Writers Read: D.W. Buffa

D.W. Buffa was born in San Francisco and raised in the Bay Area. After graduation from Michigan State University, he studied under Leo Strauss, Joseph Cropsey and Hans J.

Morgenthau at the University of Chicago where he earned both an M.A. and a Ph.D. in political science. He received his J.D. degree from Wayne State University in Detroit. Buffa was a criminal defense attorney for 10 years and his seven Joseph Antonelli novels strive to reflect, from his own experience, what a courtroom lawyer does, the way he (or she) thinks, and the way he feels about what he does.

In Buffa's new novel, Immunity, the President of the United States has ordered the murder of his political opponents—and the Constitution seems powerless to stop him.

Here is Buffa's take on the Lost History of the American Constitution:

In February of 1941, J.P. Lippincott Co. published a limited edition of the five volumes of Elliot’s Debates, originally published under the sanction of Congress in 1830. This limited edition of 750 sets, entitled “The Debates of the several State Conventions on the adoption of the Federal Constitution, as recommended by the General Convention at Philadelphia, in 1787,” has never been republished. It is out of print, unavailable; the ratification debates have vanished from memory, no longer part of our history. Had they been available, had they been there for lawyers and judges, congressmen and senators, and every day citizens to read and study, we would have known, among other things, that the future Chief Justice, John Marshall, thought it a matter almost too obvious for comment that, unlike a British King, an American President could never have immunity for crimes or misconduct while he was in office, and that James Madison, who, more than anyone else, designed the American Constitution, insisted that a President could be removed from office, not after conviction in an impeachment trial, but the moment he was suspected of an impeachable offense.

The Constitutional Convention finished its work in September of 1787. Ratification, it was agreed, required the approval of nine of the thirteen states. When the Virginia Ratifying Convention met on June 2, 1788, eight states had already ratified. If Virginia ratified, America had a Constitution; if Virginia failed to ratify, the Union was almost certain to dissolve. There were 168 delegates to the convention, and, while each of them had a vote, most were content to listen. That, as it turned out, took some effort of its own. Patrick Henry’s first speech, given in opposition to ratification, was close to nine thousand words. The “public mind,” he insisted, “as well as my own, is extremely uneasy at the proposed change of government.” Governor John Randolph replied in a speech nearly as long. Unlike Henry, Randolph had been a delegate to the Constitutional Convention, but, like Henry, he had opposed it.

“I refused to sign, and if the same were to return, I would still refuse; but as I think that those eight states which have adopted the Constitution will not recede, I am a friend of the Union.” If Virginia were now to reject the Constitution, it would produce disunion, and union, lost now, was lost forever. Without a union of the states, there would instead of peace be “licentiousness, insecurity, and oppression.”

Henry rejected this out of hand. The danger was not from the failure of union; the danger was from a new government that did not include a bill of rights. “I am not well versed in history, but I will submit to your recollection, whether liberty has been destroyed more often by the licentiousness of the people, or by the tyranny of rulers.”

James Madison was quick with a reply. The most frequent cause of despotism in republics, he reminded them, is a majority “trampling on the rights of the minority.”

In what became a pattern, Patrick Henry ignored what was said and launched a different attack. The government Madison and the others proponents of the Constitution want was not a republic at all. It “squints toward monarchy.” Enraged by his own accusations, he charged that, “Your President may easily become a king.” A President with ambition and ability can “render himself absolute! The army is in his hands….” If he violates the law, “will not the recollection of his crimes teach him to make one bold push for the American throne? Will not the immense difference between being master of everything, and being ignominiously tried and punished, powerfully excite him to make this bold push?”

At the end of this speech, Henry admitted, “I have, I fear, fatigued the committee.” But he had not fatigued himself. “I have not said one hundred thousandth part of what I have in my mind, and wish to impart.”

This, it is easy to imagine, was not a prospect anyone was likely to look forward to. Instead of proceeding in order, taking up one clause of the Constitution at a time, Henry, and a few others, talked about everything they could find to criticize. Some of those criticisms were deeply personal. Governor Randolph became incensed.

“I find myself attacked in the most illiberal manner by the honorable gentleman. I disdain his aspersions and insinuations. His asperity is warranted by no principle of parliamentary decency, nor compatible with the least shadow of friendship; and if our friendship must fall, let it fall, like Lucifer, never to rise again!”

Henry immediately got to his feet and insisted that he had not meant to “wound the feelings of any gentleman; and he was sorry if he offended the honorable gentleman without intending it.”

Randolph replied that he was relieved by what Henry had said, but then goes on to say, “I beg the honorable gentleman to pardon me for reminding him that his historical references and quotations are not accurate. If he errs so much with respect to his facts, as he has done in his history, we cannot depend on his information or assertions.”

This did not stop Henry from speaking, nothing ever could; but he was not taken as seriously as some of the others who argued against ratification. James Monroe, who would one day become President himself, was concerned that the President would have too much power. Like most educated men of his time, Monroe knew ancient history. After describing the governments of Athens, Sparta, and Thebes, he read several passages from Polybius to underscore the necessity of enforceable limitations on executive power.

“Our great unalienable rights ought to be secured from being destroyed by such unlimited power, either by a bill of rights, or by an express provision in the body of the Constitution.” The President, he observed, has a four year term, “and is not excluded from re-election. Suppose he violates the laws and Constitution, or commits high crimes. By whom is he to be tried?” Because he “commands the army of the United States till he is condemned,” there is little chance a trial would ever take place. And, without a limit on how long he can serve, “I presume that once he is elected, he may be elected forever.”

This was one of the few times the future President spoke. John Marshall, who would become Chief Justice of the Supreme Court, spoke only a few times as well. Monroe thought the President had too much power; Marshall insisted that there was an essential difference between the American President under the proposed Constitution and the British monarch. It was a comparison that, had the ratifying debates been available, might have given the present Supreme Court a better understanding of the powers a President really has. “If your President was not accountable for his conduct, - if it were a constitutional maxim, that he could do no wrong, - would you be safer than you are now? If you can answer, yes, to these questions, then adopt the British constitution.” In other words, have a king.

The convention was basically divided over three issues: the power of the presidency, the status of the state militia, and whether amendments - a bill of rights - should be made before ratification. George Mason, who was one of George Washington’s closest friends, had been a delegate to the Constitutional Convention and, like Governor Randolph, had refused to sign. Unlike John Randolph, he was still opposed, but unlike Patrick Henry, he had a well-ordered mind and great respect for those with whom he disagreed. Precisely because he knew Washington so well, he understood that the kind of power Washington had been given during the Revolutionary War could never safely be given to anyone else. The Presidency, as proposed, was almost certain to become a monarchy. It would not happen at the beginning, because the first President would be that “one great man, who, he believed, would be unanimously elected,” but no one after Washington would be that selfless. That was the reason Mason could say, “I abominate and detest the idea of a government, when there is a standing army. The militia may be here destroyed by that method which has been practiced in other parts of the world before: that is, by rendering them useless - by disarming them.” By doing this, the national government will let the militia perish, “in order to have a pretense of establishing a standing army.”

The idea of a militia sounds quaint to those grown used to million man armies and billions spent on defense, but the militia then was considered one of the main bulwarks of freedom. In Virginia every male adult was liable for service. Under the present government, Mason pointed out, “all ranks of people,” rich and poor alike, “are subject to militia duty.” The problem was how to keep them properly armed. Attempts to have the militia completely armed had failed. Everyone was supposed to own a rifle; Jefferson had wanted the state to supply one to anyone could not afford one. All of this because the militia was seen as the sole alternative to a standing army. There could be no government without the means to enforce the law and defend against Indian attack and foreign invasion. Mason wanted, at a minimum, an express declaration that the state governments had authority to a arm and discipline the militia. Without that, there would be no protection from a national government, and, specifically, a President who wanted to become a king.

Mason did not get what he wanted, but, later, the Second Amendment guaranteed the right to bear arms to make certain that the federal government could not eliminate the state militias. The connection between the right to bear arms, and the purpose for which that right was guaranteed, has been quite lost on those who have never read the debate.

James Monroe insisted that the first President elected “may continue in office for life;” Mason explained exactly how it would happen. It would happen when a President was accused of treason. Impeachment proceedings are begun and the President is put on trial. But, because he “is not removed from his office during his trial…he has the command of the army and navy, and may surround the Senate with thirty thousand troops.” This, for Mason, is the reason that the President should be made ineligible for a second term, and that he should not have the power to pardon, “because he may frequently pardon crimes which were advised by himself.” Moreover, if he can grant pardons, “before indictment, or conviction, may he not stop inquiry and prevent detection?” As things stand, without changes the Presidency will become nothing more than an “elective monarchy.”

James Madison had an answer, and while it did not persuade George Mason to change his mind about the Constitution, it may well have given sufficient assurance to those still undecided to vote for ratification. Madison told Mason that he was wrong: the President would be removed from his office during his trial: “There is one security in this case to which gentlemen may not have adverted: if the President be connected in any suspicious manner, with any person, and there be grounds to believe he will shelter him; they can remove him if found guilty; they can suspend him when suspected, and the power will devolve on the Vice-President. Should he be suspected, also, he may likewise be suspended till his impeachment and removal, and the legislature may make a temporary appointment. This is a great security.”

It was Madison’s specific genius that he could judge the strength of the arguments on both sides of a question, and then, with a rare generosity of mind, acknowledge when he had not, on a first examination, seen things as clearly as he should have. Eight months earlier, in the Constitutional Convention, he had opposed what he had now come to believe was an essential, an indispensable, protection against the abuse of Presidential power. He had thought suspension before conviction gave too much power to the House of Representatives, that a Congressional majority might, without proper cause, remove a President who had not done anything to warrant suspicion of impeachable crimes; but now, persuaded that the more serious danger was a President who, unlike the House of Representative, had command of the army, Madison made the argument that, it is not too much to say, saved the Constitution, and saved the Union.

There was only one argument Mason and the other opponents could make, and they made it over and over again: Nothing was safe without a bill of rights, an enumeration of all the things government could not do. Madison insisted it was not necessary; that, for example, the “best and only security for religious liberty” was not a written statement, but the “multiplicity of sects” that made a dominant religion impossible. More importantly, if there was a need for amendments, they could be added after ratification. The demand that they be added before ratification would cause every state, including those that had already ratified, to “think herself equally entitled to propose as many amendments” as Virginia, which had proposed not less than forty. The demand for previous amendments, Madison declared, “are but another name for rejection.”

Finally, after three full weeks of unending debate, the convention was ready for a vote; a vote, everyone understood, that would decide, not just whether Virginia would approve the Constitution, but whether there would be a Union, a United States. Madison reminded them of the example America had already set for the world.

Nothing “has excited more admiration in the world than the manner in which free governments have been established in America; for it was the first instance, from the creation of the world to the American revolution, that free inhabitants have been seen deliberating on a form of government, and selecting such of their citizens as possessed their confidence, to determine upon and give effect to it.”

The vote to ratify the Constitution, the vote that made Virginia the ninth state to ratify, the vote that brought the American Constitution into being, passed 89 to 79. It was a margin so narrow, that it is fair to say that every argument made by Jame Madison was essential, especially his assurance that a President suspected of impeachable offenses could be suspended from office before the impeachment trial began.