Thomas Paine - Constitutionalism as a Principle

A written constitution - a systematic consistent coherent plan for governing - is a truly modern phenomenon. By ‘modern,’ let us understand the intellectual trend whose early examples include Descartes and Locke.

A constitutional system includes, but is more than, the concept of the rule of law. A constitution is a meta-legal document, and takes the objectivity of ‘rule of law’ and raises to cover not only positive laws, but the entire structure and function of government.

Thus while the twelve tables of Roman law, the Decalogue of Moses, and Hammurabi’s code are all examples of rule of law, they are not constitutional systems.

Thomas Paine, writing in the 1790s, points out that a constitution is prior, both logically and temporally, to a government:

A Constitution is a Thing antecedent to Government, and a Government is only the Creature of a Constitution. The Constitution of a Country is not the act of its Government, but of the People constituting a Government. It is the Body of Elements to which you can refer and quote article by article; and which contains the principles upon which the Government shall be established, the manner in which it shall be organized, the powers it shall have, the Mode of Elections, the Duration of Parliaments, or by what other name such Bodies may be called; the powers which the executive part of the Government shall have; and, in fine, everything that relates to the compleat organization of a civil government, and the principles upon which it shall act, and by which it shall be bound. A Constitution, therefore, is to a Government what the laws made afterwards by that Government are to a Court of Judicature. The Court of Judicature does not make the laws, neither can it alter them; it only acts in conformity to the laws made: and the Government is in like manner governed by the Constitution.

Surveying the world of his time, specifically the constitutional system in the United States, the failed constitutional attempt in the French Revolution, and the quasi-constitutional accretion of texts and common law traditions in England, Paine ventures some general remarks about constitutional systems. He denies that England has, in the strictest sense of the words, a constitutional system; he argues that it is an ad-hoc compilation of legal thought over the centuries, and a poor defender of liberty.

Paine is broad-minded enough to consider that the United States Constitution is not the only conceivable or practical constitutional possibility. British philosopher A.J. Ayer writes:

Concluding that no further proof is needed to show that if governments are to serve the interest of a nation, they need the backing of a Constitution, Paine proceeds to consider what that Constitution should be. As one would expect, his proposals are mainly in accordance with the American Constitution, but not entirely so. There are at least two important points of difference.

Paine is willing to consider that the traditional tripartite division of power (legislative, judicial, executive) as we find it in, e.g., Montesquieu is not the only way to divide power. He argues for the possibility of having only two branches of government, the legislative and the executive. He is willing to configure the judiciary as a part of the executive.

In the legislative branch, Paine considers the possibility of a unicameral legislature to be as viable, and in his opinion occasionally superior, to a bicameral legislature.

It is not the specifics of any one particular constitution which caused Thomas Paine, and so many other thinkers of his era, to seek written constitutions as the foundations for government. Rather, it is the general idea of an objective and external text, publicly accessible, and approved by the citizens, which gives the notion of a written constitution its attractiveness.

It embodies both the notion of popular sovereignty and the rule of law. If the rules by which the government operates are objectively set down and published, then even if those rules are quirky, or even corrupt, there is a measure of equality inasmuch as every citizen is entitled to engage in both interpretive debate and parliamentary maneuvering.

That humans inherit the right to ‘pursuit of happiness’ is instantiated in the publication of the operative rules of government, and each citizen is entitled to his attempt to negotiate a path through those rules as best he can calculate.

But if the constitution is illegitimately changed, even in an effort to make it more “fair” by some definition, then the rule of law has been violated, and any good faith effort made to work within the system has been betrayed. Constitutional scholar Mark Levin writes:

If the Constitution’s meaning can be erased or rewritten, and the Framers’ intentions ignored, it ceases to be a constitution but is instead a concoction of political expedients that serve the contemporary policy agendas of the few who are entrusted with public authority to preserve it.

The constitution may be likened to the rules of a game. Consider a variety of games, from chess to poker, from tennis to checkers, from Monopoly to Parcheesi. Any change in rules, once the game has started, corresponds to our intuitive notion of “unfair.”

One might well imagine a discussion among four card players, or twenty-two soccer players, about altering the rules of the game once a tournament has begun. The majority would certain object to changing the rules in the middle of a game, and any serious attempt at implementing such a change would result, not in a more “fair” event by any intuitive sense of the word, but rather would result in chaos, anarchy, the end of the game, and a net loss to all players - ‘loss’ here being, at a minimum, the loss of the opportunity to participate, and potentially much more.

Constitutional government yields justice - again, in any reasonable and intuitive sense of that word - because it objectively and publicly externalizes the rules of government by posting them for inspection and thereby setting the field for discussion of them. There is no claim that a constitutional government is perfect, rather only that it is less flawed than any other form. But a constitution which can be changed ex post facto, either explicitly or by judicial interpretation of its words, fails to function as a limit or restraint on government.

If a constitution contains within itself a mechanism for its own legitimate change - an amendment process - then any other change, i.e. a change not authorized by its own internal mechanism, including a change introduced by redefinition of the words in its text, is a violation of every citizen.

American Leaders in the Mexican War

The war between Mexico and the United States in the 1840s was not only a conflict between nations, but also a competition between substantial egos on the American side. A president, James K. Polk, a future president, Zachary Taylor, and would-be candidate, Winfield Scott, were key players in the unfolding military action.

Winfield Scott, who would ultimately be a defining military leader in the years between 1783 and 1860 - in the years between the American Revolutionary War and the Civil War - had an unpromising start to his career decades prior to the Mexican War. Historian Brion McClanahan writes:

Scott was a large man, standing six foot five and weighing around 230 pounds. He was a good student, briefly attending William and Mary College and then studying law in Petersburg, Virginia. He found little scope for his sense of adventure in a stuffy law office, and when the threat of war with the British arose in 1807, Scott immediately joined the Virginia cavalry. For the next few years, Scott bounced back and forth between the law and the army, until in 1810 he was court-martialed on trumped-up charges of making “ungentlemanly” comments about a superior officer - General James Wilkinson, a man now widely regarded as the most corrupt general in American history.

The mounting tensions in 1846 centered on land claims in the southwestern United States. Texas, which had declared itself to be independent from Mexico in 1835/1836, had fought to affirm that declaration.

Mexico begrudgingly accepted the existence of Texas as an independent republic, but when Texas joined the United States in 1845, Mexico began preparing for war.

Mexico disputed the location of Texas’s southern and western borders, and was not happy at the prospect of the United States being larger and closer to Mexico. The annexation of Texas would ensure that the United States was both.

In addition to Mexico’s wounded pride, at the thought that the Texans chose to leave Mexico and join the United States, there were also border disputes west of Texas, in New Mexico, Arizona, and California.

Polk sent diplomats to Mexico in an attempt to avoid war by paying cash for the disputed territory. The Mexican government at the time was in such disarray that the diplomats found it difficult to learn with whom they were to negotiate. Key leaders in Mexican foreign policy often held office for only a few months, and so the talks had to be restarted with different Mexican officials.

Predictably, talks broke down, and on April 25, 1846, Mexican soldiers under the command of General Mariano Arista fired on U.S. soldiers. In Washington, the Congress declared war on May 13, but, as historians Peter Maslowski and Allan Millett report,

Two major battles had already occurred. On the last day of April Arista’s army crossed the Rio Grande, and on May 8 it confronted Taylor at Palo Alto. Taylor told his men “that they main dependence must be in the bayonet,” but American artillery bore the brunt of the battle, forcing the Mexicans to withdraw. Just south of Palo Alto the open prairie gave way to dense chaparral sliced by river beds known as resacas. At Resaca de la Palma, Arista’s army assumed a strong defensive position. The tangled growth made it difficult for American artillery to deploy, and the resaca formed a natural breastwork. The battle was a melee as the chaparral shattered unit cohesion. The Mexicans again lost, fleeing across the Rio Grande. In two battles Taylor’s smaller army inflicted 800 casualties and sustained fewer than 200.

A simplified narrative of the war shows General Zachary Taylor moving southward from Texas with his army, and General Winfield Scott bringing his troops by ship southward through the Gulf of Mexico to the Bay of Campeche, landing at Vera Cruz, and fighting westward to Mexico City.

A more nuanced reading of the war includes the action of the U.S. Navy’s Pacific Squadron, under the command of John Sloat, along Mexico’s western coast and up to California; includes Col. Stephen W. Kearny leading his troops from Leavenworth, Kansas, westward to the Pacific coast in California; Col. Alexander W. Doniphan leading forces southward parallel to Taylor; General Philip Cooke leading troops from Santa Fe to California; and includes John Fremont bringing troops west to Sutter’s Fort in California and to Santa Barbara.

Of all these campaigns, Scott’s was of perhaps the greatest strategic value, while Taylor’s received the most praise in the popular press of the day. This may have been the result of Polk and Taylor conspiring to manage the war as a launching pad for Taylor’s political career. Comparing Taylor’s action to Scott’s, historian Russell Frank Weigley writes:

In the other principal campaign of the Mexican War, General Taylor showed himself to be an altogether less thoughtful and accomplished strategist than Scott. Taylor’s campaign in northern Mexico also had less strategic merit than Scott’s apart from the shortcomings of the general officer commanding. Once Taylor had secured President James K. Polk’s version of the new United States-Mexico frontier created by the American annexation of Texas, namely, the line of the Rio Grande, the strategic objects of his subsequent operations into Mexico were not clear. Too much difficult country intervened between the Rio Grande and the City of Mexico via the overland route for there ever to have existed any serious intention that Taylor should advance to the enemy capital. The American government’s hope for Taylor’s campaign of invasion across the Rio Grande into Mexico’s northern states was that occupation of those states would penalize Mexico enough to compel her to make peace, recognize the annexation of Texas, and grant the United States the other territorial increments which President Polk and his fellow expansionists desired, westward to the Golden Gate. Mexico’s northern states were so remote from the center of her national power, however, that General Scott was right to be doubtful from the beginning that Taylor’s operations could cause the Mexican government to conclude a peace satisfactory to the United States.

It might be possible to justify Taylor’s campaign by arguing that he kept Mexican troops occupied in the north so that they were unable to offer more resistance to Scott in the south. But evidence for such an interpretation is thin or nonexistent.

In any case, Scott, habitually cautious, understood the risk he took. Irving Levinson writes:

The critical phase of the conflict began when General Winfield Scott landed at Collado Beach on 9 March 1847 and marched north to the port of Veracruz and then westward to Mexico City. As he prepared to lead a force smaller than a single modern division through or near Mexican states that were home to more than 4 million people, he no doubt considered the grim threats that might be posed by a hostile populace.

Scott’s brilliant success was due not only to his own careful planning, but also to the fortunate circumstance that Mexican society was experiencing significant internal divisions at the time of the war. These divisions prevented a more efficient defense against Scott. Indeed, some factions of Mexican society were not at all supportive of the Mexican government’s war efforts, and offered no resistance to Scott whatsoever.

Woodrow Wilson - Racism in the White House

Several questions revolve around the presidency of Woodrow Wilson: How, and why, did the nation elect a vicious racist like Wilson? Which factors formed and influenced Wilson’s version of racism? Who promoted Wilson’s career, and why?

Historian Brion McClanahan notes two influences on Wilson: his childhood in the South and his education. During Wilson’s student years, certain universities were permeated by the influence of elitist progressivists whose racial views not only assumed that Africans and African-Americans were inferior, but that Anglo-Saxons were superior to all other genetic groups.

Wilson was the first Southerner to be president of the United States since Andrew Johnson in 1865 and the first Southerner elected president since Zachary Taylor in 1848. His style of governance was uniquely influenced by his Scots-Irish and Southern roots, but more importantly by the evolution of his political philosophy in the year during and after his graduate work at Johns Hopkins.

A complicated version of racism, not only did progressivism see Blacks as inferior, but also thought that the Anglo-Saxons (for practical purposes, the British) were superior even to other whites like immigrants from Poland, Russia, Finnland, Hungary, Italy, etc.

Wilson and his mentors used this racial view to justify a political philosophy of imperialism and interventionism. Wilson’s progressive imperialism meant, to him, that his Anglo-Saxon culture and gene pool allowed him, or even compelled him, to manage other parts of the world because his heritage and genetics gave him superior abilities and he was morally obliged to arrange matters for inferior groups. His interventionism meant that he was obliged to manage matters inside his own nation, because his insight gave him the ability to determine the proper state of things regarding economics, politics, education, etc.

Of course, Wilson didn’t believe that this was true only of himself; he was part of a team of elitist progressives who would manage matters both foreign and domestic. The man who claimed to want “to make the world safe for democracy” had in reality no desire to let a democratic process override his ability to manage both society and government.

One of Wilson’s compadres in the clique of progressive elitism was Herbert Croly, most famous for a book titled The Promise of American Life. Croly argued that the United States should abandon both the concept of individual rights and the concept of limited government.

Croly hoped for a nearly omnipotent government which would have the freedom to manage, adjust, and regulate nearly any conceivable human activity. If the government were to be free to do this, then the individual must surrender such freedom.

Wilson and Croly had a deep faith that the government, if given enough power and allowed to do as it pleased, would optimize life.

Brion McClanahan writes that “Wilson personified and implemented the” racist and elitist “progressivism that had been pushed by Herbert Croly.”

Judge Andrew Napolitano, a constitutional scholar, writes that “when Woodrow Wilson came into office, he brought with him not only the same racial ideas that” the Croly and other progressive elitists

held concerning the hierarchy of races, but also a severe hatred for black Americans. He exacted revenge for the woes of the Civil War and brought Jim Crow to Washington. He feared what would happen to his native South should it be “ruled by an inferior race.” This notion and his fear of black Americans were the inspiration for for many of Wilson’s racial policies designed to keep black Americans subdued in society. Once enacted, this state sponsorship of racism would run well into the 1960s in Washington.

When demands for desegregation and integration arose in the 1950s and 1960s, they were demands to undo that which Woodrow Wilson had done.

Some government offices had been desegregated during Reconstruction. After three or four decades of such integration, Wilson ordered, for example, that the workers in the Post Office be segregated. Wilson single-handedly undid half a century’s worth of civil rights progress.

Woodrow Wilson also made no secret of the fact that he was a fan of the KKK. Not only did he show The Birth of a Nation, a seemingly pro-Klan film, in the White House, but also wrote effusive words about both the clan and the film.

Unsurprisingly, African-Americans voted largely for Calvin Coolidge and Warren Harding when Wilson’s term expired after the election of 1920. Harding and Coolidge worked to undo Wilson’s work in a broad range of civil rights activities.

Coolidge, as an incumbent president in 1924, spoke at the commencement ceremony at Howard University, a historically Black college. This was a bold and even shocking move on Coolidge’s part.

He deliberately mocked the KKK in his 1924 slogan, “Keep Kool with Koolidge.” Wilson had issued supportive statements about the Klan, but Coolidge refused to do so, angering the KKK.

Both Harding and Coolidge had urged Congress to pass anti-lynching laws, and Harding had spoken eloquently about the matter in front of thousands of listeners.

It took years to undo the damage caused by Woodrow Wilson.

Terrorist Attacks - Not a New Thing

Explosions in New York and Washington! Shortly after the end of World War One, and shortly after the 1917 revolution in Russia, a loose coalition of socialists, progressives, communists, and anarchists hoped to bring about the overthrow of the United States government.

In 1919, a group called the “Industrial Workers of the World,” (IWW) allegedly a labor union, but actually a front for the international communist conspiracy, held the entire city of Seattle hostage during a five-day general strike.

The IWW organized its own “enforcers” to ensure that the residents of the city obeyed its dictates: only vehicles authorized by the IWW were allowed to drive at will in the city, goods were seized from those deemed too wealthy, ordinary services like laundry were curtailed or eliminated.

Attempting to establish a “dictatorship of the proletariat,” the IWW praised the Soviet Union in the propaganda leaflets it distributed to the people in the city it controlled.

But Seattle wasn’t the only city to be terrorized. William F. Rickenbacker writes that, on the other side of the nation,

On April 30, 1919, a vigilant postal clerk in New York discovered twenty bombs set to explode the next day, May Day. In Washington a bomb intended for Attorney General A. Mitchell Palmer (who had taken office March 3rd) exploded as it was being delivered to his house. The man carrying it up the steps was obliterated. Across the street, Assistant Secretary of the Navy Franklin D. Roosevelt came out of his house and found bits of flesh and blood on his doorstep. Another bomb intended for a Senator from Georgia amputated the hands of his Negro maid. Communism and anarchism had - I say it seriously - exploded onto the national scene.

The attacks continued. A little over a year later, the terrorists inflicted a larger death toll.

History books sometimes call this era ‘the first Red Scare,’ in contrast to the Soviet espionage activity after WWII, which they call ‘the second Red Scare.’ Both evoked responses from the government:

In the noonday crowd on Wall Street, on September 16, 1920, a bomb exploded just outside the main office of the J.P. Morgan bank. Thirty people died; three hundred more were injured. The scars on the exterior wall of the House of Morgan remain to this day. New York has been the seat of subversion, whose physical mementos can be traced from Andre’s path to the shrapnel signature of the anarchists; and as a result New York has led the counterattack - from the legislative investigation of conspiracies in 1780, to the Lusk Committee of 1919, to the earliest predecessor of HUAC, the Fish Committee of 1930.

People who’ve lived through the terrorist attacks at the end of the twentieth century, and at the beginning of the twenty-first century, can draw parallels between the current Islamic aggression and this earlier wave of terror.

In its written materials at the time, the Communist Party (CPUSA) was explicit that it sought a “violent” revolution in the United States. The deaths and destruction it caused confirm its statement.

The World-Historical Trend Toward Written Constitution

During the eighteenth century, a variety of political thinkers articulated the desire for written constitutions in various nation-states, both in North America and in Europe. This idea, which over the course of two or three centuries has now become common, was a novelty at the time.

England spoke of having a constitution at the time, but it was a patchwork of traditions like common law and of texts like the Magna Carta and the English Bill of Rights of 1689. While this did form some manner of a constitution, limiting government and prescribing procedure, it was an ad hoc accretion of several centuries.

The new demand for a constitution, however, envisioned a more unified written document, produced by authors who systematically articulated a form of government.

Thus Thomas Paine, writing in 1792, asserts that the English have, in fact, no constitution. He denies the claim of constitution to the British system, because it was not a deliberate, self-directed action on the part of the citizens to form a government, limit its powers, and prescribe its methods. Granted, parts of the patchwork quilt titled ‘English Constitution’ may fit that description, but as a whole it does not:

There is not such a thing as an English Constitution, and that the people have yet a constitution to form. A constitution is a thing antecedent to a government; it is the act of a people creating a government and giving it powers" and defining the limits and exercise of the powers so given. But whenever did the people of England, acting in their original, constituent character, by a delegation elected for that express purpose, declare and say, “We, the people of this land, do constitute and appoint this to be our system and form of government?” The government has assumed to constitute itself, but it never was constituted by the people, in whom alone the right of constituting resides.

Paine was willing to contradict Dr. Samuel Johnson, a towering figure in English writing. Paine and Johnson were on some points agreed, and even had been in the same social circles on an amicable basis. But regarding the question of constitution, Paine rebuked Johnson directly.

In Paine’s view, even the Magna Carta and the English Bill of Rights lacked true constitutional character, and England lacked any systematic plan of government to which its citizens could appeal, which limited government, or which protected citizens from the government. British philosopher A.J. Ayer writes:

Paine then turned his attention to England, which in his view lacked a Constitution. He reproached Dr. Johnson for failing to understand the difference between constitutions and governments and therefore being content with a government which controlled, instead of being controlled by, the nation. He then deplored the history of England from William the Conqueror to William III, saying of Magna Carta that it ‘was no more than compelling the government to renounce part of its assumptions’ and of William III’s Bill of Rights that it was ‘but a bargain, which the parts of the government made with each other to divide powers, profits, and privileges’. According to Paine, the consequence of this bargain and ‘the corruption introduced at the Hanover succession, by the agency of Walpole’ had been the putting into operation of ‘the most productive machine of taxation that was ever invented’.

Because the Constitution is not the government, but rather the plan for the government, it is foundational, an unchanging point which is so structured as to allow for application in a constantly changing world.

It is part of the Constitution’s self-understanding that it is not a perfect document, but rather it is one which can be improved. The framers understood that human nature is such that this world will host neither a perfect human being nor a perfect human society.

Humans and their societies are capable of refinement and improvement, but will never reach perfection, and are thus ever in need of adjustment. Constitutional scholar Mark Levin writes:

The Constitution is the bedrock on which a living, evolving nation was built. It is - and must be - a timeless yet durable foundation that individuals can count on in a changing world. It is not perfect but the Framers made it more perfectible through the amendment process.

Because the Constitution is a text, the tools of textual study become the tools of legal analysis. Hermeneutics and exegesis become tools whereby the government is judged.

The government is evaluated as is corresponds, or fails to correspond, to the general guidelines given the in the Constitution. Because the objective of the Constitution is to maximize freedom by limiting government, it is understood that this freedom will give rise to competing and diverging interpretations of the Constitution’s text.

In a recursive or self-referential way, the freedom created by the Constitution’s limitation of government is used to create contending understandings of the Constitution, its text, and its intention. Thus interpretative debates about the Constitution are foreseen by the Constitution and are part of the system which it prescribes.

seeks to divine the Constitution’s meaning from its words and their historical context, including a variety of original sources - records of public debates, diaries, correspondence, notes, etc. - While reasonable people may, in good faith, draw different conclusions from the application of this interpretive standard, it is the only standard that gives fidelity to the Constitution.

The goal of limited government is achieved, in part, by gaps designed into the Constitution. The text does not speak to all situations or questions, nor is it intended to.

A limited government is designed deliberately to remain silent on some matters, and this silence creates the free space for individuals, or local governments, to act. In this way we see the importance of the ninth and tenth amendments.

And where the Constitution is silent, states and individuals need not be. The Constitution and, more particularly, the framework of the government it establishes are not intended to address every issue or answer every perceived grievance. This is not a defect but a strength, because the government was intended to be a limited one.

A Constitution, as Thomas Paine and others saw, created open spaces for free action. By limiting government, it expanded the sphere of potential action on the part of the citizen.

If the legitimacy of the government arises from the consent of the governed, then the role of the constitution is to create a structure which ensures that such consent is effective and is allowed to change.

Thomas Paine and the Concept of Constitution

When the United States was founded, the notion of a constitution was not as well-established as it would later become. The notion of a written constitution, as opposed to the accretion of tradition and common law to form a patchwork constitution, was emerging as the object of desire among certain thinkers, but was neither universally known nor universally understood. The desire for it was therefore weak, but would grow with such knowledge and understanding.

Thomas Paine, therefore, found it necessary to educate his readers about the notion of a constitution.

Following the train of thought in Paine’s Rights of Man, Paine’s 1791 book, British philosopher A.J. Ayer writes:

Having restated his defence of representative government, Paine returned to the topic of constitutions. He was one who did not mind reiterating points which he considered important, and he did attach great importance to the matter of constitutions, if only because he believed that ‘government without a constitution, is power without a right.’ Believing the Constitution of the United States to be the only existing model that deserved the name, he proceeds to take his readers step by step through the process of its formation, relating how Pennsylvania constructed its Assembly with its own Constitution, followed in their respective fashions by the other States, how the States agreed to allow Congress, which had previously had only the authority to issue recommendations, to draw up an Act of confederation, how this Act was deemed to confer too much power on the several States and too little on the federal government, how this defect was remedied at a continental convention held at Philadelphia in May 1787, and how the convention promulgated a Constitution, which needed to be ratified by each State, a process which took two years, with the final result that George Washington, who had been elected to preside over the convention, was again elected in 1789 to become the first President of the United States.

Thomas Paine found the notion of a constitution to be central to forming a government which was likely to respect the human rights about which he wrote.

People make a compact to institute, not a government or a set of laws, but rather a form of government. Using the word ‘compact,’ Paine alludes to a sort of social contract.

The constitution would not be a set of laws; it would not be the government; rather, it would be a plan of government. Paine writes:

A constitution is not a thing in name only, but in fact. Wherever it cannot be produced in a visible form, there is none. A constitution is a thing antecedent to government, and a government is only its creature. The constitution of a country is not the act of its government, but of the people constituting its government.

Because the modern era in which Paine wrote saw a growing demand, not only for constitutional government, but for a written constitution, and one that was deliberately designed all of a piece, the question of language became relevant.

Lawyers have always been textual in their work, as far back as Greece, Rome, and Hammurabi. They write legal texts carefully, word by word, and analyze the writings of others in the same way.

The legal practice of close reading was elevated to a meta-level by the emergence of written constitution. If a lawyer parses the laws, then a constitutional scholar parses the written plan which formed the government which made those laws.

Paine wanted a written constitution, one hopefully not only internally consistent, but also composed largely in one time and in one space by a unified group of authors. If a text is to be parsed in a legal setting, then one hopes that the authors were more-or-less aware of how they were using language as they composed the text. Constitutional scholar Mark Levin writes:

Language consists of words, words have ordinary and common meanings, and those meanings are communicated to others through the written and spoken word. When parties enter into voluntary agreements, such as contracts, they use words to describe the terms and conditions by which they are obligated to perform and on which they are expected to rely. Contracts are interpreted, and the intentions of the parties discerned, in the context of their original making.

The study of the constitution will therefore veer at times into the study of language. One need only to examine the deliberations of the United States Supreme Court, in which extended argumentation revolves on the distinctions between auxiliary verbs in phrases like “had done” or “has done” - or the distinctions between modal verbs is phrases like “may do” or “shall do” - and the grammatical reflections of the lawyers involved.

The task of close reading and textual analysis is, in part, to attempt to reconstruction the thought process of the authors. Levin continues:

Much like a contract, the Constitution sets forth certain terms and conditions for governing that hold the same meaning today as they did yesterday and should tomorrow. It connects one generation to the next by restraining the present generation from societal experimentation and government excess. There really is no other standard by which the Constitution can be interpreted without abandoning its underlying principles altogether.

Paine’s desire for a written constitution was a desire to make the plan of government external and objective, so that it could be publicly examined. Text is neutral, and everyone may read and interpret it for himself, and debate with those who have differing interpretations.

The reader will recall that in Paine’s context, the end of monarchy was an urgent and real goal. The public accessibility of a written constitution, and the fact that the ability to textually analyze it, is not dependent upon anything inherited from a dynasty.

The externality, objectivity, and public accessibility of a written constitution lead to the rule of law.

The rights of man - individual political liberty - are best housed, Paine asserts, in a republic composed of freely elected representatives and structured by a written constitution.

Interpreting Paine

Although a popular icon of liberty, Thomas Paine presents the reader with challenging interpretive questions. While expressing a classic argument for freedom in Common Sense (1776), when he writes that “government, even its best state, is but a necessary evil,” he also articulates what many have seen as a proto-socialist viewpoint in Agrarian Justice (1797), which seems to present redistributionist tax-and-spend program for government.

The reader is left to harmonize these seemingly disparate texts produced by one and the same author.

At least four options present themselves for such a harmonization:

First, one might hypothesize that Paine changed his views between 1776 and 1797. Reasonable men do, after all, redesign their schemes based on experience and reflection.

Second, the reader might conjecture that Paine was tailoring his proposals to their audiences. Common Sense was written for the United States, while Agrarian Justice was written for France, with a possible sidelong glance at England. Perhaps Paine reckoned that the United States was fit for a radical degree of liberty, while the older nations of Europe and Britain were ready only for a more modest amount of freedom.

Third, one might suppose that Paine was capable of holding inconsistent ideas. More than one author has entertained mutually exclusive propositions, and either not been aware of the internal contradiction, or not cared about it.

Fourth, the reader might understand Paine as making a terribly nuanced argument, which would depend on a tortured reading of the text of Agrarian Justice, namely, that the planned redistribution - Paine wants the landowners to pay a percentage of their harvests to a treasury which would dispense such funds to all who did not own land - would somehow be a private sector operation, and thus avoid the stigma which Paine attaches to government in Common Sense. While such a reading would make Paine the author of an attractive scheme, it is very challenging to read this scheme out of - or into - the text.

In addition to the four listed here, there may be other interpretive possibilities for understanding Thomas Paine. But the paradox which he presents will prevent him from being a simple mouthpiece for any political grouping.

Scott in Mexico

During the 1840s, Mexico was a major concern in the foreign policy of the United States, and Winfield Scott was major figure in the military developments there. The tensions between the two countries centered on territorial claims.

Texas had been a part of Mexico until it declared itself to be an independent republic in 1836. It existed autonomously until 1846, when the U.S. Congress approved its request to become one of the United States.

While Mexico had tolerated the reality of an independent Texas republic, the Mexican government was not eager to see Texas become part of the Union.

As tensions rose, the likelihood of armed conflict increased, and military planners began to analyze various types of action in Mexico. One officer doing such work was Winfield Scott, who was one of the dominant figures in American military thought in the years between 1815 and 1860: in the years between the War of 1812 and the Civil War.

It was during the War of 1812 that Scott began his career and achieved some fame. He was a senior office by the time tensions with Mexico arose. Brion McClanahan writes:

Before the War Between the States, a handful of American generals had garnered the respect and admiration of the whole American people. Just below George Washington in this pantheon of heroes was Winfield Scott, a man who is hardly remembered today but who was considered by his contemporaries to be without equal. It was not until later, cataclysmic American wars, from the 1860s to the twentieth century, that his fame was eclipsed. Scott was born in Virginia on his family’s plantation, Laurel Branch, in 1786. His father had served during the American War for Independence and his mother counted the prestigious Mason and Winfield families among her ancestors. Scott’s father died when he was six; his mother, when he was seventeen.

One of the points in the tensions between the United States and Mexico was the exact location of Texas’s southern border. Texas claimed the Rio Grande as its southern border, but Mexico argued that the Nueces River was the true border.

President Polk sought a diplomatic solution with Mexico. He sent representatives to offer a deal to the Mexican government: a large sum of cash for the disputed regions of Texas, for New Mexico, and for California.

The attempted negotiations did not go well. The Mexican government was not inclined to yield any land, and the leadership of the government was in turmoil: key posts changed occupants several times within a year, so that diplomats from the United States were often negotiating with someone who’d just obtained the position and who would soon leave it.

Polk had sent General Zachary Taylor, first to Louisiana, and then into Texas, aware that military action might be in the offing. Taylor’s presence was primarily defensive, yet perhaps provocative.

When the seemingly inevitable war finally began, Taylor’s forces would operate along the border and into the northernmost regions of Mexico. Winfield Scott, however, would take the fight home to the Mexican heartland.

In addition to Taylor and Scott, other officers had significant roles. While Taylor, in conjunction with Brigadier General John Wool, worked from eastern Texas into northern Mexico, Colonel Kearny and Colonel Doniphan started from western Texas, Kearny heading west for southern California, and Doniphan heading south toward the Mexican town of Chihuahua and other points further south.

Wool, Doniphan, and Taylor would campaign around northeastern Mexico, in the vicinities of Monterrey and Saltillo.

President Polk was hoping for a short war, but General Winfield Scott had foreseen the likelihood of a longer engagement. Polk had given an important role to Taylor, partly for political reasons, at the beginning of the war. Taylor and Scott both had political potential and ambition. Taylor would be nominated by the Whig party for the presidency in 1848, Scott in 1852: Taylor successfully, Scott not.

Foreseeing such political activity, Polk hoped to give Taylor a strong public image by placing him in charge of the northern military operations against Mexico. Polk’s plan largely succeeded, and Taylor was viewed as a strong and successful military leader, boosting his political potential.

But the northern aspect of the Mexican war proved to be insufficient. Scott understood that engagement further south in Mexico would be necessary for victory. As the war continued, Polk eventually came to see the merit of Scott’s line of thought.

In Washington in November 1846, Polk and Scott decided to proceed with invasion plans. An amphibious landing would be made on Mexico’s eastern coast, at the town of Vera Cruz. Mapmakers sometimes make one word of the town's name: Veracruz. From there, Scott would lead the forces west toward Mexico City.

Scott appropriated significant numbers of soldiers from Taylor’s forces, which angered Taylor. Scott’s forces landed and captured the Vera Cruz in March 1847. Historian Russell Frank Weigley writes:

The object of Scott’s campaign was far clearer: to convince the Mexican government of the futility of prolonging the war, and perhaps to make its continued prolongation impossible, by capturing the capital and heart of the country, the City of Mexico. The territorial gains which the United States had sought in going to war against Mexico were already in the American hands or about to be when Scott’s campaign began. Taylor had assured American possession of Texas; and the combined efforts of the American settlers in California, the American Navy’s eastern Pacific squadron, John C. Fremont’s opera bouffe, and Brigadier General Stephen Watts Kearny’s Army of the West were capturing California. Kearny dropped off enough garrisons between Texas and California to terminate Mexican sovereignty in the intervening territory, especially when shielded by the anabasis of Colonel Alexander Doniphan’s one thousand across Chihuahua. Scott’s task was to persuade a Mexican government to grant formal recognition to these developments so that the United States could go about exploiting its conquests in as much peace as the resident Indians would permit.

Although Polk had wanted to fuel Taylor’s political chances, he saw that Scott was the wiser strategist. Taylor was worried that his electoral opportunities were being damaged. His worries, in hindsight, were misplaced. Taylor would end up in the White House; Scott would not.

Taylor’s nickname was “Old Rough and Ready,” which played well in the press. Scott’s nickname was “Old Fuss and Feathers,” because he insisted on discipline and uniforms. Taylor’s nickname was another political advantage. Historians Allan Millett and Peter Maslowski write:

Scott was an excellent choice. Since the war began he had argued that only a repetition of Cortes’s march to the valley of Mexico would end the war. When the administration first contemplated the expedition, Scott wrote the planning papers detailing the military requirements and establishing the operation’s feasibility. He estimated that 4,000 regulars and 10,000 volunteers would be needed and insisted that the Veracruz assault had to take place before yellow fever season began. Since little time remained to raise new regiments, Scott took more than half Taylor’s men, including almost all his regulars, and prudently ordered Old Rough and Ready to remain on the defensive. The expedition was a double blow to Taylor. Denied the opportunity to command it, he also lost most of his army. Polk and Scott, he fumed, had conspired to cut short his military career and deprive him of the 1848 Whig nomination.

The countryside which Scott entered was not unified. The internal dynamics of Mexican politics were determined by demographics. The turmoil at the top levels of the Mexican government - the rapid turnover of even the highest offices - mirrored deep divisions within Mexican society.

Some of these divisions had been fostered by the Spaniards earlier in Mexican history. Although Mexico had been independent of Spain since the early 1820s, various segments of society remained at odds with each other.

This would manifest itself during the war, as U.S. forces were welcomed in some areas and hated in others, and after the war, when the United States quickly became an ally of the nation it had so recently defeated. Historian Irving Levinson writes:

Unlike its British North American counterparts, colonial Mexico was a land in which the Indians and their offspring permanently outnumbered the European settlers and their descendants. Almost three centuries after European settlement began, the criollos (native-born whites) and the resident Spaniards together comprised barely 20 percent of Mexico’s population. That minority offered limited opportunity to the remainder of the population as the political, economic, and social levers of power in New Spain remained primarily under the control of Spanish officials and their acquisitive, resentful criollo colonists. In this environment, an arrangement emerged in which Indians who sought to retain control of some of their remaining preconquest lands received the protection of the Spanish Crown. In turn, the royal government used the Indians as a counterweight to colonists who sought to expand their own political and economic power at the expense of the metropolitan regime in Madrid. Also, the colony remained culturally divided as differing concepts of land ownership and political power generated continual conflict. These factors, combined with the heritage of a cruel Spanish conquest and of horrific conditions of forced labor, prevented the emergence of a unified colonial society.

While the Mexican government was not happy to lose the contested territory between the Rio Grande and the Nueces River, a significant number of Mexicans embraced the idea that the United States was the promulgator of the Monroe Doctrine.

The Mexicans had been encouraged by the example of the United States when they sought and gained their independence from Spain. The United States would also assist the Mexicans in retaining their independence when France attacked and attempted to subjugate Spain in the 1860s.