New Stanford research reexamines U.S. Constitution’s story
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New Stanford research reexamines U.S. Constitution’s story

October 12, 2019


Stanford University. When we’re talking about
the creation of the American Constitution, we almost
always look at the years 1787 and 1788, the
Constitutional Convention and then the
ratification debates. What I try to show is
that, actually, the period thereafter did as
much to create, in a very meaningful, literal
sense, the Constitution. Americans at the time, rather
than taking a constitution that they more or
less understood and applying it to
new, novel situations, they instead always
found themselves having much bigger conversations. There were debates, really,
over what the Constitution was, because that didn’t
have an obvious answer. I think some really
good examples come from the very first year
of the first federal Congress. No Congress in the history
of the United States has ever had more
to do, because they had to set up a whole
new national government. The workload was immense. And yet just, a month into their
proceedings, in May of 1789, James Madison
proposes that there be departments of foreign
affairs, treasury, and war. And he says at the
head of this will be a secretary, as the
Constitution says, will be appointed by the
president with the advice and consent of the
Senate, and will be removable by the president. And a congressman from South
Carolina, William Loughton Smith, stands up and says,
“What do you mean removable by the president? The Constitution doesn’t
say anything about that.” They then spend weeks debating
this simple question about whether or not the president
alone has this power to remove executive officers. It’s not really,
ultimately, about whether the president does or
does not have this one power. It’s really a debate over what
do members of Congress do? What do Americans do
when the Constitution is silent on something? We tend to think
of the Constitution as like statutes, contracts,
treaties, a brand of law. But originally,
at the beginning, there were lots of
people who pushed back against that idea,
who didn’t think it was legal in character. It gets at this real point
that the Constitution and how you apply doesn’t have
any obvious answers in 1789. For more, please visit
us at Stanford.edu.

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