The Making and Breaking of the American Constitution: A Thousand-Year History by Mark PetersonMy rating: 4 of 5 stars
4.5 stars rounded down. The first 2/3 were absolutely 5 star, the big framing issue followed by the actual US Constitution up to 1890. The latter 1/3, though, would probably do only 3.5 stars at best.
This is a long review, even more so with expansion off the Goodreads version.
This is a magisterial and thought-provoking book that argues the US Constitution was at its core, a land-acquisition, land-development, and land-management tool, along the lines of one of the three written documents that form the core of the British constitution. That said, I don’t totally agree with all of his thought, especially near the end of the book, and am expounding on that part further here.
First, that word. “Constitution.” Peterson notes that the US "Founding Fathers" used it for a system as much or more than a single written document, not only under the Articles of Confederation but in the first years after 1789.
Otherwise, Peterson is serious in this framing, complete to using land and realty terms like "allodial" and "cadastral."
First, those three documents? Many fairly serious history buffs recognize two of them — the 1689 Bill of Rights and Magna Carta.
The third? William the Conquerer's 1086 Domesday Book.
No, the US Constitution is not an appraisal district book. But? Peterson notes it establishes a decadal census, that the "enumeration of the populace" already in the 1790 Census included more questions than "how many people live here," and that those questions expanded over time, and that part of the purpose of this was for federal government direct taxation. (Until the 16th Amendment, the US government could only tax directly in proportion to a state's population, thought this was ignored in the Civil War, with taxes levied directly on income regardless of state of residence AND having a multi-tier progressive style of taxation. Weirdly, just about zero Civil War histories discuss how it was unconstitutional.)
In addition, Peterson doesn't directly mention it, but Article III, about the US Supreme Court and inferior courts, talks about its powers in all cases of "law and equity." That's not equity in the 21st century version. That's land.
Peterson explains how, while Britain has an “unwritten” constitution, it has written elements — the 1087 Domesday Book, Magna Carta, original form in 1215 but reissued in rewritten forms at various times (tho not explicitly mentioned by him) and the 1689 Bill of Rights.
And, the US, though backboned by a “written” constitution, has unwritten elements — legal jurisprudence, what might be called constitutional common law and more. That’s contra “originalists” or “strict constructionalists.” He references these and other theories, all of which he considers as overlapping highly, near the end. Just as different interpretations of the British constitution wound up unconstrainable by the 1770s without some sort of major action, he notes already by 1990 and 200 years of the US written version, we were facing the same thing.
“No written document can ever completely define, let alone create, a governmental system and the fundamental principals that shape its nature.”
From there, starting with a parallel track, he talks about the Confederation creating the Northwest Ordinance, because Virginia and other states had competing land claims north of the Ohio that they surrendered, but no Southwest Ordinance, because the land claims to the Mississippi south of the Ohio were non-competing and thus not surrendered. From there, he notes that Georgia ratified the Constitution so quickly because it had zero money or troops to fight Indians, and how the Constitution reserved Indian land issues to the federal government.
From there? He excoriates Chief Justice John Marshall for validating the Yazoo land deals, for fetishizing "sanctity of contracts" even in the face of clear fraud, and for also using these cases to put Indian land claims on a lesser tier. (Peterson doesn't explicitly ponder if Marshall would have fetishized "sanctity of contracts" had the issue been something other than lang.)
Re the 1770s, he notes that the British constitutional system had evolved for a land-poor, and (relatively) people-heavy situation, while the US colonies faced exactly the opposite, as part of the situation, even problem.
Peterson notes the rhetoric of “permanence” in all written documents. Notes Madison, Federalist 48 and “parchment barriers.”
He notes “revolution,” pre-1776, per etymology, originally meant “restoration — a turn of the wheel back to an earlier condition.”
“Neither the state constitutions begun in 1776 nor the Philadelphia Convention of 1787 was a stroke of originary genius.
That pull quote, plus the non-pull quote above it, will get further thought below.
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Chapter 1
Part of the Stamp Act’s problem was that it demanded payment in sterling, which Parliament expressly forbade colonies to coin, under the 1764 Currency Act, killing off Connecticut’s nutmeg shilling, etc. Ben Franklin added that, since it was to pay for troops, even if not all the coin went to Britain, much would go to Quebec and the Floridas, the new colonies. Before that, Peterson notes that as “new colonies,” the trio were not considered to be ready for representative government at that time.
He says the Articles of Confederation were “a treaty organization for mutual defense.” And not much else, and without the ability to tax to pay for much of a national army, they weren't even much of that. (That's something to keep in mind in light of Tad Stoermer's "McResistance" book, which is being reviewed tomorrow.)
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Chapter 7: The President who failed to bark
I had never before read in detail Jefferson’s constitutional concerns not only about the Louisiana Purchase itself, but, looking forward, over the admission of states from that land, given that he believed the constitution and definitely its state-making process applied only to land east of the Mississippi, the US created by the Treaty of Paris, this was generally eye-opening.
He thought a constitutional amendment was needed, as part of his strict constructionalism, but Republican allies said no, and he agrees not to raise this in public. That's the "failed to bark."
Opponents of Louisiana’s admission, like Sens. Josiah Quincey of Massachusetts and Rep. Samuel Dana of Connecticut raised just that issue on the Congressional Dana even introducing such a proposed amendment requiring each of the original states to consent. Jefferson was the dog that did not bark in 1812. And Peterson fairly excoriates him.
As part of this, he also notes the Article IV provisions for how states were to be created. This is one area where I really had trouble with his line of thought, especially when I looked up the full Article IV, and went specifically to Section 3, about the admission of new states beyond the original 13:
New States may be admitted by the Congress into this Union; but no new States shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress.
Well, there are several issues, whether it's more with the thinking of Thomas Jefferson and the strictest of strict constructionalists, Peterson's analysis, or both.
I see nothing in that language that precludes creating states from lands outside the Treaty of Paris borders of the US. Yes, there could be an implicit understanding that "this union" meant the 1783 borders, but, to hoist strict constructionalists by their own petard, does it say that? No.
For one thing, the treaty-makers in Paris gave half a shot at trying to get East and West Florida from Britain. Although they failed, they weren't giving up. Also, although the War of 1812 invasion of Canada was more about general antagonism to Britain compounded with pursuing northern Indians across the border, nonetheless, the Revolutionary War dream of incorporating parts of Canada surely hadn't died. So, the Founders and those immediately in the next generation were surely mentally prepared for new states outside of the original Constitutional boundaries. As for Jefferson's cited worries about the foreign-ness of New Orleans, that hadn't prevented Congress itself from trying to detach French-background Quebec from British control, nor from angling to try to get Spanish-background, but British-controlled since 1763, Floridas.
Peterson doesn't do the best job on this, nor does he cite how many people disagreed with Jefferson, nor note that Federalist opposition in Congress was mainly politicized opposition trying to hoist Jefferson by his own petard.
Let's also not forget that Jefferson had been planning the Lewis and Clark expedition even before proposing the buying of New Orleans, let alone the acquisition of the whole Louisiana territory.
Essentially, Jefferson strikes me as a pseudo-Hamlet, a fake ditherer, and for whatever reason, Peterson — wrongly in my book — takes him too seriously.
Heading back to Peterson, if the U.S. Constitution really were a land-acquisition, land-organizing, and state-organizing machine, and were largely intended as such by the Founders, they would have been thinking of land acquisition beyond Treaty of Paris boundaries, and of treating such land, for purposes of potential statehood, just like land inside Treaty of Paris boundaries but outside the 13 original colonies/states, after the Northwest Ordinance in the northwest, and after eventual individual state land surrenders in the "Old Southwest."
So, either his tacit support of Jefferson's interpretation is wrong, or his grand theory's legs aren't quite as strong as he thinks.
Chapter 8 The Machine Runs Amok: Expansion, Slavery and the Civil War
Peterson talks about the Domesday Machine continuing to the Civil War. The admission of Missouri, Jefferson’s “fire bell,” is next. The Boon’s Lick (as he has it spelled) area was one-third its population then. Next, Texas, and Americans moving there to force eventual union with the US.
Chapter 9 The Machinery Stalls Out: The Challenge of the Arid West
OK, during the Civil War, as many buffs know, Nevada clearly came in unconstitutionally, but Peterson really picks it up in this chapter. As part of this, he discusses John Wesley Powell and his western drainage basins, and Henry George and his single land tax. After that, it was politics. Republicans split one Dakota Territory into two states and rebuff a Democratic compromise to admit New Mexico. (It already then had more population; remember, Mexican citizens were granted US citizenship by the Treaty of Guadalupe Hidalgo.) Although the constitutional population is 60,000, the informal rule was that a would-be state should have at least as many people as the smallest current state. Wyoming fell far short in 1890, and until the admission of Alaska, remained short. Eventually, Alaska passed it, and it went back to the smallest US state.
OK, that's the end of Part 1. He's mentioned what the Constitution was FOR, in his opinion. What happens when its original purpose is largely gone? What replaces that? That's theoretically what Part 2 is about.
Chapter 10 is about three distinct sub-nations — North, South and West. Really, the Old Northwest felt this way pre-Civil War, but Peterson picks this up as the first chapter of his Part 3, with the start of the second century of the US Constitution, the immigration to the Old Northwest and its industrialization in Chicago, Milwaukee, etc. But Peterson misses Turner’s “close of the frontier” thesis, which would have tied in here. (See how this book is thought-provoking, but yet has a miss here and there? It will have more misses in the future.) I mean, the original "for" is done because .... the frontier is gone! And, missing this put my skeptical antennae up.
I took side notes here about various US Censuses both before and after 1890, re my note above.
1790 asked over/under 16 years of age by number, male/female by number (for military reasons) and any slaves.
By 1820, the age breakdown was under 10, 10-16, 16-26, 26-45 and over 45, male and female, less granular age breaks for both slaves and free blacks, and also foreigners not naturalized.
By 1840, it was 5 year increments up to age 20, then 10 year up to 100. Then, you were asked your employment, not by individual company, but by seven broad classes of commerce, like agriculture, mining, trade, shipping, etc. Educational levels were first asked about on this census. Today's census wingnuts would have been erupting already then.
By 1860, the censed were being asked yet more detailed economic conditions. Remembering that farming was still the big occupation, you were asked what types of crops you were growing, and their estimated yield. Just like a county appraisal office today. By 1840, and expanding by this time, the Census was also moving beyond individual enumeration. Washington was gathering information on how many libraries, schools and such each county had. Here's the Census Bureau's official link for 1860. Mortality issues began to be asked at this time.
1870 saw the elimination of stats about slaves, of course. As the economy changed, more economic questions were asked about manufacturing.
By or before 1900, questions about marital status, number of children of each adult, whether currently living or not, whether currently at home or not, years of residence for the non-natives whether naturalized or not, whether a home was owned or rented and more, were all on the census. The wingnuts would really be apeshit. Anyway, the Census questions are moving beyond agriculture, mining, forestry and related.
Near the end of Chapter 10, on 243-44 he falters, in my opinion, claiming the Sixteenth and Seventeenth Amendments undermined the Philadelphia compromise. I can halfway buy that about the Sixteenth, even though Peterson ignores that the Civil War income tax was unconstitutional for not being levied in proportion to state population itself. (Again, why do either Constitutional or Civil War scholars not pick up on this?) Later on, I started thinking, he is a bit like a more modernized Walter Karp in some ways.
The Seventeenth? I totally reject his thesis here. The only thing changed was going to direct popular election. The equality of states in the Senate was preserved. Frankly, his discussion on page 245 seems to misunderstand what was most at concern in the "New Jersey plan," and that was equal state representation, not indirect election. But, the idea of an indirectly elected Senate was was readily accepted
in the "Great Compromise." The "Virginia Plan" also had a bicameral
legislature, also with indirect election for the upper house. In its case, state legislatures nominated candidates and the U.S. House elected them.
He is right about how the US more and more has the "virtual representation" that the Founders rejected. Yes, I know that at the time of Philadelphia, it was thought that election by state legislatures would bind states more firmly to the Constitution, but that was 130 years ago as of the time of the amendment and the Civil War was 50 years ago. And, the Philadelphians explicitly rejected any "unit rule" idea for Senate voting, which partially weakened the direct state ties. Also, the first potential amendment to this end was proposed way back in 1826, which Peterson doesn't mention.
Chapter 11: The Great Transformation
Primarily about the rise of regulatory agencies, which of course started with Theodore Roosevelt but really took off with the New Deal. Not much special here.
One side note here: The Federal Housing Authority encouraged banks et al to punish mortgagees that did not install AC. Even "Cadillac Desert" didn't mention this.
Chapter 12: The Long Crisis of the Constitution
This starts with a partial overlap with chapter 11.
His first plaint is the Supreme Court's "insular cases" distinguishing "incorporated" from "unincorporated" territories. It's why there's subminimum wages in Guam et al today. To put it more bluntly, the rulings were racist for Caribbean and Pacific islands that were non-white. (Hawaii, with its white sugar plantation owners overthrowing the kingdom, was "incorporated."
It's "Brains Trust" as a plural. Surprised Peterson missed that.
He notes the post-WWII national security state was alien to the spirit of 1787. He notes the "War on ... X" mentality. Militarization of the US. Takes Ike’s comment about the military-industrial complex at face value, ignoring that, in exchange, Ike substituted the spying-snooping-overthrowing complex. (He's not alone on this; lots of people give Ike an unwarrented pass.)
A short epilogue "Toward 2090" notes the US has been "constitutionally adrift" since the end of the Cold War. Peterson wonders what the country and Constitution will be "for" in 2090. He cites a 1974 book by Rexford Tugwell et al that notes the founders (and others around the Euro-American world) cited "natural rights" but not "natural duties." Tugwell called for a Bill of Responsibilities, and further empowering the House.
The epilogue concludes with a bit of turd-polishing the Founders. It was, in reality, as he notes in the beginning in discussing "revolution" etymologically, a conservative re-turning in 1787. (Interestingly, Shay’s Rebellion as a partial cause of the Constitutional Convention is never mentioned.) Plus, as he notes, there was not "originary genius" at Philadelphia.
As for replacing today’s constitution, just as the Founders replaced the Articles of Confederation? With the amount of wingnuttery running around America, I’m far less sanguine of a good result from that than Peterson is.
That’s where I really thought of him as a new Walter Karp and falling to 4.5 moved downward.
Karp?
The first book of his that I read was great, for his exposure of the Machiavellian hypocrisy of William McKinley on things like the Philippines (all new to me at the time) and the posturing of Woodrow Wilson (generally not new). The second book? Middling, in part because Karp seemed to fetishize the Constitution too much. The third book? Pretty bad, between a mix of guzzling Jeffersonian Kool-Aid to being a sociological version of a constitutional originalist, and other things.
With all of this, if Peterson publishes another book and I see it at my library, I'm certain to read, but won't expect genius.
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