Nine truths in honor of the truth that is Usurpation Day, 9 April 1792.
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Part X of XIII “… Happy Constitution Day Yank.” “Smudge Day Johnny.” “Yupper.” “Tell the story again, about how George had the founders put a smudge on the Constitution.” “I thought you might ask Gus.” “Oh?” “Yes.” “So you have something prepared?” “Let me present, Constitution Day 1787.” “Let’s go Reb.” “Nowhere to go Yank, as we can story-tell right here.” “Okay.” “Conjure and imagine, if you will, the interior of … INDEPENDENCE HALL, PHILADELPHIA PA – DAY 17 SEP 1787 GEORGE WASHINGTON (55) is chairing the Constitutional Convention and it is the last day, signing day, 17 September 1787. The hall is full of founders, such as ALEXANDER HAMILTON (30), JAMES MADISON (36), and BENJAMIN FRANKLIN (81); they are all gathered to conclude the convention and begin their journeys home. The (almost) completed Constitution is read aloud as well as a speech written by Franklin. WE HEAR the MURMUR of restive and attentive voices as NATHANIAL GORHAM (49), someone known to all in the room, rises to speak; he is a Massachusetts delegate, Chairman of the Whole during the convention, and Washington acknowledges him from the podium. WASHINGTON I see Nathanial, the honorable Mr. Gorham, would like to speak. GORHAM Gentlemen, if it is not too late, I would like that the clause declaring, 'the number of Representatives shall not exceed one for every forty Thousand,' be reconsidered. WASHINGTON You mean the representation clause. GORHAM Yes, and since it produced so much discussion, perhaps we should reconsider it. WASHINGTON Your proposal? GORHAM For a greater representation of the people, I propose we strike out 'forty' Thousand and insert 'thirty' Thousand. HAMILTON Agreed! FRANKLIN Yes! Madison nods agreement. WASHINGTON (pauses) Although my situation has hitherto restrained me from offering sentiments on questions before the convention, and perhaps ought to now – LAUGHTER. I can’t forbear expressing my wish that the change proposed might take place. HAMILTON Say more. WASHINGTON It is much desired that the objections to the plan recommended might be as few as possible, and the smallness of the proportion of Representatives was considered by many members of the Convention, an insufficient security for the rights and interests of the people. FRANKLIN Yes. WASHINGTON The representation ratio had always seemed to me to be the exceptionable part of the plan, and late as the present moment was for admitting amendments, I believe it of so much consequence that it would give much satisfaction to see it adopted. The founders then vote and the change is unanimously accepted. Madison and a clerk make the edit to the Constitution by altering the word 'forty' into 'thirty,' and in doing so leave a smudge.” “Thanks for The Story of Smudge Day Johnny.” “You’re welcome.” “What’s the word on the usurpers and the surrender?” “Merrick Garland.” “Who’s that?” “The Attorney General for We the People.” “Word is?” “We’ve asked for support.” “I like it.” “Also, there’s some news about Sarah.” “Berry?” “Right, …” Next Up: 1 October and part XI of the series Johnny Reb and Gus Yank Berryvillin’: Sarah. Posted by Bryan W. Brickner On 17 September 1787, everyone in the room knew the meaning of Article 1, Section 2, Clause 3: “The Number of Representatives shall not exceed one for every thirty Thousand, but each State shall have at Least one Representative.” Alexander Hamilton knew. Dude named Benjamin Franklin knew. James Madison, he knew. George Washington knew, as the “thirty” was a wish of his. The founders, all 39 of them, knew what they were signing on that September day. Three dissenters knew too, as they withheld their signatures because of what they didn’t want to sign. The Constitution was then sent to and ratified by all 13 independent states, so they all knew. What did they know? They knew that “We the People” was a constitutionally created way, one recreated every ten years. They also knew that along that way there would be webs. Webs are things that snare. To avoid webs, stay on the way, the We the People way. Happy Constitution Day All! *Next Up: A 2020 political theory update on 10 October, Locke, Madison and Dahl. Posted by Bryan W. Brickner Biblically, shall is an imperative: thou shall honor thy parents, for example. Legally, shall is also an imperative, as it conveys obligation.
The absent “shall” from Akhil Reed Amar’s book, America’s Constitution: A biography (hardcover, 2005), is not on page 76. Under the rubric “The Number of Representatives,” Amar’s text leads the reader to a falsehood; when discussing the Constitution’s representation ratio (Article I, Section 2, Clause 3), the key legal word – shall – is absent. Here is Amar’s sentence: “Although Article I provided that the House should not ‘exceed’ one representative per thirty thousand constituents, its only minimal mandate was that each state have at least one member.”(page 76) In Amar’s book (where shall is rendered as should), he argues that the US Constitution has no maximum and only a minimum regarding the representation of We the People in Congress; by comparison, here is what Amar is referencing – Article I and its two shalls (in bold) – the first one setting a maximum, the second a minimum for constitutional representation: “The Number of Representatives shall not exceed one for every thirty Thousand, but each State shall have at Least one Representative.” (USC Article I, Section 2, Clause 3) Interesting political theory moment: Amar’s absent shall is a reverse deconstruction – surprisingly, it’s post-modern, like the theories of Jacques Derrida and Jean Baudrillard, though in reverse. Instead of the usual lineup – a presence masking a basic absence – Amar’s absent “shall” is masking a basic reality: the presence of a constitutional mandate for representing We the People at the ratio of one for every thirty Thousand. There happens to be lots of post-modern moments in Amar’s Constitution, so let’s bring James Madison, John Jay and Alexander Hamilton into the discussion next time. Amar notes the three founders (the book is over 600 pages), though he doesn’t on page 76 as required of a dissertation; instead, Amar quotes a dissenter, Patrick Henry, a founder who refused to attend the 1787 convention, and not a founder who was present in Philadelphia – like Madison, Jay or Hamilton. So we’ll do that next time – as we look to the founders and compare Amar’s theories to those in The Federalist Papers. Bryan W. Brickner |
AuthorBrickner has a 1997 political science doctorate from Purdue University, cofounded Illinois NORML in 2001, and was a 2007 National NORML Cannabis Advocate Awardee. He is also publisher and coauthor of the 2011 book banned by the Illinois Department of Corrections – The Cannabis Papers: A Citizen’s Guide to Cannabinoids. Archives
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