Plain, Honest Men: The Making of the American Constitution
By Richard Beeman
Random House, 2009

Review By Ronald Goldfarb

Some subjects are of endless interest and continuing relevance, open to continuing interpretation. The Constitutional Convention of 1787 in Philadelphia is one such subject. Histories, chronicles, diaries, and records of the convention fill library shelves. As our scholars, courts, and politicians grapple with the evolution of the Constitution as both a legal text and a living, changing political document, harkening back to the convention is elucidating. Fifty-five, mostly young aristocratic men met from May 25, to September 17, 1787, in the Pennsylvania State House and devised in “four elegant parchment pages of text” a new form of government that has sustained this country for more than 220 years.

Richard Beeman’s title, Plain, Honest Men: The Making of the American Constitution, is a misnomer. After all, these Founding Fathers were hardly plain men. They were “products of a provincial world,” he writes. However, they were extraordinary men—James Madison was 37, Benjamin Franklin an historic philosopher, George Washington a war hero. As extraordinary political theorists, they drew a brilliant blueprint for federalism and representative government. They also planted the seeds for the Bill of Rights (George Mason’s notable contribution) that Congress, led by Madison, adopted four years later. “Plain” and “honest” are not the words I would use to describe these gentlemen—brilliant, precocious, flawed, and visionary are more apt depictions.

But that’s a quibble. Beeman, a professor of history at the University of Pennsylvania, incorporates brief but elucidating vignettes about the key dramatis personae—the better-known figures such as Franklin, Alexander Hamilton, Madison, Mason, and Washington, and lesser-known but influential forces Elbridge Gerry, Luther Martin, Gouverneur Morris, Charles Pinckney, and Roger Sherman. (Thomas Jefferson was in Paris communicating throughout the convention but not personally participating.) Beeman explains how their experiences, charisma, and in the case of Madison and James Wilson, erudite study affected the Constitution that would emerge. The need for a strong central government was rooted in the perceived flaws in the Articles of Confederation. A balance of power between the states and the central government was the key then, as it is today. Madison’s remarkable education led him to conclude there was a need for the transformation from “a weak confederation into a strong, unified nation.”

The delegates trickled into town. Washington and Madison, who arrived before the other attendees, bonded and prepared for the debates that would follow. They were entertained by Franklin. The gentleman planter Mason, the principal author of the Virginia Declaration of Rights, arrived with a few of his slaves to care for him and his horses, and soon was joined by the more mercantile-oriented Robert Morris, and transplanted New Yorker, Gouverneur Morris. Living in boarding houses, dining together, and entertained by the local social elite, they were eventually joined by others. A quorum was reached on May 25 with 27 delegates from seven states. A bold plan was ready to be considered. It would be “one of the epochal events of American history,” Beeman writes.

Beeman’s biographies of thinking players are edifying, except when he lapses into psychohistory, imagining private conversations or likely attitudes of the key parties. A long-time Philadelphia-based historian of revolutionary era politics, Beeman writes graphically of the setting near the convention hall, incorporating colorful details to describe the open markets where floggings occurred, prostitutes and pick pockets roamed, animals were slain, and taverns proliferated.

After adopting its rules and electing its officials, the key substantive issue at the convention was whether to give equal votes to both the smaller and larger states—a subject that still haunts the United States today. Early debates centered on fundamental issues—a two-house national legislature, a tripartite form of government, the relation of the states to the national government, and the overall question of whether to revise or supplant the Articles of Confederation. An interesting feature of the convention was the decision to maintain the secrecy of these proceedings; although Madison did keep notes, they were not published contemporaneously. The idea was that secrecy—rigorously maintained—would help in consensus building, and the verdict of historians is that it did.

On the theory that the legislative branch is most amenable to the people, and thus the essence of a “republican” system of government, the delegates wrestled long and contentiously with what should be its ideal nature and prominence. The Virginia and South Carolina plans reflected the various views about the desirability of two houses—a popular apportioned and representative entity, and a smaller more select aristocratic house. There was a widely shared philosophical commitment to “the people,” Beeman writes, but a more classist view of the limited intellectual nature of those same people. Ordinary citizens trusted with the public interest frightened many of the delegates who preferred that affairs of state be limited to the propertied, wealthy class.

Bicameralism prevailed. A compromise—the Connecticut plan—resulted in a popularly elected House and an equal vote for all states in the Senate. But it was “a long, painful . . . intellectually barren debate,” Beeman writes.

Many significant concerns the delegates faced were tied to the issue of slavery, including the proportionality of state representation. Beeman suggests slavery was as much a commercial issue as a human one. The odious three-fifths compromise, a deal reached between southern and northern states in which a portion of the slave population would be counted for enumeration purposes, had to do with measuring wealth as well as population. The slave states sought to augment their representation in government by their economic contribution, one measure of which was their slave “property.” For taxation or representation, the claim was economically motivated, Beeman concludes. Of the 55 delegates, 25 owned slaves—slavery was a fact of life, however inconsistent the notion was with protestations of equality and liberty that were repeatedly avowed in early government pronouncements. The Founding Fathers’ rhetoric was not matched by their practices. There was “the near-total absence of anything resembling a moral dimension to the debate” over slavery, Beeman admits. The question of power and property was mixed with deep-seated racism. While the three-fifths compromise did lead to a bargain that included eliminating slavery in the Northwest Ordinance, its adoption also infected the fugitive slave trade clause which countenanced slavery and made opponents complicit in its continuation. “There are no moral heroes to be found in the story of slavery and the making of the American Constitution,” Beeman reveals.

Wrestling with the nature of the presidency—how to choose, get rid of, grant powers—came next. The delegates drew upon their experiences. They deeply distrusted royal or monarchial leaders, and the accumulation of power in any one person. Misgivings about “executive magistracy” led some to seek legislative power over the president. Direct election prevailed, despite fears the electorate might be gullible or insufficiently intelligent. How delegates eventually adopted the questionable idea for the electoral college, presidential veto power, and Congress’ impeachment power, all have relevance today.

It is interesting how much of this distant episode in American history has relevance even still. For example, although the Founding Fathers were God-fearing, religious men, they drew careful lines between the roles of church and state in the new republic. Beeman’s mastery of Philadelphia’s people, scenery, weather, and society brings the dry record of these events to life. His treatment becomes bogged down when he analyzes every nuance of every proposal. The later ratification conventions in the states could have been more interestingly presented, demonstrating how the document, then as now, was a work in progress and susceptible to profound considerations.

Reviewing this remarkable bit of American history reminds readers that the debates about the role of the people, the smaller states, and the powers of the separate branches were as provocative then as they are today, and that imperfect, high-minded people can make wise and workable compromises and costly errors. The creation of our “more perfect Union” was extraordinary; all the moreso imagining what a comparable event today might look like.

Ronald Goldfarb is a Washington, D.C., attorney, author, and literary agent whose reviews appear regularly in Washington Lawyer.

The Emperor’s New Clothes: Exposing the Truth From
Watergate to 9/11
By Richard Ben-Veniste
Thomas Dunne, 2009

Review By Leonard H. Becker

The title of Ben-Veniste’s new book is revealing—perhaps more so than the author intends. Hans Christian Andersen’s fable of the emperor’s nonexistent wardrobe turns on the point that, of all the people in the kingdom, only one, a small child, has both the smarts to see that the emperor is naked and the courage to say so. In Ben-Veniste’s memoir, the author comes across as the Lone Ranger of the Legal Pad, single-handedly cooking Richard Nixon’s conspiratorial goose before the Watergate grand jury; ferreting out corruption in the office of the Speaker of the House; defending a victim of government duplicity in the Abscam scandal; striving to protect Bill Clinton from impeachment-minded Republicans; and fighting the good fight, as a Democratic member of the 9/11 Commission, to defend truth and justice against the Bush administration’s ceaseless stonewalling.

Ben-Veniste’s book, like Wagner’s music, is not as bad as it sounds. The author has assembled a breezy recollection of high points in his admirable career—one of a capable, indefatigable lawyer who has contributed mightily to public service over four decades. (Thomas H. Kean and Lee H. Hamilton, chair and vice chair, respectively, of the 9/11 Commission, describe Ben-Veniste in their history as “one of the most tenacious lawyers in Washington,” which has to be saying something.[1]) Readers who are looking for an objective recounting of Watergate, Abscam, Whitewater, or the 9/11 investigation, or a scholarly appraisal of those matters, will have to look elsewhere. For a snappy read, replete with the author’s on-the-sleeve biases and occasional profanity, this book will do fine.

Throughout his career, Ben-Veniste had the good fortune to come under the wing of a spectacular array of patrons: besides Kean on the 9/11 panel, Robert M. Morgenthau and Whitney North Seymour Jr., United States Attorneys for the Southern District of New York; Archibald Cox Jr., special prosecutor in the Watergate investigation (until he was fired by Robert Bork on orders from the White House in the Saturday Night Massacre); and Paul Sarbanes of Maryland, senior Democrat on the committee commissioned by the Republican-controlled Senate to investigate Whitewater and related controversies surrounding Bill and Hillary Clinton. To each of these, and others, Ben-Veniste pays homage in full measure. (Tellingly absent from his list are Leon Jaworski, who succeeded Cox as Watergate special prosecutor after Cox was fired, and Hamilton, the vice chair of the 9/11 panel and a former Democratic congressman.)

At the same time, Ben-Veniste does not resist the opportunity to settle scores, some of them of longstanding duration. He has little more than contempt for Alphonse D’Amato, the New York senator who headed the Senate Whitewater Committee’s investigation, and for Judge David Sentelle, one of the three federal judges who, upon reenactment of the independent counsel statute, appointed Kenneth Starr to take over the Whitewater inquiry commenced under Robert Fiske. Ben-Veniste also snipes at Henry Kissinger, who initially accepted an appointment as the 9/11 Commission’s chair but quickly withdrew rather than divulge his client list.

Ben-Veniste goes after Philip Zelikow, chief of staff to the 9/11 Commission, with a special vengeance. The author charges that Zelikow, a protégé of Condoleezza Rice, strove improperly to shield her from the commission’s inquiries into her failings as President Bush’s national security advisor and otherwise to sidetrack the Commission’s work at key intervals. (Zelikow, for his part, regarded Ben-Veniste as a blatant partisan, determined to mess with the Republicans in advance of the 2004 election. The relationship between the two has been described as “poisonous.”[2])

Ben-Veniste’s recounting of the Watergate special prosecutor’s battles with the Nixon administration contains little that the reader will not previously have encountered in the literature. One exception is Ben-Veniste’s claim that he alone came up with the idea that the grand jury should designate Nixon as an “unindicted co-conspirator,” but without naming Nixon in the indictment, instead authorizing the special prosecutor to divulge the designation at an appropriate future interval, such as when the indicted defendants sought a bill of particulars. The idea, Ben-Veniste suggests, was to retrieve some measure of retribution against Nixon after Jaworski ruled out Nixon’s indictment, and to stiffen Jaworski’s wobbly spine when it came to going after a sitting president.

Naming bad guys “unindicted co- conspirators” is an accepted prosecutorial practice, codified in the U.S. Attorneys’ Manual. But the practice is disfavored because of the prejudice it works on the named individual who is deprived of a formal setting, such as a trial, in which to vindicate his reputation.[3] Such considerations do not detain Ben-Veniste while he claims credit for thinking up the idea of getting the grand jury’s carte blanche to label Nixon at some future time. The pertinent passage in Jaworski’s memoir is both cursory and inaccurate.[4] The history of the Watergate special prosecutor’s office, written by its chief spokesperson, neither contradicts nor supports Ben-Veniste’s claim, but it suggests another prosecutorial motivation (also adverted to by Ben-Veniste but plainly attributable to another member of the legal staff)—to ensure that the damaging tape recordings reluctantly surrendered by the White House would be admissible in evidence against the indicted conspirators.[5]

Similarly, Ben-Veniste’s narrative of the Abscam investigation—fronted by a wise guy who posed as an Arab sheik parceling out cash to members of Congress and Senators seemingly selected at random in exchange for their future loyalty on unspecified matters—is for the most part a replay of the righteous indignation exhibited by the ensnared defendants. Ben-Veniste represented one of the lesser middlemen caught up in the plotting. The proffered defense—that the client was not in league with the fake sheik but was trying to pull a scam on him—wasn’t pretty, but there it was. Ben-Veniste acknowledges the strategy didn’t fly.

Ben-Veniste’s description of his turn as chief counsel to the Democrats on the Senate Committee looking into the alleged ethical and financial derelictions of Bill and Hillary Clinton is replete with criticism of Kenneth Starr once he took over as independent counsel conducting a criminal investigation of the Clintons. Ben-Veniste sees Starr’s mushrooming investigation of any and every allegation of wrongdoing thrown in the Clintons’ way—from their Arkansas real estate deals with James McDougal to the belated discovery of Rose Law Firm billing records in the private precincts of the White House, and on to the perjury trap sprung on the president in the Monica Lewinsky affair—as a partisan job that could have been predicted on the basis of Starr’s prior associations with rabid Clinton-haters.

Ben-Veniste does not pause to consider whether Starr, a private practitioner and federal appellate judge lacking prosecutorial experience, might have been led astray as independent counsel by an overly zealous legal staff, one composed of young whippersnappers as full of themselves, in their way, as Ben-Veniste once was of himself. Ample proof of Ben-Veniste’s enthusiasm for the role of prosecutor early in his career may be found in his breathless narrative of the U.S. attorney’s pursuit of Nathan Voloshen and others who ran an influence-peddling operation out of the district office of John McCormack, speaker of the House.

Nor does Ben-Veniste take advantage of his unique situation—one of the few people in Washington to serve both as a member of the Watergate special prosecution and as a close observer of the Whitewater imbroglio—to compare the circumspection exercised by Cox and Jaworski, on the one hand, with the three-ring circus pursued by Starr, on the other.

The most revealing chapter in Ben-Veniste’s book relates to his service as a member of the 9/11 Commission. With the fervor of one still aggrieved, nearly five years after the event, Ben-Veniste recounts the Bush administration’s resistance to the commission’s formation, the miserly financing provided for the commission’s investigative work, the impossibly tight timetable prescribed for the rendition of the commission’s report, the administration’s riding out the clock by its endless withholding of documents and witnesses, and the long-running battle over disclosure of the Central Intelligence Agency’s (CIA) President’s Daily Brief, in particular the August 6, 2001, edition with its eye-catching headline “Bin Laden Determined to Strike in U.S.” To his credit, Ben-Veniste appreciated the significance of the CIA document well before he was allowed to read it, and he vigorously pursued its public disclosure.

The high point of Ben-Veniste’s book for this reviewer is the author’s narrative of the 9/11 commissioners’ lengthy interview of President Bush (accompanied, at the White House’s insistence, by Vice President Cheney). The former president emerges in Ben-Veniste’s account as a congenial fellow, gracious and candid, but either hopelessly ignorant of key facts or miserably served by his national security staff. According to Ben-Veniste, Bush was unaware that the Clinton administration had warned the Taliban that the United States would respond aggressively to proof that al Qaeda forces harbored in Afghanistan had conducted or sponsored attacks on U.S. assets—a warning the Bush administration could, and should, have acted upon once the CIA concluded early in 2001 that al Qaeda had been responsible for the attack on the U.S.S. Cole in October 2000 in Yemen. More alarming still, Bush denied knowledge of the warnings that Richard Clarke, on the national security staff, was sending up the chain of command, suggesting either that Bush had not paid sufficient attention to his briefings or that Rice, as national security adviser, had fallen down on the job of providing adequate information to the president.

Much of this material appears in the 9/11 Commission’s report. Not to be found there, but laid out in detail in Ben-Veniste’s book, are the author’s tasty morsels on the internal battles within the commission, especially when the Republican members (surprisingly joined at times by Hamilton) dragged their heels on key operating decisions. Much of this may be tale-bearing and perhaps even a violation of the spirit, if not the letter, of a self-imposed embargo on the release of individual commissioners’ privately stated positions, but it certainly is juicy.

Absent from Ben-Veniste’s book are any lessons drawn from the author’s experiences on how best to preserve the rule of law in a lawyer-ridden but at times lawless federal government. Ben-Veniste might have provided readers meaningful insights into the dangers posed by undue concentration of governmental power in the hands of the executive. He might have teased out threads common to the collapse of the Nixon administration in the Watergate scandal, on the one hand, and, on the other, the generally acknowledged failures of the Bush administration in its “global war on terror,” with its attendant incursions on individual liberty. But then, Ben-Veniste’s book would be different from the one he has written.

The review copy of The Emperor’s New Clothes bears the prominent warning “advance uncorrected proofs.” It is doubtful that correcting the proofs will alter the fundamental character of this book. With or without new clothing, Ben-Veniste’s work is a jaunty read, but far from the last word on the role of law and lawyers in American government.

Leonard H. Becker served as District of Columbia Bar Counsel from 1992 to 1999 and as general counsel to Mayor Anthony A. Williams from 2003 through 2006. He resides in Washington, D.C., and he may be reached at lenbecker@verizon.net.

Notes
[1] T. Kean & L. Hamilton, Without Precedent: The Inside Story of the 9/11 Commission, at 30 (2006).
[2] P. Shenon, The Commission: The Uncensored History of the 9/11 Investigation, at 288 (2008).
[3] U.S. Atty. Man. § 9-11.130, available at http://www.usdoj.gov/usao/eousa/foia_reading_room
/usam/title9/11mcrm.htm#9-11.130; I. Robbins, “Guilty Without Charge: Assessing the Due Process Rights of Unindicted Co-
conspirators,” 2004 Fed. Cts. L. Rev. 1 (2004); see also United States v. Briggs, 514 F.2d 794 (5th Cir. 1975).
[4] L. Jaworski, Confession and Avoidance, at 201 (1979) (referring in passing to Nixon’s “possible criminality, in view of his having been named by the grand jury as an unindicted co-conspirator”).
[5] J. Doyle, Not Above the Law, at 290 (1977) (“Nixon would not be named in the indictment, but it would show him as the central figure, offstage. Indeed, none of the unindicted co-conspirators would be named. The prosecutors decided to postpone the publication of that list as long as possible” (emphasis added).