Constitution Writing (Theirs vs.Ours)

* The Sunday talk shows featured the US Ambassador to Iraq, Zalmay Khalilzad, demanding to know whether the Iraqis will meet today's deadline for finishing a new constitution for the nation.

* Having just finished David McCullough's best-selling history of our founding year, "1776", it is useful to remember our own history when it comes to constitution writing. It didn't go all that smoothly.

* 1776 was, as we learned in third grade, the year of the Declaration of Independence. However, the war was going so badly, that 1776 was also the year that the Continental Congress, having written, signed, and published the Declaration, skedaddled out of Philadelphia and hid out in Baltimore on the theory that, as they used to say, the British were coming.

* But do you remember the date that the Revolutionary War ended? Yes? In the back? Correct. October 17, 1781 when General Cornwallis surrendered to General Washington at Yorktown, after more than five additional years of war.

* According to the Library of Congress' summary of that year, even 1781 was not all that swell: "The beginning of the year, arguably, witnessed perhaps the low point of American morale during the Revolution."

* And the "Preliminary Articles of Peace" officially ending the fighting, was not signed until over a year later, on November 30, 1782. This was followed, on September 3, 1783 - yet ANOTHER year later - by the Treaty of Paris which recognized the United States of America as a sovereign nation.

* But that wasn't the end of the problems associated with nation building. The Continental Congress (having returned to Philadelphia) had adopted, in July, 1777, what came to be known as the "Articles of Confederation and Perpetual Union" which went into effect on March 1, 1781 - four years later.

* The Articles were so flawed that, according to MSN's Encarta Encyclopedia "On February 21, 1787, Congress called for a Constitutional Convention to be held in May to revise the articles."

* If you haven't been keeping track, this would now be 10 years, 7 months, and 17 days after the Declaration of Independence.

* The Constitutional Convention began on May 25, 1787 and ended on September 17, 1787 when the text was sent to the states for ratification.

* Nine states out of the 13 were necessary to adopt the Constitution. Delaware, realizing that the small states were getting a really good deal, ratified first on December 7, 1787.

On June 21, 1788, New Hampshire became the ninth state to ratify, thus making the Constitution legally effective. But without ratification by New York and Virginia, it was doubtful the Constitution could succeed.

Virginia ratified four days later, but by the narrow margin of 10 votes out of 168 cast. New York finally ratified on July 26, by a vote of 30 to 27. North Carolina eventually ratified in 1789, and Rhode Island in 1790.

* So, it took from 1776 until 1790 for the United States to go from declaring its independence from England to final adoption of the document under which it would operate for the next 215 years.

* Based upon that, the Iraqis could take until 2016 to get this all done and still beat the US timetable by a full year.

* The Iraqis were freed of the tyranny of Saddam Hussein in April 2003. In June 2004 they accepted the return of sovereignty. In January 2004 they held elections. In August-September 2005 they will finish drafting a constitution. In October 2005 they will hold a referendum on that constitution. In December 2005 they will hold elections for a permanent government.

* As lawyer-actor-Senator-actor Fred Thompson's character (Adm. Josh Painter) in "The Hunt for Red October" said, referring to Jack Ryan, "Now, it's up to you, Charlie, but you might consider cuttin' the kid a little slack."

Thank you very much for posting this. I've been getting progressively madder at the historical ignorance of the MSM which is getting its panties in a wad over a few days' delay in the presentation of the new Iraqi Constitution.

Put in the historical context of the writing of the final American Constitution, it is a BFD.

Hi, Rich,

I had the pleasure of seeing you speak at the NC Republican Convention in Asheville, recently.

I am delighted to see someone write an in-your-face what-the-hell-do-three-days-matter article, using the US experience as an object lesson. Just a few corrections.

The Articles did not take four years to get ratified. They took ten years. The hold-up was that Maryland insisted that Virginia abandon their claim to all western land beyond the Appalachians, to California as it turned out. Virginia took its own sweet time on that.

Congress did NOT call the the Constitutional Convention in Philadelphia. That call came from the Final Report of the Annapolis Convention, unsuccessfully held in 1786. Alexander Hamilton wrote the final report from that Convention, at the direction of John Dickinson, which invited all states to meet in Philadelphia, the following May. Seven states had already accepted and committed to go, before Congress passed its Resolution. (Congress was trying to steer the direction of that Convention by jumping on the bandwagon which was nearly out of town at that point.)

To see that Congress had no authority to call a Convention, look at three sources. First is the opening words of the Resolution itself. It reads, "Resolved that in the opinion of Congress...." (Emphasis added.) Also look at Article 23 of the Articles of Confederation. That is its amendment clause. There is no power to call a convention given to Congress. Also, look at American history. All prior meetings of state representatives had occurred at the choice and direction of the states themselves, beginning with the Albany Congress in 1774 where Ben Franklin first proposed a unicameral legislature.

For a full history of the proposal, writing and ratification of the Constitution and the ten (but eleven, now) articles in the Bill of Rights, see my Introduction to the facsimile reprint of Robert Yates' Secret Proceedings and Debates of the Convention to Form the US Constitution, Linn-Henley Research Library, 1988. Yates was the leading Anti-Federalist who sought to defeat the Virginia plan for the Constitution in Philadelphia, and failing that he returned to New York and sought to defeat ratification there.

If you have any questions about this arcane subject on which the MSM is blissfully ignorant, give me a call. I acquired this semi-useless information by practicing in the US Supreme Court for 32 years.

By the way, that was a dynamite quote you chose to end your article.

Cordially,

John /s/

Congressman Billybob

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