To hear the Obama administration tell it, there are few things worse than anonymous political activity. Just recently, Health and Human Services Secretary Kathleen Sebelius told the Christian Science Monitor:

The untold story of 2010 is not the “tea party” or not the health-care bill, or a number of these issues. It is the amount of money that is flowing in districts around the country and particularly the amount of anonymous money….

I haven’t been any place where there aren’t dozens of ads now being run and nobody knows who is behind them…I am used to a political system where people engage in battles and you know who brought them to the dance.

But is anonymous political speech really that new – or that bad?

Indeed, anonymous political speech isn’t just a great American tradition. It helped create the United States of America. The Federalist Papers, the series of essays that influenced the adoption of the Constitution, were published under the pseudonym “Publius” (in reality James Madison, Alexander Hamilton, and John Jay). The anti-Constitution position was in turn articulated by “the Federal Farmer,” whose identity remains a mystery.

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The Constitution of the United States of America is a remarkable document.  It is eloquent in its simplicity, clarity and in its power.  It revolutionized (first in America, and then throughout most of the western world) the relationship between those who are governed and those who govern.  It has served as a governing template for much of the democratic western world.

Every federal office holder swears allegiance to the Constitution, not to any leader, not to any party, not to any political philosophy—only to this document, which is the foundation upon which our form of government is based and against which all legislation and judicial actions are measured.  The President vows to do his job faithfully and, to the best of his ability, to preserve, protect, and defend the Constitution of the United States.

And while there is no way of divining what today’s crop of leaders would have thought of the Constitution had they been present at the founding when it was first circulated prior to ratification, we have our doubts whether many of today’s ruling class, including President Obama, would have found common cause with Washington, Adams (John), Jefferson, Franklin, Madison, Hamilton or Jay, all of whom loomed so large on the emerging American landscape.

This speculation is not intended as criticism of our political leadership or of the president.  Many great American patriots who were present at the founding opposed ratification of the Constitution.  Indeed, such American icons as Patrick Henry, Samuel Adams, John Hancock, George Mason and James Monroe, were resolutely opposed to ratification of the Constitution, so wary were they of concentrated federal power. Time has, of course, demonstrated the remarkable wisdom of those who fought for ratification and the value of the gift they bequeathed to us all.  The question raised by this essay, however, is posed as the basis for discussion of whether a document written so long ago, which lays out with simplicity certain fundamental rules and relationships, can truly guide this nation 221 years later.

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Thomas Paine. John Jay. Take a survey of current conservative/libertarian activists and you will probably find Paine’s numbers higher on the recognition scale. Everybody, it seems, likes to quote him. Even Ronald Reagan used Paine’s words when he said, “We have the power to begin the world anew.” Paine’s Common Sense was the catalyst as the American colonies reluctantly concluded that independence from Britain was necessary. His Crisis series of newspaper articles, begun at a low point in the American Revolution, are stirring. Even many of our poorly educated students probably can recall hearing these words somewhere: “These are the times that try men’s souls.”

Thomas Paine: Wordsmith

Yet this man who made such an impact on the early days of the Revolution was an utter failure in business back in England, was dismissed from his position as excise officer because of neglect of duty, and separated from his wife in 1774 just as he decided to emigrate to America. If not for Common Sense, in particular, his influence on the new nation would have been negligible. Some people are great with words and little else. Paine fit that mold.

When the American Revolution ended, he tried his hand at inventing, but being unsuccessful at that, he eventually traveled to France to take part in the Revolution stirring there. He became a French citizen, served in the Convention [legislature], though without distinction [he couldn't speak French], and ended up in prison when the Revolution took an even more radical turn. Only the intercession of the American ambassador James Monroe extricated Paine from that predicament.

He then wrote The Age of Reason, an attack upon Christianity that did not go over well with the American public. Upon returning to America in 1802, he was not well received because of his radical religious views. Poverty, poor health, and alcoholism dominated his final years; his funeral in 1809 was attended by six people.

The name John Jay is relegated to the dim recesses of this same time period, at least among those who have only a cursory knowledge of the beginnings of the United States. Those who have studied it in depth realize what a debt is owed this man.

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THE SECOND class of powers, lodged in the general government, consists of those which regulate the intercourse with foreign nations, to wit: to make treaties; to send and receive ambassadors, other public ministers, and consuls; to define and punish piracies and felonies committed on the high seas, and offenses against the law of nations; to regulate foreign commerce, including a power to prohibit, after the year 1808, the importation of slaves, and to lay an intermediate duty of ten dollars per head, as a discouragement to such importations.

This class of powers forms an obvious and essential branch of the federal administration. If we are to be one nation in any respect, it clearly ought to be in respect to other nations.

The powers to make treaties and to send and receive ambassadors, speak their own propriety. Both of them are comprised in the articles of Confederation, with this difference only, that the former is disembarrassed, by the plan of the convention, of an exception, under which treaties might be substantially frustrated by regulations of the States; and that a power of appointing and receiving “other public ministers and consuls,” is expressly and very properly added to the former provision concerning ambassadors. The term ambassador, if taken strictly, as seems to be required by the second of the articles of Confederation, comprehends the highest grade only of public ministers, and excludes the grades which the United States will be most likely to prefer, where foreign embassies may be necessary. And under no latitude of construction will the term comprehend consuls. Yet it has been found expedient, and has been the practice of Congress, to employ the inferior grades of public ministers, and to send and receive consuls. It is true, that where treaties of commerce stipulate for the mutual appointment of consuls, whose functions are connected with commerce, the admission of foreign consuls may fall within the power of making commercial treaties; and that where no such treaties exist, the mission of American consuls into foreign countries may PERHAPS be covered under the authority, given by the ninth article of the Confederation, to appoint all such civil officers as may be necessary for managing the general affairs of the United States. But the admission of consuls into the United States, where no previous treaty has stipulated it, seems to have been nowhere provided for. A supply of the omission is one of the lesser instances in which the convention have improved on the model before them. But the most minute provisions become important when they tend to obviate the necessity or the pretext for gradual and unobserved usurpations of power. A list of the cases in which Congress have been betrayed, or forced by the defects of the Confederation, into violations of their chartered authorities, would not a little surprise those who have paid no attention to the subject; and would be no inconsiderable argument in favor of the new Constitution, which seems to have provided no less studiously for the lesser, than the more obvious and striking defects of the old. (more…)

AFTER an unequivocal experience of the inefficiency of the subsisting federal government, you are called upon to deliberate on a new Constitution for the United States of America. The subject speaks its own importance; comprehending in its consequences nothing less than the existence of the UNION, the safety and welfare of the parts of which it is composed, the fate of an empire in many respects the most interesting in the world. It has been frequently remarked that it seems to have been reserved to the people of this country, by their conduct and example, to decide the important question, whether societies of men are really capable or not of establishing good government from reflection and choice, or whether they are forever destined to depend for their political constitutions on accident and force. If there be any truth in the remark, the crisis at which we are arrived may with propriety be regarded as the era in which that decision is to be made; and a wrong election of the part we shall act may, in this view, deserve to be considered as the general misfortune of mankind.

This idea will add the inducements of philanthropy to those of patriotism, to heighten the solicitude which all considerate and good men must feel for the event. Happy will it be if our choice should be directed by a judicious estimate of our true interests, unperplexed and unbiased by considerations not connected with the public good. But this is a thing more ardently to be wished than seriously to be expected. The plan offered to our deliberations affects too many particular interests, innovates upon too many local institutions, not to involve in its discussion a variety of objects foreign to its merits, and of views, passions and prejudices little favorable to the discovery of truth.

Among the most formidable of the obstacles which the new Constitution will have to encounter may readily be distinguished the obvious interest of a certain class of men in every State to resist all changes which may hazard a diminution of the power, emolument, and consequence of the offices they hold under the State establishments; and the perverted ambition of another class of men, who will either hope to aggrandize themselves by the confusions of their country, or will flatter themselves with fairer prospects of elevation from the subdivision of the empire into several partial confederacies than from its union under one government.

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