by Robert Morrison
December 13, 2013
Michael Farris is the Chancellor of Patrick Henry College and the founder of the Home School Legal Defense Association. He has offered an amazing analysis of the ratification — let me call it what the Framers called it — the ordination and establishment of our U.S. Constitution. Everyone who calls him or herself a constitutional conservative should read Mike Farris’ compelling legal and historical research.
Farris quotes popular contemporary historian Joseph Ellis’ recent book, Founding Brothers, in which Ellis endorses the view that the adoption of the Constitution was procedurally marred. Ellis notes that that under the Articles of Confederation, which was our only American legal frame of government in 1787, the consent of all thirteen state legislatures was required in order to amend the Articles themselves.
Since the Constitution explicitly states that it will go into effect upon approval of only nine of the thirteen states, it is argued by many historians that the Framers somehow got around this requirement of the soon-to-be-superseded Articles of Confederation. Further, some historians also maintain that the choice of state ratifying conventions instead of state legislatures is also evidence of the Framers pulling something of an extra-legal coup d’état.
Making this case, many historians have argued that the Framers were right to do this because the Rhode Island legislature, for one, was controlled by radicals who opposed any changes that would strengthen the central authority of the Union. These historians cite the unflattering nickname that Little Rhody was given in the 1780s — Rogue Island. Thus, it is maintained, unanimous consent of the state legislatures was impossible.
The Framers were therefore forced to work around the Articles of Confederation and make a pragmatic move to get the new Constitution adopted. In effect, they say, the Framers finessed legality itself in doing what they knew had to be done.
Note that I distinguish between the Founders and the Framers. All the Framers can justly be called Founders, because they helped to establish our constitutional order and our new republic. But not all Founders are Framers. Patrick Henry, Sam Adams, and John Hancock are some of the famous Founders, and great patriots, too, who did not take part in the Constitutional Convention in Philadelphia from May to September 1787.
Farris sets out to show that Ellis is wrong. I think he does a brilliant job of showing that (1) the Confederation Congress approved of the process of sending the newly drafted Constitution to the states for consideration and (2) the individual state legislatures approved the idea of convening ratification conventions in each state.
Mike Farris shows that, even if belatedly, the state legislatures of North Carolina and Rhode Island fell into line and approved the calling of state conventions whose sole task it would be to approve (or possibly disapprove) the new Constitution.
In doing this extensive legal and historical research, Michael Farris has done a vitally important thing. In my constitutional law classes, in my American history and political science classes at University of Virginia, and in my graduate studies in communications history at University of Washington, I was taught the Ellis line. I just assumed that the Framers at some point had to make a pragmatic decision in order to keep the ship of state from going up on the rocks.
Michael Farris’ important article reminds me of what the Illinois lawyer Abraham Lincoln did in his careful dissection of the Framers’ work on slavery. Lincoln in 1859 and early 1860 studied not only the constitutional provisions related to slavery, but also the actions of many of those Framers who went on to sit in our first Congresses under the Constitution.
Lincoln was seeking to prove that Congress did have the power to restrict slavery in the territories, that the Framers acting as elected Members of Congress, took part in re-adopting the famed Northwest Ordinance of 1787. That far-reaching measure was one of the major achievements of Congress under the Articles of Confederation.
Lincoln showed that when the First Congress elected under the Constitution sat in New York, it reaffirmed the Northwest Ordinance’s ban on all slavery in the old Northwest Territory.
Lincoln was not trying to gain recognition in some prestigious law review article. He incorporated his penetrating analysis into his famous Cooper Union Address, delivered in New York City in February 1860. Lincoln did the research that Chief Justice Roger B. Taney failed to do when he wrote his infamous decision in Dred Scott v. Sandford (1857). In that 7-2 ruling, Taney said the federal government had no power to prevent slavery spreading into all the territories. Lincoln refuted Taney masterfully. Many historians credit the Cooper Union Address as his strongest bid for the Republican nomination for president in 1860.
And Michael Farris, I believe, has refuted a horde of progressive historians who have taught us that pragmatism was the pole star of the Framers, that they were right in taking extralegal steps in order to achieve their worthy objectives.
Why does any of this matter today? ObamaCare is why. Every day, we see President Obama’s administration issuing new ukases and diktats relating to one-sixth of the U.S. economy. In the guise of fixing a national problem of uninsured persons, the president is daily achieving his stated goal of “fundamentally transforming this country.” A fundamental transformation means the constitution is being termited. Every day, President Obama and his radical appointees are taking actions unauthorized by the Constitution and antithetical to the Rule of Law.
The states, under ObamaCare, will become mere branch offices of the federal Department of Health and Human Services. That is why a majority of states rushed into federal court to try to block this seizure of power.
The ruling by Chief Justice John Roberts that said the individual mandate is constitutional because Congress has the power to tax us is, of course, an absurdity. It’s a dog’s breakfast of an opinion.
Every advocate for ObamaCare bitterly denied that the penalty for not enrolling the Mr. Obama’s exchanges, or having other government-approved health care insurance, was a tax. They denounced opponents of the legislation for even suggesting that this was the largest tax increase in U.S. history. “It’s not a tax,” President Obama told a television interviewer. Period.
But if it is a tax, then the Constitution explicitly states that all revenue bills must originate in the House of Representatives. This one originated in the Senate.
What Michael Farris has done in his excellent research is to reassure all Americans that the Constitution we received, the Constitution that was — the words have an almost religious meaning — ordained and established — still must be our pole star of legitimacy.
The new book, Freedom National: The Destruction of Slavery in the United States, 1861-1865, by James Oakes, shows convincingly how careful President Lincoln and the Republicans in Congress were to achieve emancipation only through fully legal and constitutional means. These included the adoption of the Thirteenth Amendment.
The Progressives, with their belief in a living Constitution, really are trying to force on us what Jefferson called “a thing of wax.” They pull and shape our basic document into any form they need, in order to achieve the pragmatic goals they want.
No wonder Speaker Nancy Pelosi looked incredulously at the man who asked her whether the health care takeover was constitutional. For someone who has been making it up as she goes along, for decades, Speaker Pelosi must have thought the man was speaking Greek.
Congratulations to Michael Farris for this indispensable contribution to our understanding of the Constitution the Founders — all of them — gave us. It is a jewel of inestimable worth.