: [00:38:37] Wow. What an erudite parlor game.
Colleen Sheehan: [00:38:40] So the title of the book, Emma, is itself a conundrum based on Francis. That's why, when I did a review of it recently, I entitled the review "Emma." which is the new film is, "Emma. Perfect." because the joke is she is far from perfect. Okay. So, Jane Austen thought Francis Hutchinson may be was a little... didn't have it quite right. That you know, she was more in the sense that our senses, our sense perception have to be the entry into this world of knowledge, into epistomology. I think Jefferson was more taken with the more radical Scottish moral sense than Madison was. Madison goes along with the common sense part, but Jefferson's always toying with ideas, at least for awhile. He'll pick them up and put them down. The same with the French, like Turgot, Condorcet, these are all very influential on Jefferson in a way that there's quite an influence of the French that usually American historians don't pay much attention to because for years the emphasis has been on the english influence on the Americans, the country Republicans and whigs and so on, but there's a huge French influence that that's been neglected. I think it's partly because a lot of American historians don't study French. And so that material hasn't, you know, been the first thing, hasn't been the go-to.
I think Hume was more influential on Madison than I used to think. I mean, there's a Douglas Adair famous work on this. And Adair thiks Madison, basically, when he wrote Federalist 10 had Hume's essays open and was sort of copying. I wouldn't go that far at all. But I do think that Madison read Hume very carefully. He cites Hume and he continues to cite him throughout the 1790s. And he's really looking at some of Hume's essays. Hume starting to look at this idea of public opinion. And Madison is finding this fascinating that maybe it's not the British, the longevity of the British government isn't just because of separation of powers and an equilibrium in government. It has to do as Hume pointed out that the parliament, the house of commons could do anything they wanted to do. If they just, if they kept their mind to it, because of the power of public opinion behind them. So, it's not separation of powers that's really responsible for the greatness, the Montesquieu-ian greatness of the British government. It's something more complex and he thinks Hume has seen his way through. So the Scottish school, you know, and Robertson and Reade and so on, is prominent as an influence on the American founders.
Jeffrey Rosen: [00:41:33] So, great. Thank you for that unforgettable Jane Austin joke. And which Hume would you recommend? What, which book in particular?
Colleen Sheehan: [00:41:40] Oh, the essays and especially Jean Miller, Eugene Miller did a Liberty fund edition of Hume's essays and its excellent. And it's subsidized, it's inexpensive and it's beautifully done.
Jeffrey Rosen: [00:41:54] And the most exciting thing about this world we're living in is that so many of these texts are free and online, and that's why we're going to collect them and put them in one place so that everyone can learn from them. Because this may be the last long substantive round, I don't want to direct it too much, Jonathan, which among the sources and framers we haven't discussed, which particular ones would you like to call out and tell us about.
Jonathan Gineapp : [00:42:16] All right. So I'll speak to two things just very briefly. I think, you know, in classical political philosophy Polybius and the history and the ideas of cycles of time runs through all of classical republicanism in one way or another. And this idea understood in many different ways, that things that are human made, human states, human societies have a life cycle. They sort of grow up and then they decay, creating a really urgent problem of Republican politics about how you escape these cycles. Republics are historically, from the perspective of the 18th century, been these extraordinarily fragile things that have shined bright at moments, but haven't lasted very long and it wasn't just Polybius, lots of classical thinkers thought in these terms, but it was the cyclical way of thinking about time that had a profound influence on the 18th century and certainly in the lead up to the American revolution, it was essential to giving Americans a language of social diagnosis that was not simply a constitutional and legal language about what parliament and the Kings ministers were or were not doing that was violating the terms of the constitution that created sort of a legal brief, but also what lay behind it and the pattern it formed and what it suggested about the future.
Drawing heavily on the idea of the British constitution has been fantastic, but there's no assurance that it will continue to be, just look at Rome, look at how Rome precisely when it became the best version of itself was when it began to decay. And then they drew on other classical thinkers like Cicero and others who sort of warned about how it, you know, it was tyrants who spoke the language of populism often that could win over the people's affections and what you had to look for, but it provided a very important social language for diagnosis and decay. And this was sort of awkwardly set aside this enlightenment idea of linear progress that was taking shape. You know, Thomas Jefferson was one of these people that, other than the issue of slavery and its expansion, the fire bell in the night, what he refers to as the Missouri compromise when he's so concerned about what the problem of slavery will actually do to the union is this rare moment where Jefferson is pessimistic about the future. Otherwise he's generally quite optimistic and it's interesting seeing different members of the founding generation, some more classical in their thinking of time in cyclical terms, others beginning to embrace a more sort of linear view of time that things can get better. That human being can make them better. The future can be better than the past.
But Polybius is lurking in the background of a lot of this and never goes away because no matter what's going on in the American founding era, somebody is worried about something posing a threat to the republic. First, it's what Parliament's doing to the British empire. Then it's what different Americans are going to do to the revolution. It's a powerful available language that is always there about things are fine now, but the seeds of decay are there as well. And if we're not vigilant, they will sort of naturally fall apart. That's always there.
Jeffrey Rosen: [00:45:16] Such a powerful caution and so central to their deliberations, as you say, and as all of you have noted, just that image of Madison reading two trunk fulls of books that Jefferson had sent over from Paris about failed republics of Greece and Rome and taking notes on them and all of those founders trying to figure out what would cause the decay was so central to their thoughts. For this round, Richard, whatever themes you'd like to pick up on, including the one who flagged for us about the ways that the founders may have betrayed some of the ideals that they took from their intellectual sources.
Richard Albert: [00:45:48] Thank you for that invitation. I want to put the name John Woolman on the table. A Pennsylvania Quaker. But I want to begin first with the states because at the time, you know, there are state constitutions and one peculiar part of the state constitution is, not all of them, but many of them, is that they make certain parts of the constitution unamendable. Can't change them with recourse to the amendment rule. If you want to change it, you gotta write a new constitution. So the founders of course are aware of this because the founders gather in Philadelphia, coming from the states, armed with their knowledge about what's happening in the states and of course of the state constitutions. So you have Delaware that makes certain rights unamendable and Carolina and Virginia make the Liberty of the press unamendable. Pennsylvania makes the entire declaration of rights unamendable. So they gather in Philadelphia. And they don't make anything unamendable permanently, but they instead choose to make one thing unamendable. And this is what the connection to John Woolman is. So Article Five says that you can amend the U.S. Constitution in any way you wish, except for two ways.
One, if you want to take away a Senator from a state, you need the consent of that state. But that's not really, unamendable, that's just a procedural hurdle that you have to overcome. But there is something that is really, unamendable, quite literally unamendable, and that is the international slave trade. The slave trade power that states have to engage in, cannot be amended until the year 1808. And this is where John Woolman's work comes in. John Woolman is a Pennsylvania Quaker. And he writes from a Christian perspective. And his point is that slavery is our repudiation of the fundamental pillars of Christianity. And so how can you, Christians, sanction this tragedy? And so Woolman is read as helping to moderate the length of time that the power of states to engage in the international slave trade will last. So you could have put in this rule in Article Five that says states can engage in the international slave trade however long they wish, and that's an unamendable rule. But no, it's made unamendable only for 19 years, until the year 1808. And this I think has something to do, quite substantially to do, with John Woolman's work and advocacy.
Jeffrey Rosen: [00:48:19] Wonderful. Thank you for that. Very powerful thought and folks can learn more about your important argument in your paper, "the unamendable core of the United States Constitution," which we will post in the chat and which is stupid. Well, we have four minutes left--the one rule of the constitution center is that we end on time, but I want to note Andrew Stevens has a very important caution for all of us. He says, well, it's great the NCC will have a library of the Founders' Library. I wish more people would actually read the texts and wonder how to encourage it. And I was struck by when I interviewed the Akhil Amar last week about his great new book, about "the words that made us." He lamented that some of his own students have lost the habits of deep reading. So, it is urgently important, Andrew Stevens and all of us, to think about ways of inspiring learners of all ages, including ourselves to develop the self-discipline, the habits of daily reading, that will allow us to do what the founders did and to grow in wisdom by engaging with the primary texts. And with that spirit, I think I'm going to ask each of you out of all the wonderful sources that we've talked about, if you want it to just recommend to our friends who are watching one or two texts for them to read and grow from what would it be. First to Colleen.
Colleen Sheehan: [00:49:36] Do you mean Jeff, do you mean secondary texts on this period?
Jeffrey Rosen: [00:49:40] No, let's do primary texts either going to primary sources that inspire the founders or the founders texts like the Federalist 10, the "what's your favorite Federalist paper is a great parlor game," but I think we can all use some more reccomendations.
Colleen Sheehan: [00:49:52] Sure. Well, first of all, the Federalist papers, let's start there, right. But if you're going to read the Federalist papers, something that, a document that people often don't read--there's some joke, I don't think it's true, but that Richard Nixon once said, "everybody should read the Constitution. It's not very long. Look, I've read most of it." I don't think that's true. But anyway, I actually have my students read the Constitution because it's so easy to think we have, when it's one of those documents we really haven't actually sat down to read. What other primary texts? I think Aristotle;'s politics and Nicomachean ethics are critical texts in the field of understanding politics, you can't get around it. And then I would go to the refounding, to Lincoln's speeches, to the Dred Scott decision, to the Peoria speech, to some of his fragments and so on. I'll stop there because I really could keep going.
Jeffrey Rosen: [00:50:46] Wonderful. So glad I asked--all phenomenal recommendations, Jonathan, what are yours?
Jonathan Gineapp : [00:50:52] Sure. So there are a number one can choose from. Following Colleen, I'll recommend the Declaration of Independence and you can read it in conjunction with Daniel Alan's book of how you read democratic writing, slowly, purposefully, thoughtfully, meditatively, you don't,just rush through it. You kind of dwell on each phrase and sentence and think about what it's doing, both substantively and rhetorically. From the period itself, I think James Otis's "The rights of the British colonies asserted and proved," really sort of the first major pamphlet that an American colonist writes challenging in a fundamental way, in a general way, the rights of the British Parliament to regulate American affairs is sort of essential to understanding a lot that comes after. And there's a lot of interesting things in there, including how James Otis talks about how slavery is in many ways illegal and unsanctioned and is willing to talk about that in 1764. And getting to Richard's point about how this is not something projected back on the 18th century, but something that people at the time actually struggled with. So, I think really carefully reading James Otis's pamphlet is kind of the first chapter in this period's history in a certain way across many dimensions is really eye-opening.
Jeffrey Rosen: [00:52:13] Wonderful. The Declaration and Otis. All of these will be phenomenal candidates for us to include in this great new library. And the last recommendations are to you, Richard.
Richard Albert: [00:52:23] Thank you. Thank you, Jeff. Well, when I was in law school my con law professors stressed John Dickinson's remarks, that experience must be our only guide, not our guide, our only guide. And so I want to recommend two things. One is the Articles of Confederation. And then two is the anti-federalist papers because it's important to know what prompts the writing of the Constitution, the failures of the Articles, and also the views of of those who lost the battle. I mean, they lost at the time, but you know, the arguments that were made then are still resonant today. And so that gives some very helpful context, I think. Articles of Confederation and the anti-federalists papers. Must reads.
Jeffrey Rosen: [00:53:05] Bravo. It's so exciting to hear all of these great recommendations. We will collect them and friends who are watching. Thank you for joining this marvelous light-filled discussion of the founders' library and the books that inspired the founders. As you listen, please send in your recommendations for the primary texts that inspired the founders as well as the primary texts written by the founders that those works inspired and we'll collect them all and put them thoughtfully online. Until then, Colleen Sheehan, Jonathan Gineapp, and Richard Albert, for inspiring all of us to grow and learn and spreading so much light. Thank you so much, and thanks everyone for joining.
Colleen Sheehan: [00:53:46] Thank you, Jeff.
Richard Albert: [00:53:47] Thank you.
Jonathan Gineapp : [00:53:47] Thank you, Jeff.
Jeffrey Rosen: [00:53:48] Great discussion. Thank you.
