Capture Constitutional Myths: What We Get Wrong And How To Get It Right Expressed By Ray Raphael Disseminated As Paper Copy

is my review for DigBoston, com:

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Ray Raphaels new book Constitutional Myths is about how average folks, scholars, and Supreme Court justices misunderstand the Constitution as a result of incomplete or selective knowledge of its origins and the beliefs of those responsible for its creation.


Constitutional Myths doesnt really deliver on the second half of its subtitle, But what author Ray Raphael teaches us in elucidating the first half is captivating and vital, Perhaps the framers of the Constitution favored big government after all,

Of the eight myths that Raphael seeks to dispel, I found the several chapters that undermine the standing of James Madison as the paragon of small government advocacy and the driving force behind how the nations ruling document turned out to be the most compelling.


Raphael seems to definitively undercut the idea that Madison was “the father of the Constitution” by quoting anletter written by the man himself: “You give me a credit to which I have no claim, in calling me The writer of the Constitution of the U.
S . It ought to be regarded as the work of many head and many hands, ”

Perhaps its Madison just being modest,

More likely, however, this myth endures because those on the right wing of the political spectrum wish to afford him the honor in order to more confidently and convincingly map onto the Constitution the small government views of which he was supposedly the source.


Conservatives invariably quote what they see as a bulletproof passage from Madisons essay The Federalist No,: “The powers delegated by the proposed Constitution to the federal government are few and defined, Those with are to remain in State governments are numerous and indefinite, . . ”

What part of that do people not understand State governments can do almost anything that the citizens will tolerate and that which the federal government does must be in accord with theenumerated powers specified in Article I, Section.


Ya still with me

To those who agree, the supposed father of the Constitution advocated such a system before, when, and after he wrote these words.


Why then, Raphael wonders, did Madison write to George Washington on April,before the Federala, k. a. ConstitutionalConvention even assembled, “A negative in all cases whatsoever on the legislative acts of States, as heretofore exercised the Kingly prerogative, appears to me to be absolutely necessary”

Hardly an argument in favor “states rights,” eh However, since he knew that the citizens charged with ratifying the document would never approve such language, “Madison was forced to soften his argument.
The lighter, gentler version of the argument survives in The Federalist No,, eclipsing the strident, harsher one, ”

How about what JMad wrote to Thomas Jeffersondays before the convention ended: “the plan should it be adopted will neither effectually answer its national object nor prevent the local mischiefs which every where sic disgusts agst sic the state governments.
”

Why did he have such a low opinion of the final product if he was the one primarily responsible for it

Simple: if the Constitution appeared on the Maury Povitch show, DNA evidence would conclude that, “James, you are NOT the father of the Constitution!”

“By one tabulation,” Raphael writes, “he offered an opinion on seventyone motions but lost out on forty of these.
”

Raphael discusses Madisons relationship with the document in the years immediately following ratification by the required number of states in, He then offers a couple of challenges to Madisons supporters:

Which Constitution did he supposedly sire The pronationalist one he would have preferred inThe one proposed by the Federal Convention inand ratified by the states in, despite his complaints but with his support The one he interpreted rather loosely while serving in Congress inandOr the less centralized and more strictly interpreted version first touted in The Federalist Papers, the one that came to define his political views fromonward

If one cannot answer that, try this little exercise:

Select a half dozen of Madisons quotations favoring states rights or strict limitations on powers of the national government.
Did Madison make any of these pronouncements inNow compare those quotations with any statements he did make during the summer of

The next few pages of examples demonstrate that Madison tended to favor the power of the U.
S. Congress to that of state legislatures, It is more accurate to say of that passage from The Federalist No,, “Madison wrote,” than to say “Madison believed” my words, not Raphaels,

Now how about The Federalist Papers, a collection ofessaysalmost twothirds of which were written by Alexander Hamilton, fewer than onethird by Madisonof which Madison said, “The ultimate object of these papers is to determine clearly and fully the merits of this Constitution, and the expediency of adopting it

“Liberal” Supreme Court justices such as the retired David Souter and “conservative” ones such as Antonin Scalia cite them as influencing their decisions.
Were they as influential when they were written between October,and August,

No, they were not,

According to Raphael, “Six states had already voted for ratification before the first volume of collected essays appeared on March,, . . By May, when the second volume appeared, Maryland and South Carolina had already ratified, and only one more state was needed The Federalist Papers carried little weight as citizens cast ballots.
”

So what if no one read them Withof theessays penned by James Madison or Alexander Hamilton, they must contain within them exactly what these two men wanted out of the document all along, right

Nope: “Madison and Hamilton both defended views in The Federalist Papers that differed markedly from those they expressed at the Federal Convention.
” What Raphael says about Hamilton can apply to Madison as well: “As any good lawyer would do, Hamilton argued the case he was given, even though it was not the case he would have preferred.
”

One thing that can be gleaned from The Federalist Papers is what the delegates of the Constitutional Convention agreed upon at the end of the long hot summer of.
They do not, however, accurately depict what James Madisonthe darling of small government conservativeswas hoping for all along, However, Madison fans might have that passage from The Federalist No,on their side after all: It may not be what he wanted, but it is what the convention agreed to and whatof thedelegates attached their signatures to.


Wait a minutenot everyone at the Constitutional Convention signed the Constitution How comes that

Because the Constitution did not originally contain the Bill of Rights.


Yep, the first through tenth amendments to the Constitution were exactly thatamendments, changes, alterations, fixes,

That is hardly a myth, though, What is lesser known is that twoand only twodelegates proposed including a Bill of Rights five days before the end of the Constitutional Convention,

Raphael describes the proceedings thusly: “On SeptemberVirginias George Mason had a new idea: why not preface the Constitution with a full Bill of Rights, as many of the states had done with their constitutions Massachusetts delegate Elbridge Gerry, agreeing with Mason, moved that the preparation of a Bill of Rights be assigned to committee.
”

It was only then that the other delegates realized the folly of their ways and got cracking tirelessly on those constitutional guarantees that all Americans take for granted nowadays:

“When the question was called on Gerrys motion, not a single state voted ay The Committee of Style had just presented its almostfinal draft, and delegates thought their work was done.
”

WHAT!

Apart from their understandable weariness, many delegates also subscribed to Pennsylvania delegate James Wilsons view that, in Raphaels words, “Since they had never granted Congress any power over the press, for instance, it would have been superfluous and absurd to protect against a power Congress did not have.
”

This did not satisfy the citizens who had come to expect the explicit protection of specific rights that their state constitutions frequently afforded them, Therefore, Raphael explains, “Although the state conventions ratified the Constitution they proposed scores of amendments, some resembling provisions of what we now know as the Bill of Rights ”

So whom do we have to thank for “the ten amendments that are often viewed more favorably than the Constitution the framers created in” Certainly not “the men we most venerate as the founding fathersincluding almost all of the framers of the Constitution” who “greeted the clamor of a bill of rights with hostility or, at best, indifference.
”

The credit, therefore, belongs not to anyone who affixed his name to the Constitution, Rather, it goes to the people at the state ratifying conventions whose names and faces are unlikely to ever grace the pages of any American history testbook,

Like that James Madison fellow said,

As the instrument came from them, it was nothing more than the draft of a plan, nothing but a dead letter, until life and validity were breathed into it, by the voice of the people, speaking through the several state conventions We must look for its meaning not in the general convention, which proposed, but in the state conventions, which accepted and ratified the constitution.


He probably should have added “and insisted on amendments, ”

The two delegates who fought for the Bill of Rights in the first place ended up with legacies that are probably unworthy of them: one has a university it Virginia named after him, and the other is remembered in a word that is pejoratively used to describe the carving up an elected officials district in order to ensure election/reelection: “gerrymandering.
” This was an excellent read, Many things covered weren't new to me, as I've read quite a bit about early America and the founding fathers, but what Raphael does is really attack the details of the mythical arguments he debates.
He discusses the fallacy of treating today's world as if it is the lateth century, and thoroughly examines the written word of many of the founding fathers, searching for a true original meaning in the Constitution that simply doesn't exist.


The bottom line, and anyone who has really studied the founding fathers will tell you, is that they

were political creatures just as all of our leaders have been throughout the years.
If taking a certain position would help them get their way on one issue, then so be it, But they wouldn't be against taking the opposite position at another time if it would serve their purpose, This doesn't mean the founding fathers weren't brilliant men, They deserve our praise and all of the recognition they've gotten over the years for writing our Constitution, which is one of the most outstanding documents of its type ever created.
It simply means they were human, which is something many Americans seem to forget, This book tackles some of the common myths one hears when people are discussing The Constitution and the US's "Founding Fathers", Going over topics like taxes, Federal vs State govt, and the Bill of Rights, the book lays out the topics in a way that is approachable for readers.
Each chapter starts with the myth, the backstory "Kernel of Truth", the truth "But, . . ", and then goes into great details "The Full Truth", This makes convenient for people who may find certain topics more interesting then others, and I greatly appreciated this aspect of the book, .