Constitutional Myths: What We Get Wrong and How to Get It Right

by Ray Raphael

Americans on both sides of the aisle love to reference the Constitution as the ultimate source of truth. But which truth? What did the framers really have in mind? In a book that author R.B. Bernstein calls “essential reading,” acclaimed historian Ray Raphael places the Constitution in its historical context, dispensing little-known facts and debunking popular preconceived notions.For each myth, Raphael first notes the kernel of truth it represents, since most myths have some basis in fact. Then he presents a big “BUT”—the larger context that reveals what the myth distorts. What did the framers see as the true role of government? What did they think of taxes? At the Constitutional Convention, how did they mix principles with politics? Did James Madison really father the Constitution? Did the framers promote a Bill of Rights? Do the so-called Federalist Papers reveal the Constitution's inner meaning?An authoritative and entertaining book, which “should appeal equally to armchair historians and professionals in the field” (Booklist), Constitutional Myths reveals what our founding document really says and how we should apply it today.

Genres: Politics, History, Nonfiction

336 pages, Hardcover

First published January 1, 2013

Reviews

[Joe Stack · Rating 4 out of 5]

This is a book that contributes to a better understanding of the Constitution regardless whether you are an originalist or you adhere to the Living Constitution position. It is an excellent civic lesson on the Constitution, how it was created, and the challenges in understanding its meaning.

The author structured the book by beginning each chapter with a brief summary of what is commonly understood about the aspect of the Constitution that is the chapter’s topic. This is followed by the “but” factor, and then “the full story.” The author also includes copies of eight documents from the Framers, such as, the Virginia Plan (1787) and Madison’s Draft Amendments (1789), that are frequently mentioned throughout the book.

Throughout the book, the author confronts the reader with reasons why understanding the meaning of the Constitution is complicated. For example, Raphael presents a contrarian view of The Federalist Papers. He makes a strong case why the Federalist is not (should not be) the definitive resource regarding what the Constitution says. There are many other resources from the Framers and their associates that should be considered. It is, as Raphael points out, why “the meaning of the Constitution was disputed from the moment Congress submitted it to the states on September 28, 1787.” Considering the Framers had strong differences in opinion concerning the intent or meaning of the Constitution, the reader i# challenged with the notion that determining its meaning today is not as simple as taking an originalist approach or that of a living document.

Chapter 4, by itself, can serve as a basis for a discussion group. Here the author examines the principles the Framers considered in creating the Constitution: how limited should the government be, how strict should the Constitution be interpreted, individual rights & the common good, popular sovereignty. The author’s ending to this chapter tells why learning about the Constitution is important: “The discovery of the ‘true’ principles behind the Constitution lies in discussion, not on a multiple-choice answer sheet, and this discussion does not end. No simple algorithm can or will determine the Constitution’s meaning. If we pretend that one exists—even worse that we know precisely what it is—we transform the multilayered document that forms the basis for our government into a high school text: linear, lifeless, and incomplete.”

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After saving this review, I found I needed to go back and add some notes for future reference. These are supported by the historical records provided by the author:

Donwplaying the politics involved in creating the Constitution is misguided. If we think of the Founding Fathers as above politics, then "we cannot see them as models for how we might resolve out differences today. They become less relevant, not more so."

The Constitution was written to form a more robust central government while defining the reach of the government in its relationship to the states and the public at large. The framers' objective was establishing a "stronger and more viable government."

The system of checks and balances serves to diffuse authority "to prevent concentrations of power. The restraints or limitations distributed authority within the federal government while giving "that government greater powers than granting it to a single body. As protections grew, more powers could be added--that was the framers' basic strategy and crowning achievement." Madison's view of "powers by implication" prevailed.

"Our founding document did not declare firmly for individual rights over the common good (or vice versa), and it gave plenty of fuel for advocate of both strict and loose constructions of the documents." Other than a more robust, effectual government, it's not possible to know precisely what the framers intended and the full meaning of the Constitution because it is a "multilayered document," just as the politicking of the framers was multilayered. There was much "horse trading" with framers having to revise or drop what they wanted.

James Madison is known as the "Father of the Constitution;" yet, most of his arguments of what to include in the document or not included were not accept3ed. And his views changed over time. Using Madison as THE authority on the intent of the Constitution is problematic. This also applies to THE FEDERALIST PAPERS. Written to convince the state of New York to ratify the Constitution, it failed in that goal.

THE FEDERALIST PAPERS provide fodder for both those who are originalists and those who see the Constitution as a living document; for those who want to limit the powers and those who see a need to expand the powers. "There is no objective and infallible authority on the Constitution and the very act of pretending this is limits inquiry and distorts results. . . . Anybody from a Supreme Court justice to a partisan blogger can mine the approximately 200,000 words of THE FEDERALIST for what seem like supporting quotations and let the matter reset there." Taking THE FEDERALIST at face value separates us from the politicking that was involved.

Even the Bill of Rights that is so important and held in high esteem today was a result of politics. Madison and other Federalists who initially did not support adding these changed their position when they saw that ratification was in trouble. Madison proposed the amendments "to prevent other amendments from weakening the federal government ."

Originalism is often used to correct what is considered gotten wrong. "If some framers are right but others are wrong, there can be no single, correct doctrine of original intent or original meaning." How do you figure out intent when framers had to compromise on their intentions?

In writing THE FEDERALIST NO. 1, Hamilton "warned against 'an overscrupulous jealousy of danger to the rights of the people' and an obsession with liberty could undermine the nation and its people." . . . "Hamilton's strong pronouncement demonstrates that the ongoing discussion concerning liberty and government did not always favor liberty at the expense of government as Americans assume today."

[Edward Sullivan · Rating 5 out of 5]

I can think of so many people for whom this book should be required reading, including five men presently serving on the United States Supreme Court. Alas, it is the people most in need of reading it who are least likely to crack it open.

[Blake Maddux · Rating 4 out of 5]

Here is my review for DigBoston.com:

http://digboston.com/boston-news-opin...

Ray Raphael’s 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 doesn’t 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 nation’s 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 an 1834 letter 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 it’s 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 Madison’s essay The Federalist No. 45: “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 the 18 enumerated powers specified in Article I, Section 8.

(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 16, 1787 (before the Federal—a.k.a. Constitutional—Convention 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. 45], eclipsing the strident, harsher one.”

How about what J-Mad wrote to Thomas Jefferson 11 days 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 seventy-one motions but lost out on forty of these.”

Raphael discusses Madison’s relationship with the document in the years immediately following ratification by the required number of states in 1788. He then offers a couple of challenges to Madison’s supporters:

Which Constitution did he supposedly sire? The pro-nationalist one he would have preferred in 1787? The one proposed by the Federal Convention in 1787 and ratified by the states in 1788, despite his complaints but with his support? The one he interpreted rather loosely while serving in Congress in 1789 and 1790? Or the less centralized and more strictly interpreted version first touted in The Federalist [Papers], the one that came to define his political views from 1791 onward?

If one cannot answer that, try this little exercise:

Select a half dozen of Madison’s quotations favoring states’ rights or strict limitations on powers of the national government. Did Madison make any of these pronouncements in 1787? … Now compare those quotations with any statements he did make during the summer of 1787 …

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. 45, “Madison wrote,” than to say “Madison believed” (my words, not Raphael’s).

Now how about The Federalist Papers, a collection of 85 essays—almost two-thirds of which were written by Alexander Hamilton, fewer than one-third by Madison—of 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 27, 1787 and August 16, 1788?

No, they were not.

According to Raphael, “Six states had already voted for ratification before the first volume of collected essays appeared on March 22, 1788 ...By May 28, 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? With 81 of the 85 essays 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 1787. They do not, however, accurately depict what James Madison—the darling of small government conservatives—was hoping for all along. However, Madison fans might have that passage from The Federalist No. 45 on their side after all: It may not be what he wanted, but it is what the convention agreed to and what 52 of the 55 delegates attached their signatures to.

Wait a minute—not 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 that—amendments, changes, alterations, fixes.

That is hardly a myth, though. What is lesser known is that two—and only two—delegates proposed including a Bill of Rights five days before the end of the Constitutional Convention.

Raphael describes the proceedings thusly: “On September 12 … [Virginia’s] 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 Gerry’s motion, not a single state voted ‘ay’ … [T]he Committee of Style had just presented its almost-final draft, and delegates thought their work was done.”

WHAT?!

Apart from their understandable weariness, many delegates also subscribed to Pennsylvania delegate James Wilson’s view that, in Raphael’s 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 1787”? Certainly not “the men we most venerate as the founding fathers—including 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 … [W]e 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/re-election: “gerrymandering.”

[Robert Kortus · Rating 3 out of 5]

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.

[William · Rating 4 out of 5]

Mr. Raphael gives us much of the facts and fiction of the Constitution from the eyes of the framers. In our society where politicians and talking heads claim they are the sole knowledge keepers, it should be must reading before they are permitted to run for office or open their mouths.

[Mary · Rating 4 out of 5]

Insight into the what we get wrong part, less about how to get it right. Interesting read for our time in history.

[Amanda Augustine · Rating 3 out of 5]

Very “in the weeds” but provides valuable historical context.

[Fred Kohn · Rating 3 out of 5]

This book follows the very interesting and successful structure of introducing a number of constitutional myths, showing how they have a kernel of truth, then demonstrating from historical facts how they are flawed. These myths are:

-The framers of the Constitution opposed a strong federal government.

-The framers hated taxes.

-The framers were impartial statesmen, above interest-driven politics.

-The framers were guided by clear principles of limited government.

-James Madison sired the Constitution.

-The Federalist Papers tell us what the Constitution really means.

-The Founding Fathers gave us the Bill of Rights.

-By discovering what the framers intended or how the founding generation understood the text, we can determine how each provision of the Constitution must be applied.

By using this structure, Raphael is able to weave a wonderful narrative of the creation of our Constitution that was eye opening to me. I suppose I always knew that the Founders were not a monolithic group, but I was amazed to find just how over the map they were in their political beliefs, and how drastically some founders (especially Madison) changed their opinions of the role of government over time as the early history of our nation unfolded and as political situations demanded. The one thing that is different from the founding period of our history from today is that for all their faults, the founders had an unwavering commitment to the common good, and they were willing to compromise to see that happen.

[Nathan · Rating 5 out of 5]

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 late 18th 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.

[David Lucander · Rating 5 out of 5]

This is my favorite of Raphael's many books - and that's saying a lot. Well written, cogently argued, and packed with facts that will reinforce any teacher's lecture notes. I read this for prep of my Principles in American Government class and found it immensely valuable.

Best sections: Chapter 8 skewers the concept of judicial "originalism" to the point that it's even hard for me to teach this school of thought with any credibility. Chapter 6 argues that the Federalist Papers get way too much credit and should not be relied on as an end-all source. Chapter 5 pretty much unseats James Madison as "father" of the Constitution. Instead, Raphael would say, the Constitution's paternity is unclear because so many had their hands on it. The implication is that compromise is necessary and effective government always does this.

Caveat emptor - the author clearly has a populist/liberal sway.

Lasty, read the endnotes. Just because it's in a smaller font doesn't mean it's not important! Raphael is a master of the well written endnote, this is a skill I wish more writers possessed.

[Catie · Rating 4 out of 5]

"I now make it my earnest prayer, that God would have you, and the State over which you preside, in his holy protection, that he would incline the hearts of the Citizens to cultivate a spirit of subordination and obedience to Government, to entertain a brotherly affection and love for one another, for their fellow Citizens of the United States at large, and particularly for their brethren who have served in the Field, and finally, that he would most graciously be pleased to dispose us all, to do Justice, to love mercy, to demean ourselves with that Charity, humility and pacific temper of mind, which were the Characteristicks of the Divine Author of our blessed Religion, and without an humble imitation of whose example in these things, we can never hope to be a happy Nation." - George Washington, "Legacy" Letter to the States, June, 8, 1783

[Jim · Rating 4 out of 5]

Examines several popular beliefs about the constitution such as:

1) The primary objective of the framers of the constitution was to limit the powers of government.

2) The framers were particularly non-political and patriotically inclined.

3) The original intent or original meaning of the more abstract and general provisions of the constitution can be objectively determined and can form a consistent and unbiased key to interpreting the constitution.

These beliefs are examined and shown to be oversimplifications or just plain wrong.

[Carole · Rating 3 out of 5]

There is so much misinformation out there about the Constitution and the founding fathers. This book sets out to tell it how it really was. While it was a time and place in history where some incredibly brilliant minds all came together at one time, they most certainly were not of one mind. They wrangled and argued, and each one wanted to make his point which he believed strongly in. But what they did all have in common then was a commitment to compromise. They were dedicated to crafting a document that everyone could support. And, they knew they were doing something extraordinary, and they were taking the long view. Lots of lessons here for today's legislators.

[Rick · Rating 5 out of 5]

In my reading proclivities I am not much inclined towards Histories, Government and Politics, or Histories of Government and Politics. With that said, I found this book extremely compelling.

In a well-documented manner the author reveals the horse-trading, partisan bickering and flip-flopping (both the politically-expedient and the on-well-reasoned-reflection kind) that went into the creation and ratification of the Constitution. From Taxes to Individual Rights, Authorship to Original Intent/Original Meaning – Ray Raphael demonstrates that the true picture is far more nuanced and much less well-defined than today’s loudest voices would have us believe.

[Denny · Rating 5 out of 5]

Discusses eight myths concerning the U.S. Constitution that have a "kernel of truth" but don't describe the complete story.

Example, "The Founding Fathers gave us the Bill of Rights."
"The job of the Constitution ...was to state what the government could do, not what it couldn't do." The State ratifying conventions stipulated a Bill of Rights was needed. Congress considered 17 amendments, approved 12 for submission, and settled on 10 that were approved by the States.

Well worth the read.

[Dancingfoolvb]

A very entertaining look at many of the popular myths about the Constitution. Very useful, especially in the context of the tendency of many conservatives and Tea Party fanatics ti invent their own version of the Constitution. There are several Supreme Court justices who need to read this (Thomas, Scalia).

[Robert Putka · Rating 4 out of 5]

Because it gives much-needed context and structure to both The Federalist and Madison's notes on the Constitutional Convention debates, this should be read as companion piece to those works simultaneously.

Ray Raphael's command of the historical record makes for a perspicuous and cogent account that ably undermines much of the baseless, rhetorical grandstanding out there.

[Jessica Clark · Rating 5 out of 5]

Great short read with amazing depth that will really make you think about this grand experiment!

[Mariam · Rating 2 out of 5]

i dont know what i was thinking picking this book up

[Bill · Rating 4 out of 5]

A very good book going into the often conflicting goals of the framers or our Constitution and their resultant compromise solution. Well organized, informative and well written.

[Miriam · Rating 5 out of 5]

Easy to read. Well researched and great use of sources. It is a little biased toward liberal interpretation, but the author would probably argue that its the facts that have a liberal bias.

[Tomkeese · Rating 3 out of 5]

After reading Hamilton, I developed an interest in the writing of the US Constitution. This is one of the books I picked up. I found it enlightening.