Far-left MSNBC anchor Lawrence O'Donnell on Tuesday spewed invective at the father of the Constitution, James Madison. Angry over Judge Richard Leon's insistence that Madison would be "aghast" at the National Security Agency's spying program, O'Donnell spewed, "We do know that James Madison would be aghast at interracial marriage. We do know that James Madison would be aghast at an integrated cabinet room in the White House, first with African-American members of the cabinet and now with an African-American president presiding over that cabinet." [MP3 audio here.]
An angry O'Donnell misinterpreted the three-fifths compromise in the Constitution, sneering, "It was Madison himself who made sure that slaves were counted in the Constitution as three-fifths of a human being." In fact, abolitionist and civil rights champion Frederick Douglass framed the compromise as a check on the slave-holding south.
In a speech on March 26, 1860, he insisted of the compromise:
It is a downright disability laid upon the slaveholding States; one which deprives those States of two-fifths of their natural basis of representation. A black man in a free state is worth just two-fifths more than a black man in a slave state, as a basis of political power under the Constitution. Therefore, instead of encouraging slavery, the Constitution encourages freedom by giving an increase of "two-fifths" of political power to free over free states. So much for the three-fifths clause; taking it at is worst, it still leans to freedom, not slavery; for, be it remembered that the Constitution nowhere forbids a coloured man to vote.
O'Donnell's commentary grew out of Judge Leon citing Madison when he ruled against the NSA's spying program.
Concluding his rant, the host excoriated, "What we do know is that James Madison would be aghast at the final judgment on Judge Leon's opinion being rendered by a United States Supreme Court that includes three women and a black man."
In fact, though Madison was a slave-holding man, his writings on the subject hardly reflect one comfortable with the institution. Some quotes from Madison on slavery:
"[The Convention] thought it wrong to admit in the Constitution the idea that there could be property in men."
-- James Madison, Records of the Convention, August 25, 1787
"We have seen the mere distinction of color made in the most enlightened period of time, a ground of the most oppressive dominion ever exercised by man over man."
-- James Madison, speech at the Constitutional Convention, June 6, 1787
"Another of my wishes is to depend as little as possible on the labour of slaves."
-- James Madison, Letter to R. H. Lee, July 17, 1785
"[I]f slavery, as a national evil, is to be abolished, and it be just that it be done at the national expense, the amount of the expense is not a paramount consideration."
-- James Madison, Letter to Robert J. Evans
But perhaps these quotes didn't fit O'Donnell's cartoon image of the man behind America's Constitution.
A transcript of the December 17 segment is below:
LAWRENCE O'DONNELL: In the rewrite tonight, James Madison versus the NSA. Yesterday, federal court judge Richard Leon wrote a decision finding that the National Security Agency's massive collection of phone records is an unconstitutional invasion of privacy which. The judge was in effect rewriting a 1979 Supreme Court decision which held that it was not an invasion of privacy for the government to examine phone records maintained by telephone companies without a warrant.
The 1979 ruling held that we had a reasonable expectation of privacy for the content of our telephone calls but that we had no reasonable expectation of privacy when it came to the records of our phone calls that are maintained by telephone companies for billing purposes.
Other federal judges have relied on that 1979 case, Smith versus Maryland, in finding the NSA data collection programs are, indeed, constitutional. Overruling the Smith case is the necessary linchpin of Judge Leon's decision and he does it by asking and answering this question:
"When do present day circumstances, the evolutions in the government's surveillance capabilities, citizens' phone habits and the relationship between the NSA and telecom become so thoroughly unlike those considered by the Supreme Court 34 years ago that a precedent like Smith simply does not apply? The answer unfortunately for the government, is now.
So, there is Judge Leon saying, 34-year-old constitutional thinking is now outdated. But then, Judge Leon relies on 226-year-old constitutional thinking for the most dramatic flourish in his opinion.
"Indeed," Judge Leon writes, "I have little doubt that the author of our constitution, James Madison who cautioned us to beware the abridgement of freedom of the people by gradual and silent encroachments by those in power would be aghast." That line is there as nothing more than a rhetorical flourish, an attention getter for the media and it worked. Everyone has been quoting that line. But that line has no legal meaning or import. It's something judges do all the time to try to align their decision with the great minds, the Founding Fathers.
There is no more abused judicial advice to invoke one of the Founding Fathers and assign a judicial opinion to him. And politicians do it all the time, too, telling you that the Founding Fathers would be aghast at this or that. Let's just get something straight about the Founding Fathers. We have no idea how they would react to the modern world. Judge Leon's opinion is a well-written, well-reasoned opinion that might prevail on appeal and it might not. But we can only hope that the appeals court judges considering this case will stick with the facts of the case and the applicable law and the Constitution and spare us the mind reading of men who have been dead for a couple of hundred years.
Judge Leon would have us believe that James Madison would be aghast at NSA data collection. James Madison would be aghast at the existence of the telephone. He would be aghast at air travel, not to mention the internal combustion engine and birth control pills. We can only wish that James Madison had been more aghast at the outrages against the principles of the Constitution that he did nothing to correct, things far more insidious and evil than anything the NSA could dream up. James Madison was president of the first country in the world to hold this truth to be self-evidence that all men are created equal, but James Madison was not aghast at slavery. James Madison was not aghast at denying women the right to vote. But that same James Madison would be aghast at NSA data collection.
When James Madison wrote the Constitution, he was a 36-year-old Virginia slave owner. He seemed to be, at times, somewhat troubled by slavery but that didn't prevent him from profiting from it. It also didn't prevent him from making sure that slaves would be counted in the census so that the southern slave owners like him would be overrepresented in the House of Representatives because they were allowed to count their slaves in the census even though the slaves had no rights of citizenship. It was Madison himself who made sure that slaves were counted in the Constitution as three-fifths of a human being.
In his eight years as president, James Madison didn't lift a finger to stop slavery. After his presidency, Madison wrote a letter to the Marquise De Lafayette at saying quote "the two races cannot co-exist both being free and equal, the great sine qua non therefore is some external asylum for the colored race." James Madison became a supporter of a group whose goal was to free slaves and transport them to Africa or to the American west. In another letter, Madison wrote that, quote, "the physical peculiarities of those held in bondage," end quote, would always prevent integration.
So, we do know what James Madison would be aghast at. And we do know that James Madison would be aghast at interracial marriage. We do know that James Madison would be aghast at an integrated cabinet room in the White House, first with African-American members of the cabinet and now with an African-American president presiding over that cabinet, a president elected by a national coalition of voters that included African-Americans and women, people who James Madison could never imagine even having the right to vote. But we have absolutely no way of knowing if James Madison would be aghast at the tools that that president authorizes the NSA to use to, among other things, protect the country from terrorist attack by haters of America who believe they have a religious imperative to kill as many non-combatant American citizens as possible, people who have committed no greater crime against those terrorists than going to work in the world trade center on September 11th.
We have no idea whether James Madison would be more aghast at Al-Qaeda than he would at the NSA. And Judge Leon doesn't know that either. What we do know is that James Madison would be aghast at the final judgment on Judge Leon's opinion being rendered by a United States Supreme Court that includes three women and a black man.