Hate Mail

IN HIS "An Economic Interpretation of the Constitution of the United States," the historian Charles Beard noted two totally different statements about the adoption of the Constitution given by the the most famous and influential Chief Justice of the Supreme Court, the slave-holder John Marshall, two statements that make opposing claims about the character of that adoption which shows that the alleged means of it gaining authoritative legitimacy was hardly what we have all been lied into believing.  Certainly according to that mythology which is the common possession of all of us who had conventional civics educations and who took high school and university American history courses such statements coming from the likes of John Marshall must be authoritative, he was there, he was an active participant, he was an interested beneficiary of the framing of the Constitution and its further shaping, much of it directly under his hands.  Even under his own standards of judgement, the issue of the consent of The People is nothing less than the legitimacy or the illegitimacy of the "supreme law of the land."

I cannot give the two statements in running columns as Beard gives them, the better to be struck at how incompatibly they are with each other but you can still read them.  The first is from his Life of Washington, 1804-1807, the second one in his decision in McCulloch vs. Maryland.  I'll start with his comment on page 299 of his Economic Interpretation, which came after several pages in which Marshall's clear view of the economic interests in those who supported adoption of the Constitution being largely those who lent money and were owed debts and those who didn't support it who saw the economic crisis of those low down in the economic scale as requiring debt relief.  I will note that Marshall, himself, admits that in a number of the states the opponents of adoption of the Constitution were a sizable majority.  The means by which the ratification was wrangled was as sleazy as what the Court and Republican-fascist legislators are re-performing right now and largely in the same game of different sides.

4. Finally, so sharp was this division into two parties on the lines of divergent views of property rights, that the Constitution, far from proceeding from "the whole people," barely escaped defeat altogether.  So positive is this statement by the great Chief Justice and so decidedly does it contradict his juristic theory of the nature of the supreme law that the two should be studied together.  For this reason, the two views enunciated by Marshall are printed in parallel columns:

"So balanced where the parties in some of them [the states]  that even after the subject had been discussed for a considerable time, the fate of the constitution could scarcely be conjectured;  and so small in may instances, was the majority in its favor, as to afford strong ground for the opinion that, removed, the intrinsic merits of the instrument would not have secured its adoption.  Indeed it is scarcely to be doubted that in some of the adopting states a majority of the people were in the opposition.  In all of them, the numerous amendments which were proposed demonstrate the reluctance with which the new government was accepted;  and that a dread of dismemberment, not an approbation of the particular system under consideration,  had induced an acquiescence in it . . . North Carolina and Rhode Island did not at first accept the constitution, and New York was apparently dragged into it by a repugnance of being excluded from the Confederacy."
Life of Washington, 1804-1807


[and from his decision as Chief Justice]

"The government [of the United States] proceeds directly from the people;  it is "ordained and established' in the name of the people;  and it is declared to be ordained "in order to form a more perfect union, establish justice, insure domestic tranquility, and secure the blessings of liberty' to themselves and to their posterity . . . .  The government of the Union the (whatever may be the influence of this fact on the case) is, emphatically and truly, a government of the people.  In form and substance it emanates from them.  Its powers are granted by them and are to be exercised directly on them and for their benefit. . . . It is the government of all; its powers are delegated by all; it represents all and acts for all."  
McCulloch vs. Maryland, 1818

When you put those two statements together one of them may be true but both of them cannot be true and, as Beard quite amply demonstrates in his book even in the terms of the time it was hardly what we are all to pretend it is, today.  Beard notes the difference between Marshall's discourse as an historian, in which he told an inconvenient truth and as the Chief "justice" of the Supreme Court in which he lies by characterizing the process in its adoption and, certainly, its administration in such abstracted, conventionalized pieties.  That such dishonesty comes from the most influential of all of the "justices" on that court is something that may have shocked me when I first read Beard's book when I was young, it certainly doesn't shock me anymore because I've read a good deal more about the actual history of the Supreme Court, the Constitution, especially the recent and far more rigorous historical documentation of the economic interests of the framers and the likes of John Marshall. 

More to the point, if consent of the People governed by a Constitution is how a Constitution becomes legitimate, certainly over time that consent must be actively given again and, if the terms in which, especially the Federalist party favoring the adoption of the Constitution claimed to be acting, that the informed consent to it was the actual means of gaining legitimate legitimacy, that consent in future generations has to be on the basis of accurate information, something which certainly has never happened in the history of the United States Constitution, the tacit acquiescence of a duped and ill informed public is hardly the same thing and I would challenge anyone who believes we have even had that flawed means of legitimating it.  It is notable how, once he became Chief "justice" Marshall's candor as an historian gave way to the lies of the lawyer.   The more I find out about John Marshall the lower my opinion of him goes.

I would recommend reading Beard's still extremely shocking and useful book, he is very good at documenting his generally primary documentary evidence to support his contentions.  I would contrast the precision care of the aristocratic lender class who prevailed in the Constitution and its "enlightenment" secular notion of law with the Mosaic Law which is certainly on the side of those who called for debt relief.  Since I am going deeply into the book of Jeremiah, using Brueggemann and Heschel as guides to it, I'll AGAIN give you a passage of what Brueggemann said in his Slow Wisdom lecture which touches exactly on my point that the "rights" specified in the Constitution are mostly those of abstractions of far more use to aristocrats and those who can afford lawyers (such as Trump bought for himself a few days ago) and not only say nothing about the actual rights which the economic underclass really need and do not get much (such as the partial debt relief that President Biden gave to some of those in education-debt).

The ancient city was in a moral default that could not be sustained.  It is no wonder that the poets, given how late it was wondered if it was too late or only very late.

So here in eight phrasings - I'm going to say the same things eight different ways - is my thought about these two triads of:

- might, wisdom, and wealth

and

-steadfast love, justice, and righteousness.

The triad of fidelity first focuses on the body whereas the triad of control focuses characteristically on abstractions of power and possession. The couplet of justice and righteousness are concerned with the ways in which the resources of the community are mobilized for the bodily reality of persons and the healthy reality of the body politic. The materiality of the biblical tradition has to do with the quotidian dimension of the vulnerable, the widow, the orphan, the immigrant, the poor and the wherewithal for their dignity and well-being. Thus the indictment in the ancient city, they have grown fat and sleek, they know no limit in deeds of wickedness, they do not judge with justice the cause of the poor, they do not defend the right of the needy. And the same poet says if you truly amend your ways, if you truly act with justice, if you do not oppress the immigrant, the orphan and the widow or shed innocent blood and if you do not go after other gods, then . . . (W.B.'s hand gesture indicating continuation)

Jeremiah sees the bodily needs of the vulnerable that require a different ordering of the body politic. Righteousness is weighing in for the well-being of the community.  The poetic tradition always cares about food, clothing and housing. The materiality of this triad refuses the requirements of ideas, concepts, theories and ideologies that draw energy away from reality of those who stand in front of us. The flight to abstraction is an endless seduction for those in control so that social reality can be reduced to a program or a budget that depends always on a euphemism to hide the bodily reality next door.  

The seduction of the university not unlike the government and the church and the corporation is to traffic in abstraction.  And the challenge of the university is to bring the energy back to that quotidian reality so that resources and passion may be mobilized differently.

The financier class who pushed through, without warrant, the drafting of the Constitution and who pushed its adoption, in some states such as Massachusetts and others in a rather dodgy process that stinks of the namesake of Elbridge Gerry [who is one of the sleaziest of the sleazy New England politician-financiers of the time] contempt for the poor and debtors who were pressed by the financial manipulations of the Federalist class was as rampant as contempt for the underclass is in Republican-fascism, today.   

I've been really busy with putting food away from the garden, that's the reason for the spotty posting.  A frost will come sooner or later, then more active posting will probably resume.