Too Short for a Blog Post, Too Long for a Tweet 139

Here are a few excerpts from a book I recently read, "Written Out of History: The Forgotten Founders Who Fought Big Government," by Sen. Mike Lee (R-Utah).



And, of course, there remained the vexing question of who could vote. Women were still blocked from the ballot box, as were slaves and indentured servants. Even free men could find themselves disenfranchised for not owning land. In Pennsylvania only 7,383 persons voted. In Virginia it was a mere 4,333. In our first presidential contest, in which balloting was conducted from December 1788 to January 1789, only 43,782 individuals in a nation of 4 million souls cast presidential ballots.  Had newly freed America merely become the world’s newest aristocracy?

Also critical to the Great Law of Peace was what it did not do—it did not meddle in

the internal governance of the constituent tribes. When the Great Council met to make important decisions, the representatives of each tribe would discuss the matter among themselves before a final verdict was rendered by the full council. Even other tribes who were absorbed into the confederacy through conquest had the right to continue to manage their own affairs, as long as they remained peaceful.  The idea of separate political entities uniting for common good but retaining their own rights—what later became known as federalism—did not miraculously materialize in the summer of 1787 in the State House at Philadelphia. It had been born centuries earlier in an Iroquois longhouse.

Mason’s Virginia Declaration of Rights drew upon the timeless wisdom found in the Magna Carta and other bills of rights, as well as all the writings of political philosophers, both ancient and modern. What made it stand out as an altogether new and more dangerous clarion call for freedom was its unabashed emphasis on the personal rights of every individual. Its bold language and sweeping, subversive contentions would pose an immediate threat to any king. But it was even more ahead of its time in another way. By Mason’s careful calculation, the document contained language that would eventually pose a threat to any man wishing to own another.

Once the convention resumed, George Mason got back to making his helpful and hopeful contributions. Up to that moment, so much of the debate had been about parliamentary facets of the emerging government. But as August wore on, Mason found himself repeatedly on the losing end of the most important issues nearest to his heart: free and open commerce. 

Mason could debate the finer points of whether the executive branch should be headed by one person or three—and he did!—but what really mattered to the Virginia planter was an assurance that this burgeoning new monstrosity would leave people’s business interests alone. 

For instance, he wanted the new constitution to specifically prohibit Congress from imposing any sort of taxes on exports. Even a compromise requiring taxes to be approved by a two-thirds supermajority vote in both houses of Congress failed. It failed narrowly, but it failed nonetheless. 

One compromise whose failure was especially troubling to Mason involved congressional meddling in navigation acts, which Mason viewed as a backdoor attempt at taxing exports. Mason, after all, was an expert on interstate commerce, being a merchant himself and having painstakingly negotiated trade deals between Virginia and Maryland. 

Empowering Congress to enact laws “by a bare majority,” Mason argued on September 15, “would enable a few rich merchants in Philadelphia, New York and Boston, to monopolize the staples of the Southern States, and reduce their value perhaps fifty percent.”

He urged fellow delegates in Philadelphia to prohibit any such “navigation acts” before the year 1808 without the consent of two-thirds support in both the House and the Senate. In other words, Mason wanted to set a very high bar for allowing the federal government to interfere with commerce between the states and abroad. 

Unfortunately for Mason, his was a lonely voice. Only his native Virginia, along with Maryland (whose delegates were certainly aware of Mason’s interstate commerce expertise) and Georgia shared his fear of federal interference in trade, and voted in favor of his motion. 

The rest of the Southern states that should have shared Mason’s fear of unfettered federal control over commerce had, it turned out, made a dirty side deal with industrial Northern states—one that would keep the booming slave trade in business. Mason would later recall with considerable regret how he lost the fight. 

“This business was discussed at Philadelphia for four months, during which time the subject of commerce and navigation was often under consideration,” he recalled to delegates to the Virginia ratifying convention. “Eight states out of twelve, for more than three months, voted for requiring two-thirds of the members present in each House to pass commercial and navigation laws. If I am right, there was a great majority for requiring two-thirds of the States in this business, till a compromise took place between the Northern and Southern States; the Northern States agreeing to the temporary importation of slaves, and the Southern States conceding, in return, that navigation and commercial laws should be on the footing on which they now stand.”

These debates over the government’s role in navigation and trade would eventually result in the Constitution’s Commerce Clause—in Article I, Section 8—which gives Congress the power “to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”

Mason’s frustrations came to a blistering head when the debate turned to slavery. Mason, himself an owner of slaves, called for an immediate end to the importation of new slaves. 

“Every master of slaves is born a petty tyrant,” Mason declared. “They bring the judgement of Heaven on a country. As nations cannot be rewarded or punished in the next world, they must be in this. By an inevitable chain of causes and effects, Providence punishes national sins by national calamities.”

Needless to say, this excoriation of slavery was met with hostile opposition from his fellow Southerners. And Mason’s fellow delegates from the North were all too happy to keep the slave trade alive if it meant they could get something of their own in the bargain. 

And what the Yankees wanted was to allow Congress a free hand in passing navigation regulations.