Pulitzer Prize winning historian Joseph Ellis joined me this AM:
HH: A great treat for you right now. I’m Hugh Hewitt in the ReliefFActor.com studio inside the Beltway. I am joined now by Professor Joseph Ellis. He’s the author of many wonderful books, including Founding Brothers: The Revolutionary Generation, which you will recall won the Pulitzer, American Sphynx: The Character of Thomas Jefferson, which won the National Book Award. To the distress of students at Mount Holyoke, he is retired as the Ford Foundation professor of history, but he remains prolific. And his brand new book, American Dialogue: The Founders and Us is as wonderful as the previous. Professor Ellis, great to have you on the Hugh Hewitt Show.
JE: Mr. Hewitt, thanks so much for having me.
HH: Now we haven’t talked before, and so you won’t know I have been, you’re a historian who writes about the Constitution and its framers. I’m a Con Law professor who reads historians. And so this is just, for me, it’s Christmas candy. And I want you to expand on, I’ve been teaching Con Law for 22 years, and I always begin in 1787, and even at the Annapolis convention beforehand. But most Con Law textbooks begin at 1803, and that’s really not the right way to go about it, is it, Professor Ellis?
JE: No, no. You mean they begin with Marbury V. Madison?
JE: …and then judicial review, yeah. Of course, not. In fact, even beginning at ’87, you need to understand what’s happening in the early ‘80s, 1780s that is, as to why we were forced to do that, to have a Constitutional Convention. The first sentence in the greatest speech in American history is historically incorrect when Lincoln said four score and seven years ago, our fathers brought forth in this continent a new nation. No, they didn’t. They brought forth a confederation of sovereign states, provisionally united, to win the war then go their separate ways, which is what they proceeded to do. And so the creation of a nation, a nation-sized republic, was not initially what they thought they were doing. And they then do that in ’87 and create in that document a unified nation that’s different from confederation.
HH: Well, let me tell you what my great joy is. Finally in a condensed place, I have sometimes assigned Lynne Cheney’s book on James Madison. But it’s very long given the amount of reading in a Con Law has to do.
HH: Your chapter on James Madison and what he did, and beginning with the eulogy never have I seen so much mind and so little matter by rich men anywhere, it is a very concise, I mean beautifully structured introduction to Little Jemmy and the fact that it was the Madison moment. Would you expand on what the Madison moment was, especially that he wrote Washington’s letter to Congress, and Congress’ response, and why he keeps his writing to himself by the end?
JE: Yeah, by the end, he’s one of the more famous guys in America. But at the beginning, he’s, as you call him, “Little Jemmy Madison, Jr,” and nobody quite knows him in Virginia. The Madison moment is the late 1780s, roughly 1786-87, when Madison makes his most dramatic contribution and creative contribution to American history. Actually, carry it on to ’89 when he writes the Bill of Rights. And during that time, I follow him, try to show you his thought process, how he comes to terms with the movement from a series of sovereign states to something we’re united and why he thinks that’s necessary. The shifts that occur in his thinking along the way begins as a devoted Virginian and becomes a devoted American, and then adjusts himself to the shifting political situations before the convention and during the convention and after the convention so that when judges now are attempting to divine the original intent of the framers, Madison’s an interesting guy to look at, because he keeps changing. And Madison has a way of thinking that looks inconsistent on occasion, because he switched position on the issues, crucial issue of whether the states are sovereign or the people are sovereign and how you structure a government that will reflect either one of those. But because he’s like, he sees it as a seesaw, and once, once the seesaw moves up too high, he jumps on the other side to bring it down. And he’s looking for balance and some kind of, he’s a political thinker. If God were in the details, Madison would be there to meet Him upon arrival.
HH: I love that line. Yeah, that was a great line.
HH: I’m talking with Joseph Ellis. His brand new book is American Dialogue. It’s in bookstores everywhere. I will tweet out the link, and I’ve already tweeted it out this morning. Please go to his website to also get the book. His website is www.josephellishistorian.com. Now Professor Ellis, you use Jefferson to discuss race in America today. You used John Adams to discuss income equality and it’s gone to massive concentrations of wealth. You talk about George Washington as a means of discussing your views of foreign policy today. What I most like, because I teach Con Law, you and I don’t agree about originalism. I’m an originalist. But I like the way you laid it out what James Madison went through. But I’d like to get to the thing that I think is most important. 8,000 people ratified this document. I never try and discern the founders’ intent. I try and discern what those state delegates thought they were voting for. And that is useful via the Federalist Papers and the anti-Federalist Papers, and it’s a vast amount of thing. So you’re, you really knock Heller pretty hard. So I went back and read Justice Scalia’s decision here. I’m still persuaded by Scalia that he’s right. Have you gotten into it with, say, Randy Barnett at Georgetown, yet, talk about originalism and how it plays out in American Dialogue?
JE: I’ve talked to him. Yeah, in fact, he wanted me to come to his class there.
HH: Of course, he would, yeah.
JE: Yeah, and I talked to [Judge] Ginsburg, who’s originalist, sort of moderate originalist. There’s a spectrum of opinion within the originalist position…
HH: That’s correct.
JE: And most are called the Federalist, most people in the Federalist Society are originalists. But the extreme originalists are the ones that tend to get nominated to the Supreme Court, and I mean, Kavanaugh and Gorsuch are such creatures. I guess what I’m saying is that, and this will, you know, you won’t…
HH: Professor, let me stop you for a second. “Such creatures?” I think they’re wonderful men and extraordinary jurists. And I bet you do, too. But when you say in this political environment, I like to humanize rather than dehumanize. Do you agree with me on that?
JE: I don’t mean to, I mean to, I don’t mean to dehumanize them at all.
HH: “Such creatures,” I mean, they’re just very firm originalists. They are committed textualists to the document as it was understood at the time of the framing.
JE: Right. But look, where we’ll disagree is that I think that the Heller decision, which I picked because the Heller decision in 2008 is the one on the 2nd Amendment, as you well know, and that Scalia called that his masterpiece.
JE: And that therefore, it’s the clearest articulation of originalism in a Supreme Court decision thus far.
JE: And so when I look at it and look at the actual behavior and thinking of Madison in the spring of 1789 when he’s writing the 2nd Amendment, and the debate in both the House and then in the Senate, and then the debate in the 11 states that ratify, what’s going on there has nothing to do with owning a gun. It has to do with whether or not the defense of the republic will be in the hands of state militias or a federal army. And there’s great fear of a federal army, and that’s because a standing army, not just a fear of what the British army represented, though that’s primary, even of the Continental army…
HH: You’re absolutely right. That is the Justice Stevens dissent, and I think American Dialogue accepts and expands on it in a way that he did not that might persuade some people who are undecided.
JE: Yes, yeah.
HH: On the other hand, I am persuaded by the general understanding of the states at that time concerning firearms and frontier defense that even beyond the militia people, of course, had the right to carry weapons, and the Stewart discussion, etc. But what I wanted to get to, what I really liked about American Dialogue, and I want everyone on my team, the originalist team to go and get, is you explain how James Madison came to bitterly at first and then resign himself to and then maybe even applaud equal representation in the Senate as the necessary means of getting to where he wanted to get, which was dual sovereignty. He didn’t want to get to dual sovereignty. He wanted more, he was more Hamiltonian than most people know.
JE: That’s right.
HH: And you lay it out. There was no doubt in anyone’s mind at the end that the states would forever have equal representation in the upper body, correct?
JE: Yes, though he regretted it. I mean, but he knew that it was absolutely essential in the Constitution first to pass and then be ratified, because it was a gesture towards state sovereignty.
JE: And that the makeup of the convention, and then the makeup of the ratification convention, was filled with people who were very dubious about any federal government that created a consolidated power structure. That was the recreation of the British leviathan they thought they were escaping from. And so if he hadn’t made that compromise, it would have never passed. And he was, as I was saying earlier, committed to making those kinds of compromise decisions, and he later said, you know, that was the only thing to do. But when he first left the convention in September of 1787, and he wrote to Jefferson, he said we failed, because the Senate issue that you’re describing, Hugh, is you know, still gives the states a stronger subset authority and power than we had thought we allow, and that that will be a problem for us. So…
HH: And it requires a unanimous consent of the states to amend that provision, and that therefore, I don’t think it ever will be. I have one suggestion for you, Professor.
JE: I agree with you.
JE: No, I agree. But the big decision they made was in 1913 to make the Senate elected not by the state legislatures but by the people at large. And he would have supported that, too. But there does come to be a problem, Hugh, I mean, in the sense that let’s say that North and South Dakota have more representatives with a total population that’s less than half the size of Los Angeles.
HH: But if you look at Rhode Island versus Virginia at the framing, that sort of disparity, and Vermont –even worse. I think Vermont had the greatest disparity with Virginia at the framing.
JE: It’s true. That’s true, although Rhode Island didn’t count, because it didn’t show up.
HH: Vermont did. Let me give you a suggestion, and then I’ll hold you over through the break if I can, Professor.
HH: The suggestion is I always use Erwin Chemerinsky’s book. Now Erwin’s a, you know, a committed man of the left, but he has a great Con Law book. I would love for him to include your James Madison chapter from American Dialogue in his book, because it is, it is exactly what happened.
JE: That’s right.
HH: I’ve been trying to communicate that to law students for 22 years.
HH: …exactly how hard it was. The “miracle in Philadelphia” isn’t a miracle. It’s the work of a political genius. 30 seconds to you, then we’ll go to the break.
HH: Professor Ellis is my guest, and we’ll be right back with him. American Dialogue, wonderful book, recommend it highly. When we come back, we’ll talk about why you’ve got to reread history anyway, and I will be right back with Professor Joseph Ellis as we continue our dialogue about American Dialogue. Stay tuned.
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HH: Professor Ellis, you will appreciate Justice Breyer came to the studio a few years ago to talk about his book, and I read to him the remarks of Mr. Smith from the Massachusetts Ratification Convention on January 25th, 1788. Mr. Smith rises and says “Mr. President, I am a plain man, and I get my living by the plow. I’m not used to speaking in public, but I beg your leave to say a few words to my brother plow joggers in this house. And he goes on to way that when I saw this Constitution, I found that it was a cure for these disorders. It was just such a thing as wanted. I got a copy, and I read it over and over. I had been a member of the convention to form our own state constitution, and learned something of the checks and balances of power, and I found them all there. and I did not go to any lawyer to ask his opinion. We have no lawyers in our town, and we are do well enough without. I form my own opinion, and I am pleased with this Constitution.” That’s the democratic impulse, isn’t it, Joseph Ellis? That’s the 8,000 people at those conventions that ratified this document.
JE: Absolutely. And the conversation that you and I are having, Hugh, is exactly what I want – dialogue, argument. That you and I were disagreeing about originalism and the Constitution, and doing so in a coherent way…
JE: …and making, and that we’re such a divided people now. We’re all living in our own little apps and our own little bubbles. The ability to reach across that space between us and have a coherent argument is exactly what I’m trying to do in this book. And I really thank you for this.
HH: Well, this is where the public historians come in like you. And Doris Kearns Goodwin was on earlier this week, and I’ve got General McChrystal coming on. Public history, as you say, it expands your memory. It gives you a longer memory, and thus better arguments.
HH: Would you take a couple of minutes to tell me, or tell the audience why it’s so important that they read popular history?
JE: Well, I think that they should read history that can speak beyond the pedantic categories that academics sometimes occupy. I’m a card-carrying historian.
HH: You bet.
JE: And too many historians are only writing to each other. And they’ve created narrower and narrower definitions of American history. The amount of Americans who couldn’t even pass the civics test that new immigrants to America have to pass is astounding. And you’re right. It does expand our memory back in time in ways that allow us to have perspective on ourselves that, and we all know that when we get older and we look back on our own lives. And so what you’re doing now is what we need to do more, and the historical literacy of the population will allow us, I think, to break through the kind of crust that currently contain us.
HH: And I think that is actually, I read David Brooks’ piece earlier this week, the Rich, White Civil War. Most of the anger comes from the 8% on the left, and 6% on the right. And it’s those 14% cannot destroy the conversation for the 85% of us who want to have that and move the ball forward. I don’t think. Do you?
JE: No, though at times, I get pessimistic. I’m a realist, and we’re really, when you get on the internet and listen to what people are saying, it’s hard to believe in what they call the better angels of our nature. And so voices like yours are helping us to recover that. And I really do think that in the end, argument is the answer. It’s not, that’s what the Constitution really is. It’s a framework to argue.
JE: It doesn’t provide you with a clear set of answers. It provides you with a framework in which to argue, and each generation needs to be able to do that on those terms.
HH: And Madison’s example is, I think, maybe the best, because he’s not gifted as Hamilton is with charisma or physical size. He hasn’t got Washington’s rectitudinousness or a legend. But he just works at it. He just works at it every day.
JE: Absolutely. Yeah, absolutely.
HH: He’s just…
JE: And he thinks likes a lawyer, even though he’s, unlike Hamilton or Adams or Jefferson, he’s not trained as a lawyer. He just thinks that way. And he, you know, he contains within his own mind an ability to sort of step across the chasm and occupy the other side and understand what balance means. And so I’m with you on that.
HH: I went down to Montpelier, if I’m pronouncing it correctly, about three months ago and spent some time in the room…
JE: We call it Montpelier, but it’s…
HH: Montpelier. And I went up to the second floor and just looked out that window where he wrote those minutes of the Constitution.
HH: And I just thought to myself what a brain, what an amazing character.
JE: Oh, yeah. Yeah, Montpelier’s actually more impressive than I ever thought. I mean, I’ve been there, too, especially since they’ve renovated it. It’s about 15 miles from Monticello. And a lot of people go to Monticello and don’t go to Montpelier. They ought to go to Montpelier, too.
HH: Absolutely. And they ought to go out and get American Dialogue: The Founders and Us by Joseph J. Ellis. It’s another great book. Thank you, Professor. Enjoy, I’ll bet you’re about as retired as you were when you were teaching a full load at Mount Holyoke, and I doubt you’re retired. Thank you for joining me this morning.
End of interview.