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Posts Tagged ‘Founding Fathers’

Did the Founding Fathers Believe In American Exceptionalism?

 by Sheldon Stern 

HNN August 14, 2015

In a recent critique of the highly controversial 2015 College Board APUSH revision, Stanley Kurtz of the Ethics and Public Policy Center, faulted the document for its failure to highlight “American exceptionalism,” which he defined as “America’s sense of principled mission, its unique blending of religious and democratic commitment, its characteristic emphasis on local government, the high cultural esteem in which economic enterprise is held, and America’s distinctive respect for individual liberty.”[1]

The idea of “American exceptionalism” has, in fact, become a political hot potato—reflexively embraced on the right and passionately denounced on the left. Perhaps we can gain some valuable insight into the historical merits of this concept by turning to one of the most underappreciated, but arguably the most brilliant of the Revolutionary generation, John Adams.

Adams was confident that the new United States was on the cusp of a brilliant future. But he did not believe that Americans, as a people, were exempt from the flaws and faults of other nations and peoples. “There is no special Providence for Americans … and their nature is the same with that of others. …We are not a chosen people … and we must and we shall go the way of all earth.” Americans, he warned, were not immune to the hubris, greed, and foolishness of the rest of mankind.[2]  He was convinced that negative rather than benign forces had largely shaped—and would continue to shape—human political behavior; and Americans were no exception.

In fact, Adams shared the prevailing view of human nature in the late 18th century: people, especially in the political sphere, were believed to be driven by irrational motives and corrupt passions. Vanity, prejudice and the desire for personal gain were the real motive forces in political behavior. Human beings would therefore appear unlikely to construct an orderly and stable political system.  The framers of the Constitution embraced this view of human nature and endeavored to construct a system to neutralize the problem.  The essence of their solution was to channel this inherently flawed human material into productive ends by balancing harmful things against one another.  The theory of counterpoise (stressed by James Madison in the Federalist Papers) argued that negative human traits could be harnessed and counterbalanced to create a workable and mutually beneficial system. This is the philosophical principle behind the practical implementation of checks and balances in the Constitution.

Americans, Adams believed, were neither unique nor exceptional. Local and representative political institutions, religious freedom and diversity, and a respect for personal liberty and entrepreneurship did not spring full blown from a special gift of (or to) the American people, but were instead essentially the product of an unanticipated set of historical circumstances in which the fledgling nation originated and developed: its remoteness from central political and religious authority in Britain and Europe; its great size and abundant natural resources; its relative lack of inherited and rigid legal, class and social barriers (excluding Native Americans and forcibly imported Africans).

Distinctive socio/political, geographic and economic circumstances enabled the American colonies to gradually develop institutions which, as it turned out, would have a far-reaching impact on the ideas and values of the rest of mankind. “American exceptionalism,” far from being the result of inherent superiority, was largely an unanticipated consequence of historical time and place. Nonetheless, understanding this historical context does not make this “exceptionalism” any less real or any less genuinely revolutionary.

[1] “Sorry, Still No American Exceptionalism in APUSH,” Stanley Kurtz, National Review, August 3, 2015.

[2] Joseph J. Ellis, Passionate Sage: The Character and Legacy of John Adams, 1993, 106-07

Dr. Stern is the author of numerous articles and “Averting ‘the Final Failure’: John F. Kennedy and the Secret Cuban Missile Crisis Meetings” (2003), “The Week the World Stood Still: Inside the Secret Cuban Missile Crisis” (2005), and “The Cuban Missile Crisis in American Memory: Myths vs. Reality” (2012), all in the Stanford University Press Nuclear Age Series. He was Historian at the Kennedy Library from 1977 to 2000.

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Why the Founding Fathers thought banning Torture Foundational to the US Constitution

By Juan Cole

Informed Comment  December 9, 2014

I have argued on many occasions that the language of patriotism and appeal to the Founding Fathers and the constitution must not be allowed to be appropriated by the political right wing in contemporary America, since for the most part right wing principles (privileging religion, exaltation of ‘whiteness’ over universal humanity, and preference for property rights over human rights) are diametrically opposed to the Enlightenment and Deist values of most of the framers of the Unites States.

We will likely hear these false appeals to an imaginary history a great deal with the release of the Senate report on CIA torture. It seems to me self-evident that most of the members of the Constitutional Convention would have voted to release the report and also would have been completely appalled at its contents.

The Bill of Rights of the US Constitution is full of prohibitions on torture, as part of a general 18th century Enlightenment turn against the practice. The French Encyclopedia and its authors had agitated in this direction.

Two types of torture were common during the lifetimes of the Founding Fathers. In France, the judiciary typically had arrestees tortured to make them confess their crime. This way of proceeding rather tilted the scales in the direction of conviction, but against justice. Pre-trial torture was abolished in France in 1780. But torture was still used after the conviction of the accused to make him identify his accomplices.

Thomas Jefferson excitedly wrote back to John Jay from Paris in 1788:

“On the 8th, a bed of justice was held at Versailles, wherein were enregistered the six ordinances which had been passed in Council, on the 1st of May, and which I now send you. . . . By these ordinances, 1, the criminal law is reformed . . . by substitution of an oath, instead of torture on the question préalable , which is used after condemnation, to make the prisoner discover his accomplices; (the torture abolished in 1780, was on the question préparatoire, previous to judgment, in order to make the prisoner accuse himself;) by allowing counsel to the prisoner for this defence; obligating the judges to specify in their judgments the offence for which he is condemned; and respiting execution a month, except in the case of sedition. This reformation is unquestionably good and within the ordinary legislative powers of the crown. That it should remain to be made at this day, proves that the monarch is the last person in his kingdom, who yields to the progress of philanthropy and civilization.”

Jefferson did not approve of torture of either sort.

The torture deployed by the US government in the Bush-Cheney era resembles that used in what the French called the “question préalable.” They were being asked to reveal accomplices and any further plots possibly being planned by those accomplices. The French crown would have argued before 1788 that for reasons of public security it was desirable to make the convicted criminal reveal his associates in crime, just as Bush-Cheney argued that the al-Qaeda murderers must be tortured into giving up confederates. But Jefferson was unpersuaded by such an argument. In fact, he felt that the king had gone on making it long past the time when rational persons were persuaded by it.

Bush-Cheney, in fact, look much more like pre-Enlightentment absolute monarchs in their theory of government. Louis XIV may not have said “I am the state,” but his prerogatives were vast, including arbitrary imprisonment and torture. Bush-Cheney, our very own sun kings, connived at creating a class of human beings to whom they could do as they pleased.

When the 5th amendment says of the accused person “nor shall be compelled in any criminal case to be a witness against himself” the word “compelled” is referring to the previous practice of judicial torture of the accused. Accused persons who “take the fifth” are thus exercising a right not to be tortured by the government into confessing to something they may or may not have done.

Likewise, the 8th Amendment, “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” is intended to forbid post-sentencing torture.

The 8th Amendment was pushed for by Patrick Henry and George Mason precisely because they were afraid that the English move away from torture might be reversed by a Federal government that ruled in the manner of continental governments.

Patrick Henry wrote,

“What has distinguished our ancestors?–That they would not admit of tortures, or cruel and barbarous punishment. But Congress may introduce the practice of the civil law, in preference to that of the common law. They may introduce the practice of France, Spain, and Germany.”

It was objected in the debate over the Bill of Rights that it could be ignored. George Mason thought that was a stupid reason not to enact it:

“Mr. Nicholas: . . . But the gentleman says that, by this Constitution, they have power to make laws to define crimes and prescribe punishments; and that, consequently, we are not free from torture. . . . If we had no security against torture but our declaration of rights, we might be tortured to-morrow; for it has been repeatedly infringed and disregarded.

Mr. George Mason replied that the worthy gentleman was mistaken in his assertion that the bill of rights did not prohibit torture; for that one clause expressly provided that no man can give evidence against himself; and that the worthy gentleman must know that, in those countries where torture is used, evidence was extorted from the criminal himself. Another clause of the bill of rights provided that no cruel and unusual punishments shall be inflicted; therefore, torture was included in the prohibition.”

It was the insistence of Founding Fathers such as George Mason and Patrick Henry that resulted in the Bill of Rights being passed to constrain the otherwise absolute power of the Federal government. And one of their primary concerns was to abolish torture.

The 5th and the 8th amendments thus together forbid torture on the “question préparatoire” pre-trial confession under duress) and the question préalable (post-conviction torture).

That the Founding Fathers were against torture is not in question.

Fascists (that is what they are) who support torture will cavil. Is waterboarding torture? Is threatening to sodomize a man with a broomstick torture? Is menacing a prisoner with a pistol torture?

Patrick Henry’s discourse makes all this clear. He was concerned about the government doing anything to detract from the dignity of the English commoner, who had defied the Norman yoke and gained the right not to be coerced through pain into relinquishing liberties.

Fascists will argue that the Constitution does not apply to captured foreign prisoners of war, or that the prisoners were not even P.O.W.s, having been captured out of uniform.

But focusing on the category of the prisoner is contrary to the spirit of the founding fathers. Their question was, ‘what are the prerogatives of the state?’ And their answer was that the state does not have the prerogative to torture. It may not torture anyone, even a convicted murderer.

The framers of the Geneva Convention (to which the US is signatory) were, moreover, determined that all prisoners fall under some provision of international law. René Värk argues:

“the commentary to Article 45 (3) asserts that ‘a person of enemy nationality who is not entitled to prisoner-of-war status is, in principle, a civilian protected by the Fourth Convention, so that there are no gaps in protection’.*32 But, at the same time, it also observes that things are not always so straightforward in armed conflicts; for example, adversaries can have the same nationality, which renders the application of the Fourth Convention impossible, and there can arise numerous difficulties regarding the application of that convention. Thus, as the Fourth Convention is a safety net to persons who do not qualify for protection under the other three Geneva Conventions, Article 45 (3) serves yet again as a safety net for those who do not benefit from more favourable treatment in accordance with the Fourth Convention.”

Those who wish to create a category of persons who may be treated by the government with impunity are behaving as fascists like Franco did in the 1930s, who also typically created classes of persons to whom legal guarantees did not apply.

But if our discussion focuses on the Founding Fathers, it isn’t even necessary to look so closely at the Geneva Conventions.

Thomas Jefferson wrote in the Declaration of Independence, “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”

The phrase “all men” means all persons of any nationality.

We know what the Founding Fathers believed. They believed in universal rights. And they believed in basic principles of human dignity. Above all, they did not think the government had the prerogative of behaving as it pleased. It doesn’t have the prerogative to torture

We know what the Founding Fathers believed. They believed in universal rights. And they believed in basic principles of human dignity. Above all, they did not think the government had the prerogative of behaving as it pleased. It doesn’t have the prerogative to torture.

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Why Naming John Marshall Chief Justice Was John Adams’s “Greatest Gift” to the Nation

Harlow Gikes

HNN   November 16, 2014

As the final hours of John Adams’s short-lived administration ticked away, the President faced a critical last decision: the nomination of a new Chief Justice of the United States Supreme Court. Former Connecticut senator Oliver Ellsworth, who had helped write the Constitution, was ill and had resigned as the nation’s third Chief Justice.

Instinctively, the President turned to his old friend, New York’s John Jay, whom George Washington had appointed as the nation’s first Chief Justice in 1789. After five years, Jay was so bored with the job he resigned to become governor of his home state—and with good reason: The Supreme Court was not an important element of the American government, and its members had little or nothing to do.

The Constitution and four of ten amendments in the Bill of Rights had shorn the federal judiciary of power and left the Supreme Court a relatively impotent appellate court, with almost no original jurisdiction. By 1800, when Adams searched for a new Chief Justice, the Court had issued only eleven decisions during the federal government’s 11-year existence—one a year. There simply weren’t enough federal laws on the books to provoke much legal activity, and most Americans were more intent on plowing land than filing lawsuits.

Secretary of State John Marshall was in the President’s office when Jay’s letter of refusal arrived. Like Adams and Jay, the 45-year-old Marshall was a fervent Federalist intent on thwarting the radical changes in government that the anti-Federalist President-elect Thomas Jefferson was planning. In effect, Jefferson sought nothing less than a populist revolution, shifting power from the federal government to the states and extending the vote—then limited to property owners of means—to all white adult males. With Jefferson’s followers a majority in Congress, nothing stood in Jefferson’s way but the judiciary, and Marshall urged Adams to appoint as many Federalist judges as possible to frustrate Jefferson’s schemes.

Born and raised in Virginia, Marshall had fought heroically in the Revolutionary War—at Trenton, Brandywine, and Monmouth—and shivered through the bitter winter at Valley Forge. After the war, he studied law, became one of Richmond’s most prominent lawyers, and a fervent champion of constitutional ratification. He won election to Congress in the Federalist sweep that lifted Vice President Adams to the presidency in 1796, and Adams sent him to Paris to help negotiate an end to the Franco-American naval conflict then raging in the Caribbean. Marshall’s tough negotiating skills earned him a hero’s welcome on returning to America—and appointment as Secretary of State, then the second most important federal post.

“When I waited on the President with Mr. Jay’s letter declining the appointment,” Marshall recalled, “the President asked thoughtfully, ‘Whom shall I nominate now?’

“I replied that I could not tell.

“After a moment’s hesitation, he said, ‘I believe I must nominate you.’

“I had never before heard myself named for the office and had not even thought of it. I was pleased as well as surprised and bowed in silence. Next day I was nominated.”

From the first, Marshall saw the High Court as a bulwark against executive and legislative tyranny, with the Constitution as the Court’s primary weapon.

“He hit the Constitution much as the Lord hit the chaos, at a time when everything needed creating,” legal scholar John Paul Frank said of Marshall. “Only a first-class creative genius could have risen so magnificently to the opportunity of the hour.”

Like Moses, Marshall climbed the Mount and thundered commandments to those in government, asserting what “thou shall” and “shall not” do. Both Presidents Washington and Adams had violated constitutional restrictions on their power—each initiating wars without congressional authorization and, in Washington’s case, borrowing funds to finance government operations.

Jefferson planned even more radical usurpations of power—the replacement of judges appointed for life with anti-Federalist jurists who supported the Jefferson political program. Jefferson’s first victim was William Marbury, one of President Adams’s last-minute judicial appointees. When Marbury demanded that Secretary of State deliver the commission Adams had signed, Jefferson ordered Madison to withhold it while he found am anti-Federalist replacement.

Incensed, Marbury asked the Supreme Court for a court order, or writ of mandamus, to force Madison to give Marbury his commission. In 1803, John Marshall stunned Jefferson and the nation by declaring the President and Secretary of State in violation of the law. Under British rule, the king could do no wrong, Marshall conceded, but under the American Constitution, the President remained a citizen like every other American—subject to the law like every other American. A President of the United States had appointed Marbury to the bench and signed his commission, and a Secretary of State had embossed it with the Seal of the United States. For Jefferson and Madison to withhold the commission was a crime.

In a second, even more consequential ruling, however, Marshall refused to issue Marbury his writ, explaining that the Supreme Court was an appellate court not a court of original jurisdiction and that Marbury should have applied first to lower courts for the writ. Marbury cited a provision of the Judiciary Act of 1789 that specifically allowed plaintiffs to bypass lower courts in seekingwrits of mandamus. As onlookers gasped, Marshall then declared the provision unconstitutional.

It was a declaration of historic proportions: For the first time in American history, the Supreme Court had exercised the power of judicial review and declared a federal law unconstitutional. Unmentioned in the Constitution, judicial review was John Marshall’s creation, asserting Supreme Court power to declare any law—federal, state, or local—unconstitutional.

Marbury v. Madison was one of nearly 1,200 decisions Marshall’s court would deliver during his thirty-five years as Chief Justice. The longest serving Chief Justice in American history, he wrote nearly half the decisions himself, effectively appending them to the Constitution to form “the supreme law of the land” as a bulwark against tyranny by ambitious executives and legislators.

John Adams called his appointment of John Marshall as Chief Justice “the proudest act of my life.”

Harlow Giles Unger is the author of more than twenty books on the Founding Fathers and early American history. His latest book is “John Marshall: The Chief Justice Who Saved the Nation,” just published by Da Capo Press, a member of the Perseus Books Group.

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