The Radicalism of The Articles of Confederation

I was amused by a LA Times article by Joseph Ellis, a well known and respected historian. The article is Tea party wants to take America back — to the 18th century, from about a year ago (October 15, 2013). I’m not familiar with his politics, but going by this article he sounds like some variety of liberal or progressive, although in some other writings he can come off as the most dour of conservatives.

In the last part of the article, Ellis writes:

“But their ultimate destination, I believe, is the 1780s and our dysfunctional government under the Articles of Confederation. The states were sovereign in that post-revolutionary arrangement, and the federal government was virtually powerless. That is political paradise for the tea partiers, who might take comfort in the fact that their 18th century counterparts also refused to fund the national debt. Their core convictions are pre-Great Society, pre-New Deal, pre-Keynes, pre-Freud, pre-Darwin and pre-Constitution.”

I don’t think this is fair as a generalization. Most Tea Partiers aren’t really far right libertarians or any other variety of radical minarchists. Sure, some might like to push the country back, but the Tea Party is too diverse of a movement to base broad generalizations about.

Ellis thinks, “This is nostalgia on steroids, and an utter absurdity, defying more than 200 years of American history.” That probably is accurate for many attracted to far right rhetoric. They call them reactionaries for a good reason. Still, this seems too dismissive. I know some Tea Partiers and they aren’t merely nostalgic.

That said, I would agree that many on the political right “truly believe that government is “them,” not “us.”” — or are at least prone to being persuaded by the rhetoric that expresses this view. But as far that goes, I might agree with them on this issue, in a general sense, if not the specifics.

I would argue that we don’t have a genuinely and fully functioning democracy, not to say those on the right want democracy, assuming they even knew what it means. To broaden the issue, it is safe to say the US isn’t at present either a liberal democracy or a conservative republic, not making morally principled people on either side happy with the status quo. If we aren’t already a banana republic, a corporatist police state, and a military-industrial empire, we are coming damn close to it. I have little faith that the government represents “us” (the People, both left and right) to any great degree. With big money campaigning, lobbying, regulatory capture, and revolving doors, I must admit the government feels more like “them” than “us”.

Does that make me a Tea Partier? Or else a libertarian? If so, I’m fine with that. Just as long as I can be left-liberaltarian Tea Partier.

“The heartening news is that their like-minded predecessors over the last two centuries have lost every major battle, starting with the Constitutional Convention in Philadelphia in 1787 and ending with the congressional vote and the Supreme Court decision on Obamacare.”

Yes, the opponents of big, centralized, and oppressive government have been losing battles for a long time. I find this to be a sad conclusion to come to. I suspect it saddens Ellis as well.

I’m not inspired by the Cosnstitutional Convention that betrayed the very ideals and values the revolution was fought for. Does that make me a nostalgic reactionary? I don’t think so. It just makes me a concerned citizen who actually believes in what originally inspired the founding of this country. This country was founded on the Declaration of Independence and the Articles of Confederation, not the Constitution. The only purpose the Constitutional Convention was intended to serve was to improve, not replace, the Articles of Confederation.

“The historical pattern is perfectly clear. They are going to lose again because they are running against the main currents of history. But along the way they are making all the rest of us pay a heavy price for their delusional agenda. And they really don’t care.”

We are in a quagmire. Those defending the status quo are part of the problem. And too often even those who are critical of the problems aren’t able to see and think clearly, for all the fog of propaganda and spin, for all the historical ignorance and hagiography. Most Americans, left and right, are almost completely clueless about our country’s origins.

“Dysfunction this deep strikes me as a new low in American history. This is not what the founders had in mind.”

We are at a low point, but I’m not sure how new it is. As for the founders, I’m surprised to see a historian make that statement. The founders were constantly disagreeing and arguing about almost everything. Ellis is falling into the same ideological trap that many Tea Partiers fall into. He talks as if the founders were of one mind.

Ellis is practicing rhetoric here for the sake of making an ideological argument. But as a historian, he knows better (American Creation, Kindle Locations 1488-1498):

“If Washington was right, the burgeoning American empire required a fully empowered central government to manage its inevitable expansion across the continent. But such a national government contradicted the most cherished political values the American Revolution claimed to stand for. From Washington’s perspective the Confederation Congress appeared “little more than an empty sound” or “a Nugatory body” destined to “sink into contempt in the eyes of Europe.” From the perspective of the vast majority of American citizens, however, the inherent weakness of the Articles of Confederation was a shining example of republican principles, since a strong central government replicated the distant and despotic political power against which they had recently rebelled.3

“The gap between these two political camps was an unbridgeable chasm separated by a fundamental difference of opinion over the true meaning of the American Revolution. The outright nationalists, of whom Washington and most officers in the Continental Army were the most outspoken advocates, were a decided minority at war’s end. The staunch confederationists, on the other hand, were a clear majority who also enjoyed the incalculable ideological advantage of knowing that a powerful American nation-state violated the hallowed political principles embodied in “the spirit of ’76.””

Why be dismissive of any attempt by Americans to focus on the revolutionary era? Any interest in history should be encouraged, not criticized. Even if imperfect, the impulse behind the Tea Party is correct. That impulse is to go back to first principles, to remind ourselves why a revolution was fought in the first place.

* * * *

Political rhetoric aside, I wanted to engage more fully this issue of the Articles of Confederation. It has been on my mind this past week. This seems like a sore point for some Americans, those informed enough to even know what the Articles are and what led to their demise.

The Articles represent one of the first great failures of the revolutionary era. It wasn’t just a failure of a particular governing system, but a failure of the of the very principles of the “Spirit of ’76”. The United States was founded on two documents — firstly, The Declaration of Independence and, secondly, the Articles of Declaration. The Constitution (or rather the second constitution, following the Articles) came much later and was a very different kind of document, a product of fear and uncertainty, not of hope and idealism.

The Constitution was the Great Compromise, leaving no one entirely satisfied. Worse still, the second constitution was unconstitutional according to the first constitution. The Articles, unlike the Constitution, was agreed to unanimously, freely, and openly. Also, keep in mind the full title: The Articles of Confederation and Perpetual Union. It was deemed to be perpetual and to be a union, that is to say an everlasting confederation. It was created unanimously which means by the consent of the governed and so its revocation would also have to be unanimous, as described in the Articles themselves.

In another article, Ellis admits to the sorry state of affairs from which our constitutional order began:

“[O]nce you understand how the Constitution was created, all rosy myths evaporate. Fifty-five white males gathered in Philadelphia, imposed complete censorship over the deliberations, regarded slavery as the ghost at the banquet (it could not be openly debated), and then had the audacity to send the document to the states under the rhetorical mantle “We, the people.” If our modern values of inclusiveness, transparency and diversity were imposed on the founders, the Constitution would never have happened.”

For some reason, Ellis seems unwilling or unable to take these historical figures on their own terms, at least in this case.

The Anti-Federalists were fighting for these precise “modern values”. This the basis of the criticisms the Anti-Federalists had of the Constitutional Convention and of the Federalist-Nationalist ideology it represented, and hence their demanding a Bill of Rights.

It isn’t we Americans today who are anachronistically projecting our values onto the past. Our present values in basic form came from the revolutionary era. The American Revolution was an event of modernity and of the making of modernity. The values of “inclusiveness, transparency and diversity” formed much of the background and inspiration to the Articles of Confederation, both in terms of Dickinson’s Quaker-inspired original draft and in terms of the final draft edited down to better fit the Anti-Federalist vision.

A number of things make the Articles of Confederation distinct from the Constitution. In final form, the Articles described the condition of the states with terms such as free, independent, and sovereign. The federal government couldn’t tax the people directly. It was the state governments that represented the people and so taxed the people. The federal government taxed the states as representatives of the people.

This constitutional vision was turned on its head with the Constitutional Convention. The consent of the governed was changed from reality to mere symbol. In practice, all consent was gone. Consent of the governed wasn’t required nor was it allowed to be refused or retracted. Constitutional authority was declared by fiat, no unanimity involved. The aspiring ruling elite found consent of the governed to be too messy, as they learned from Shay’s Rebellion. The People had to be put in their place and a large central government had to be placed over them, by military force when necessary. The exact same arguments the British Empire used to keep the colonists in line were now being used by the US federal government.

This relates to why Ellis found it odd that so many Tea Partiers claim the Constitution as a protection of states rights. There is the Tenther movement that invokes the 10th amendment to attack what they consider government overreach, but obviously these people haven’t read it very closely:

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.”

That “or to the people” is a loophole large enough to drive a truck through. In the very making of the Constitution, a symbolic and empty “We the people” was assumed to justify the secretive process the ruling elites used to push through their agenda. The Constitution didn’t make it all that clear who precisely represented the people, but obviously the Constitution was based on the claim of representing the people.

The 10th amendment offers absolutely no protection whatsoever. To clarify this point, consider its equivalent in the Articles of Confederation:

“Article II. Each state retains its sovereignty, freedom, and independence, and every Power, Jurisdiction and right, which is not by this confederation expressly delegated to the United States, in Congress assembled.”

The Articles makes this point as clear as possible. No loopholes stated or implied.

There were definitely challenges to the Articles of Confederation. Those pushing for a new constitution saw the Confederation as a government failure. However, most Americans didn’t see any problem with it at all. It was an alliance formed during war time. It’s purpose was constrained by design, and so wasn’t a failure. In fact, it was a grand success by its own defined intent.

Once war was over, the alliance became less important. They didn’t need a central government to tell them how to govern themselves or to tell them they had rights. Because of colonialism, the states had long-established governments of their own and as a cultural inheritance they simply assumed they had rights.

The reason they sought independence from the British Empire was the same motivation behind Anti-Federalism, both cases being a response to those supporting large centralized government. For quite some time, the colonies were governed very loosely by the distant and initially weak British Empire. Colonists got used to solving their own problems with their relatively independent colonial governments. Each colony had its separate political traditions that had become integral to the local communities.

Colonists didn’t want to give up their traditions of self-government when the British Empire decided to get heavy-handed. Likewise, the colonists turned revolutionaries continued to demand self-governance.

* * * *

Two points should be made.

First, the American Revolution began before the so-called founders got involved and it continued long after the new ruling elite declared it over. The Long American Revolution began at least as early as the War of Regulation and continued at least as late as Shay’s Rebellion. It was always as much of a civil war as it was a revolution. The founders were forced to join the revolution or else become enemies of it.

This brings me to the second point. The Revolution always had a component of class war as well. In saying that, I don’t mean “class” in a simple sense. Economics is only one part of class. It isn’t simply about how much money one makes or much consumer goods one can buy. Rather, it is about an entire social order. Not all societies are class-based or equally class-based. Class only has effective significance to the degree it can be enforced by a specific kind of system of power and authority.

Class war is yet another issue that Ellis doesn’t understand. In a different article, he reviews Harvey J. Kaye’s Thomas Paine and the Promise of America. He makes the argument that,

“Ironically, the very feature of Paine’s mentality that Kaye most admires — its radicalism — is precisely the feature his most ardent critics at the time found most troubling. Kaye, the author and editor of several books, including ”Are We Good Citizens?,” tends to label Paine’s enemies elitists, wealthy aristocrats deaf to the authentically egalitarian ethos of his working-class politics. But this quasi-Marxist gloss obscures the fundamental ideological difference between Paine and most of the other founders. John Adams, for example, who was the son of a shoemaker, loathed Paine. Adams regarded the effort to implement the full revolutionary agenda immediately as a path leading over the cliffs of Dover.

“What separated Paine and Adams was not class so much as a classic disagreement over how to manage and secure a revolution. Adams believed in gradual change, in an evolutionary revolution. Paine believed that the revolutionary agenda, ”the spirit of ’76,” did not need to be managed, only declared. Adams regarded the Revolution as the Big Bang in the American political universe, which should radiate its radical energies and implications only slowly into the future. The Paine approach was, in fact, the more radical course followed by the French Revolution. It ended up, as Adams predicted, in barrels of blood and Napoleonic despotism. Paine himself nearly perished in the process he had helped to start, saved from the guillotine only when a prison guard neglected to remove him from his cell on the day of executions. Perhaps this is the reason one scholar named Paine the ”Peter Pan of the Age of Reason.””

That comes off as not only an ideologically slanted take on history but also not even historically accurate, entirely ignoring the larger context while also dismissing out of hand the other side of the story. That is quite the criticism to make against a man who makes his livelihood as a historian, both in writing and teaching. Let me break it down to explain my complaint.

There was good reason for Paine’s radicalism. He didn’t begin that way. The conditions of his early life prepared him for what he would become, but he wasn’t aspiring to be a rabblerouser. He worked as a civil servant for the British government at one point and sought reform within the system. Only after that failed, did his path slowly move him more fully beyond the social order he was born into. Along the way, he experienced death of loved ones, unemployment, homelessness, poverty, and all forms of oppression. In London, he saw the dregs of society and he saw the beginnings of working class organizing.

Someone like John Adams may have learned a trade just like Paine, but the life he knew was one of comfort and safety. To know a trade in the colonies meant something quite different. There was a smaller class divide. Compared to Britain, the colonial poor had more opportunity for upward mobility and the colonial aristocracy had less concentrated wealth. The social order was also less oppressive in the colonies because local government was weaker and one was always free to live off the land, something entirely impossible in England during that time of the land enclosure movement that led to food riots.

Class war was an ever-present reality in London where Paine spent many influential years. This gave Paine an insight and a moral righteousness lacking in most American colonists. It took Paine to explain to the colonists precisely what was wrong about the British Empire, precisely what they needed to fight against.

The problem with the oppressed in England was that oppression was all they knew. The problem with those who thought they were being oppressed in America is that they didn’t know what real oppression was like. Paine sought to bridge the two societies and that is why he was so radical.

Ellis portrays Paine as an anarchist, a naive anarchist at that. This is where Ellis’ conservative side shows itself. He presents a Federalist view of Paine, and so he shows his ideological bias.

The Federalist ruling elite started off as the colonial ruling elite. Their power and authority originally was backed by the British Empire. Having severed ties from the very justification for their social position and wealth, they had to create a new social order to re-establish the social order they were accustomed to. As such, they feared what they perceived as ‘anarchy’.

Even Ellis is able to offer a more nuanced view in response to this Federalist fearmongering. He discusses this in his book, American Creation (Kindle Locations 1558-1572):

“James Madison was one of the critics who did grasp this frustrating fact: “The question whether it is possible and worthwhile to preserve the Union of the States,” he warned in 1786, “must be speedily decided one way or other. Those who are indifferent to the preservation would do well to look forward to the consequences of its extinction.” The word that Madison, along with most critics of the current confederation, used to describe the consequences of inaction was “anarchy,” a term suggesting utter chaos, widespread violence, possible civil war between or among the states, and the likely intervention of several European powers eager to exploit the political disarray for their own imperial purposes.11

“While we can never know for sure, since history veered sharply in another direction at the end of the decade, the most likely outcome if the Articles of Confederation collapsed was not anarchy but dismemberment into two or three separate confederacies. Madison himself acknowledged that the gossip mills in both Europe and America were predicting that the imminent dissolution of the Articles would probably lead to “a partition of the states into two or more Confederacies.” An article in the Boston Independent Chronicle envisioned a regional union of five New England states, leaving “the rest of the continent to pursue their own imbecilic and disjointed plans.” The most probable scenario was a tripartite division of regional alliances that created an American version of Europe. New England would be like Scandinavia, the middle Atlantic states like western Europe, the states south of the Potomac like the Mediterranean countries. How this new American trinity would have fared over the ensuing decades is anybody’s guess. Whether it would have become a mere way station on the road to civil war and foreign invasion or a stable set of independent republics that coexisted peacefully and prosperously is impossible to know. But separate confederacies, not outright anarchy, appeared the most likely alternative if and when the Articles dissolved.12”

Paine’s ideals and activism (along with Anti-Federalism in general) seems rather reasonable when put in this context. What was all the fearmongering about? Considering the problems that have plagued the US government ever since, maybe it would have been good for the states to have maintained their sovereignty as have European countries. I personally wouldn’t mind living in a Midwestern version of Scandinavia.

Why is Paine’s influence in France supposedly to be blamed for the ensuing social chaos but his even greater influence in America is no big deal? There was no actual threat of anarchy, as Ellis admits. There is no honest argument to be made in claiming Paine somehow caused or even contributed to the Jacobin Reign of Terror, especially considering that Paine sat on the right in the French Assembly which was opposite of the Jacobins who famously sat on the left. Paine risked his life in opposing the Jacobins at every turn.

Paine believed in democracy, and in fact was one of the few people in the colonies who would openly use the word “democracy” in a positive sense, as most colonists had little knowledge and no experience of what democracy even meant beyond ancient histories such as about Socrates’ death. The failure of the French Revolution can’t be blamed on Paine any more than the failure of the American Revolution. He was but one voice in a cacophany of voices. Anyway, he made it clear that the onus of responsibility was not on the radicals who promoted democracy but on the reactionaries who resisted it. If the French revolutionaries had put forth a democratic constitution as the Americans did with the Articles of Confederation, Paine argued, then the catastrophe of Reign of Terror could have been avoided.

Ellis’ historical knowledge of the French Revolution, going by what he states in that quote, is about as unimpressive as is found among the typical American. I expect more insight and understanding from a practicing historian. Heck, I’m just a working class schmuck who dropped out of college and I apparently have a better grasp of the French Revolution, a set of events immensely more complex than Ellis appreciates (see: Failed Revolutions All Around, Revolutions: American and French along with Part 2, and The Haunted Moral Imagination).

Ellis shares the conservative attitude toward the French Revolution. He sounds downright Burkean.

* * * *

I came across a decent analysis of the views of Burke and Paine. The author (George H. Smith) discusses a number of issues, from Lockean contract theory to constitutionalism, but most relevantly he brings up the notion of an anarchistic state of nature, the bogeyman of every argument for large centralized government, be it monarchistic imperialism or federalist nationalism. It must be remembered that Burke didn’t just attack the French Revolution but did so in order to defend the French monarchy as a morally good and stable social order, although ultimately what Burke was defending by proxy was the English monarchy.

Here is what Smith has to say:

“If, as Paine argued, the people create a government through the mechanism of a constitution, then (in accordance with the Lockean version of a social compact) they must first agree unanimously to incorporate themselves into a political body that is thereafter governed by majority rule. Without this foundation of unanimous consent, “there can be no such thing as majority or minority; or power in any one person to bind another.” As Locke himself conceded, no one may be compelled to abandon the state of nature and obey the will of the majority in political decision making. Thus, according to Burke, no constitution ratified by a majority of the people may be deemed legitimate unless every individual under the jurisdiction of that constitution has previously agreed to become a member of that civil society called “the people.” Only this prior consent can morally obligate individuals to obey the will of the majority. Therefore, according to Burke, Paine’s notion of a constitution based on the consent of the governed “must be grounded on two assumptions; first, that of an incorporation produced by unanimity; and secondly, an unanimous agreement, that the act of a mere majority (say of one) shall pass with them and with others as the act of the whole.”

“Having taken Lockean social contract theorists at their word, Burke had no problem demonstrating that the Paineite defenders of the French Revolution failed to fulfill their own criteria for a legitimate constitution. A revolution, by dissolving the current government, places individuals in a state of nature—a condition in which they may refuse to incorporate themselves once again into a civil society and so have no moral obligation to obey the will of the majority. After a revolution, the process of incorporation that creates “the people” (in a legal sense) must begin anew, and a new civil society, in the Lockean scheme, requires the consent of every member who is to be governed by the majority. Thus a constitution, even if it is directly ratified by a majority of the people, cannot bind individuals who never agreed to become members of that civil society in the first place.

“Of course, Burke intended his critical analysis of majority rule to apply to more than the French Revolution and its defenders. Burke’s attack was meant to undermine the very foundation of Lockean social contract theory by showing that it is unable to rescue us from the anarchical state of nature. Like previous critics of political individualism, Burke maintained that those philosophers who begin with natural rights in a state of nature are forever doomed, theoretically speaking, to remain in that anarchistic condition, because the requirement of unanimous consent has never been met—whether in France, America, or any other country. By Lockean standards, therefore, no government in history was or is legitimate.”

What Smith failed to add was that Paine was influenced by Quaker constitutionalism. In a footnote to Observations on the Declaration of Rights, Paine writes that,

“There is a single idea, which, if it strikes rightly upon the mind, either in a legal or a religious sense, will prevent any man or any body of men, or any government, from going wrong on the subject of religion; which is, that before any human institutions of government were known in the world, there existed, if I may so express it, a compact between God and man, from the beginning of time: and that as the relation and condition which man in his individual person stands in towards his Maker cannot be changed by any human laws or human authority, that religious devotion, which is a part of this compact, cannot so much as be made a subject of human laws; and that all laws must conform themselves to this prior existing compact, and not assume to make the compact conform to the laws, which, besides being human, are subsequent thereto. The first act of man, when he looked around and saw himself a creature which he did not make, and a world furnished for his reception, must have been devotion; and devotion must ever continue sacred to every individual man, as it appears, right to him; and governments do mischief by interfering. “

Although a professed deist, Paine often made recourse to his early Christian education. This included the influences from his Quaker father. He was attracted to religious dissenters going all the way back to his time in England when he lived in a town that was a major center of religious dissent during the English Civil War. Once in America, he found alliances with radical Free Quakers.

With Quaker constitutionalism, the state of nature for humanity is not anarchy. The people isn’t a product of government for it precedes and is a prerequisite for government. Humans are social creatures. For Quakers, this was expressed as a covenant with God, the essence and inspiration of constitutionalism. They believed in a living constitution for they believed in a God alive in the hearts of men (and women). This is also why they didn’t believe in natural law, an unchanging set of divine legal rights set down for all of eternity. Instead, a people’s covenant with God changed as their relationship to God grew and developed.

As explained by Jane E. Calvert in Quaker Constitutionalism and the Political Thought of John Dickinson (Kindle Locations 10068-10077):

“The mechanism by which change could happen – whether in the case of Pennsylvania or America – was premised on the idea that the people were already constituted regardless of what paper documents did or did not exist, and that the power to discern the law lay with the people as a body. Samuel Beer explains, however, that Western political thought had historically rejected popular rule in favor of hierarchy. “Classical philosophy had taught the rule of the wise,” he says, “Christianity taught the rule of the holy.”104 The latter was also true of Quaker political thought. The crucial difference was that, in the Quaker view, all could be holy. Divine competence was in the people. They had what Beer calls a “constituent sovereignty”; that is, when a government dissolves and must be renewed, the people do not return to a state of nature, a state of anarchy.105 Rather, the power that they invested in the law-making body reverts to them and they can recreate – reconstitute – their political arrangements.”

This wasn’t a radical idea for Quakers. It was their tradition and so part of their established order. Quaker constitutionalism was at the heart of the political experiment in Pennsylvania. John Dickinson, a Quaker-raised Pennsylvanian, shared Paine’s Quaker-inspired constitutionalism even as he didn’t share Paine’s radicalism. Quite the opposite, Dickinson sought to defend the social order that had protected religious minorities like the Quakers. This was his motivation for using Quaker values in writing the original draft of the Articles of Confederation.

Quakers were not supporters of Lockean social contract theory. Just as they were not supporters of Lockean natural rights. Burke’s criticisms do not apply to Quakers or those who base their views on Quaker political values and traditions. Burke acted as if Quaker constitutionalism didn’t exist, as if there were no other options besides civil law and anarchy. Ellis shows a similar disregard toward or ignorance about the Quaker position.

* * * *

I’m not just arguing about history. This is relevant for the public debate about government that has been ongoing for centuries now.

Quakers weren’t and still aren’t individualists. They take seriously the idea of “the people” as a community, not just an aggregate of individuals. This Quaker view has come to have major impact on progressivism. Quaker constitutionalism is probably also behind the liberal view of a living constitution, a covenant of a people that is greater than mere words and legalese.

To seek out first principles is to seek out the living “Breath of God” behind the words. Worshipping the words of long dead men isn’t something the Anti-Federalists had hoped for. Jefferson thought there should be a new constitution every generation, which is to say about every 20 years. The Anti-Federalists believed that government was for the living since only the living could consent to being governed. Making the US Constitution into a dogma written in stone like a modern Ten Commandments is to entirely miss the point.

The Spirit of ’76 is a living spirit. Where it lives is in the heart of those who still believe in the inspiration of the American Revolution. Constitutions come and go. Compromises are made and governing systems eventually fail. But the quest for a more perfect union is a neverending quest.

We should respect the Articles of Confederation for the reason that it was the first expression of a new vision of society. It was a radical vision then and it remains a radical vision to this day. The American Revolution never ended for the original American experiment has yet to fully begin.

* * * *

After sleeping on it, one more thought came to mind.

The Lockean influence on the American Revolution isn’t absolute. The one thing that has become clear to me is that the colonies represented diverse influences right from the start (see David Hackett Fischer and Colin Woodard for detailed analysis). This doesn’t just apply to radicals like Paine or forgotten figures like Dickinson, but also founders like Jefferson.

A number of scholars have questioned Thomas Jefferson’s relation to Lockean natural rights. It is far from certain that Jefferson, in writing the Declaration of Independence, was referring to Locke when he wrote about “Life, Liberty and the pursuit of Happiness”. Locke’s own formula included “life, liberty and estate”. There is a vast difference depending upon what the final emphasis is placed, estate or pursuit of Happiness. That is “Happiness” with a capital “H”, in case a mere lowercase wasn’t emphasis enough.

In previously discussing this, I concluded that,

As for Jefferson’s personal view, a fundamental right related to happiness had to do with consent. A government earned consent by ensuring the happiness of citizens. When that happiness abated, so did the requirement of consent. This puts “pursuit of Happiness” in a whole other context.

The Constitution certainly didn’t require the people’s consent, much less happiness. As far as that goes, the Constitution makes only one mention of property and that in referring to public property. Commerce gets discussed twice, but only in stating its being regulated. This is hardly a document of laissez-faire capitalism. This is made clear by the early use of tariffs made by the federal government, “the main source of all Federal revenue from 1790 to 1914″. Tariffs made markets heavily regulated, some might say manipulated even.

The Articles of Confederation did speak of property while even going so far as putting it into context of trade and commerce. However, the preceding Declaration of Independence didn’t mention property (or estate) at all and yet mentioned happiness twice. The second mention of Happiness placed it in relation to Safety. This is something Quakers of the time would have approved of as they knew through direct experience the relation between freedom for minorities and protection of minorities. As minorities, many Quakers resisted severing their ties with the protection offered by the Crown and Quakers like Dickinson hoped to quickly reestablish protections with a government powerful enough to enforce them.

There were many contested understandings for all these terms. Liberty, in particular, always was a vague term with its origins in Roman slave society. As I’ve mentioned before, Jefferson’s Virginia was shaped by the Cavalier heritage of Roman values. The Declaration and the Constitution refer to liberty and freedom, often seemingly interchangeably, sometimes using freedom as the opposite of enslaved which is the Roman conception of liberty. Quite uniquely, the Articles use freedom as a touchstone while never mentioning liberty even once. That demonstrates a major difference, the Declaration having been written by a slave-owning, liberty-loving aristocrat from Cavalier Virginia and the Articles having been written by a Quaker-raised Pennsylvanian who freed the slaves he inherited.

Governing charters are written with words. Words like freedom and liberty aren’t mere abstractions. They are grounded in entire worldviews, cultures, and social orders. Without understanding this deeper context, we lack the key to unlock the meaning of old debates that underpin our entire society. We are a conflicted people for we debate without understanding the terms of the debate. Rhetoric, too often empty, takes the place of meaning.

The ideal of federalism was borne out of the original Confederation. The so-called Federalists who turned against the Confederation weren’t actually promoting federalism, but instead some form of nation-state or even proto-imperialism. The relationship the US government has to the states is not much different from the relationship the British Empire had to its colonies. Every government claims to represent its citizens, but representation in a practical sense is a very different thing. Just ask those early Americans when, following the Revolution, still only a few percentage were given the right to vote.

Many of the Anti-Federalists argued that they were the true Federalists. The evidence is strongly in their favor. If we wish to continue to believe our government’s propaganda about Federalism, maybe we should take it seriously enough to live up to those claims and demand our government to apply. Maybe we should once again act as if it mattered whether or not we consent to be governed.

The debate is far from over. Let’s make sure it is an informed debate.