St. George Tucker On Secession

“And since the seceding states, by establishing a new constitution and form of federal government among themselves, without the consent of the rest, have shown that they consider the right to do so whenever the occasion may, in their opinion require it, we may infer that the right has not been diminished by any new compact which they may since have entered into, since none could be more solemn or explicit than the first, nor more binding upon the contracting partie.”
~St. George Tucker *

Secession from the Articles of Confederation, the first Constitution, set a legal and moral precedent. The Constitutional Convention was initiated with the limited mandate of improving, not replacing, the first Constitution. Not all the states were present at the Constitutional Convention and the the second Constitution was initially ratified and enacted prior to the agreement and consent of all states, which was directly and explicitly unconstitutional according to the first Constitution (The Vague and Ambiguous US Constitution). The first Constitution originated in unanimous agreement and required unanimous agreement to make any changes to it, but the second Constitution was an act of fiat and so a non-violent coup.

Or was it non-violent? The American Revolution continued on with numerous rebellions by the veterans of the Revolutionary War. These rebellions were violently put down by the federal government (e.g., Shays’ Rebellion). This was the very thing that the Anti-Federalists feared and warned about. They sensed the imperialist and authoritarian aspirations of some of the leading pseudo-Federalists. Once a large centralized government controlled both taxation and military, the ruling elite would have total control and a free society would be doomed (Dickinson’s Purse and Sword). It turns out the Anti-Federalists were right

Since the second Constitution was an entirely new constitutional order enforced through coercion, there is no reason a third (or fourth or fifth) Constitution could be blocked on constitutional grounds. A third Constitution would not require legitimacy based on the second Constitution any more than the second Constitution required legitimacy based on the first Constitution. Unless there is consensus, as was the case with the first Constitution, any further Constitutions would be acts of secession, as was the case with the second Constitution. The fact that we, nonetheless, accept the second Constitution as legitimate explicitly gives legitimacy to secession itself.

Neither of the constitutional orders were formed without violence. And as the second Constitution was a secession from the Articles of Confederation, the first Constitution was likewise a secession from the British Empire. There is a strong precedence of secession in American history. The Southern states weren’t wrong in affirming this right of secession. The initiation of the Civil War wasn’t done to stop secession. The federal government would not have had public support for attacking the Confederacy, if Southern rebels had not first attacked the federal government in shooting cannons at Fort Sumter. Without that initial act of violence, the South probably would have successfully seceded and so would have set a new precedent for peaceful secession.

Secession had long been part of American thought. Leaders in the Northern states had earlier discussed secession as well. That was one of the original rights of the Articles of Confederation, that the union was an agreement freely joined according to consensus of all states. The states were considered independent. That is why they were called states, in the sense of being nation-states in a union. Democracy was assumed to operate within the separate (nation-)states, as the federal government was intentionally constrained. The federal government served the states, as the states served their citizenry, not the other way around.

Ultimate authority exist within the public mandate of each local citizenry. A state seceding from the United States, as such, is no different than secession of the UK from the European Union. This is what it means to be part of a free society where citizens are free to choose their own government.

* * *

* Quoted in a comment at the Civil War Talk forum.

St. George Tucker was an American Revolution veteran, slave emancipation advocate, law professor, respected legal scholar, and federal judge. He wrote View of the Constitution, the first detailed commentary on the U.S. Constitution after its ratification, and Commentaries that became the most important text on early American law.

He was an Anti-Federalist (i.e., true Federalist) and a strong believer in Natural Rights. His defense of the Second Amendment was not in favor of individual rights but states rights, that is to say he saw the purpose of the public owning a gun not as a justification for vigilantism but as a way for citizens to protect their freedom against authoritarianism (Saul Cornell, St. George Tucker and the Second Amendment: original understandings and modern misunderstandings).

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.

 

Anti-Partisan Original Intent

I was reading the introduction to The Invention of Party Politics by Gerald Leonard. The beginning comments caught my attention (Kindle Locations 62-65):

“This is a book about political parties and the American Constitution between the founding of the United States and the Second Party System of the 1840s and 1850s. In those years, and especially between 1820 and 1840, the idea and fact of party organization gained a preeminent place in the American constitutional order, even though the Constitution itself had been designed as a “Constitution against parties.”*”

(* From Idea of a Party System by Richard Hofstadter)

I knew many of the Founders saw party politics as a danger. This went along with the perceived threats of political factionalism and regional/state sectionalism. Unity was the watchword of those early Americans. They were seeking to create a United States, a radical vision. Not a nation-state and not just what the Articles of Confederation proposed. Plural states, but united, tied together with common cause and purpose. A Union.

As George Washington famously explained in his farewell address,

“In contemplating the causes, which may disturb our Union, it occurs as matter of serious concern, that any ground should have been furnished for characterizing parties by Geographical discriminations, Northern and Southern, Atlantic and Western; whence designing men may endeavour to excite a belief, that there is a real difference of local interests and views. One of the expedients of party to acquire influence, within particular districts, is to misrepresent the opinions and aims of other districts. You cannot shield yourselves too much against the jealousies and heart-burnings, which spring from these misrepresentations; they tend to render alien to each other those, who ought to be bound together by fraternal affection.”

His warning was that parties would lead to ruling elites who served their own interests rather than the country.

“All obstructions to the execution of the Laws, all combinations and associations, under whatever plausible character, with the real design to direct, control, counteract, or awe the regular deliberation and action of the constituted authorities, are destructive of this fundamental principle, and of fatal tendency. They serve to organize faction, to give it an artificial and extraordinary force; to put, in the place of the delegated will of the nation, the will of a party, often a small but artful and enterprising minority of the community; and, according to the alternate triumphs of different parties, to make the public administration the mirror of the ill-concerted and incongruous projects of faction, rather than the organ of consistent and wholesome plans digested by common counsels, and modified by mutual interests.”

It wasn’t just a complaint about the practical running of government. Rather, it was a conflict of visions. The vision of Union was in direct contradiction to the vision of partisanship. For parties to form meant the revolutionary spirit to have been defeated, the entire reason and justification for the founding of the United States.

“I have already intimated to you the danger of parties in the state, with particular reference to the founding of them on geographical discriminations. Let me now take a more comprehensive view, and warn you in the most solemn manner against the baneful effects of the spirit of party, generally.”

Washington goes into more detail, but you get the basic idea. The guy saw political parties as one of the greatest threats to a free country and to all who value liberty. Those are strong words for the first president who wasn’t known for stating anything strongly. He decided to make almost his entire farewell address about this single warning. We should take this as seriously as we take Dwight Eisenhower’s warning of the Military-Industrial Complex.

To return to The Invention of Party Politics, the author continues with some thoughts on the Constitution:

“In all the massive literature on American political history in that period, however, there was little indication of what I have since come to understand: that the early history of party is best understood within the history of the Constitution, just as the history of the Constitution is best understood within the history of party development.”

It is good to keep in mind that the Constitution was written to replace the Articles of Confederation. The early Confederation was too weak and so the vision of Union took form, but the idea of a Union was a guiding vision from before the Constitutional Convention. There was disagreement about the exact relationship between the states and yet there was much agreement that the states needed a shared system of politics, of laws, of economics, and more importantly of values.

However, that vision of a fully united Union didn’t last. Understanding that change is what this book is about. Also, it is about understanding why the founders fought so hard for a new vision of a non-partisan society.

“In the nineteenth century, the mass political party dominated American politics and, in fact, came to be the defining institution of modern “democracy,” a status it still enjoys (perhaps in tandem with the market economy). Yet thousands of years of prior human history had yielded practically no efforts to justify party organization or institutionalized opposition. Virtually every political thinker before the nineteenth century condemned “formed opposition” as destructive of the public good and fatal to public peace. The freedom of individuals to express dissent might sometimes be celebrated, but the organization of a political club in continuing opposition to the policies of the government— perhaps even conceiving of itself as a potential replacement for those currently in power—smacked more of conspiracy and treason than of healthy political competition . In the early nineteenth century, however, all that changed. Americans embraced mass party organization, and politics and governance were altered forever. Eventually, this embrace of party became a commitment to a “party system”— an enduring competition between democratic parties within a basic constitutional consensus, expecting to exchange power and office in indefinitely long cycles 2 —as the sine qua non of democracy in America and much of the world.” (Kindle Locations 66-78).

The American Civil War is a clear example of what Washington had warned about. We shouldn’t get too comfortable about our party system. And we shouldn’t be so naive as to think another civil war will never happen.

I want to end on a different note, though. Those on the political right often speak of original intent, specifically in terms of the Constitution. I just want to point out that any person in a political party (including the Republican Party and the Libertarian Party) who makes any argument about originalism, any such person is being blatantly hypocritical.

Of course, hypocrisy is part of the US political tradition going back to the Founders. Still, I doubt conservatives and right-wingers are basing their originalist defense on the standard of hypocrisy. Or maybe they are.

I find myself going back to that early period of American and Western history. The groundwork of principles and values were laid for modern democracy. Yet we don’t take those principles and values as seriously as we should. They are hard to live by and live up to, as the Founders quickly discovered.

I feel a desire to make my own defense of original intent about the entire early modern revolutionary era and the entire Enlightenment Age. I wish to defend the radical visions that transformed the Western world. Many of those early radicals didn’t fall into hypocrisy. Those are the people upon which I wish to base my own originalism.

Maybe it is time for us to revisit those radical ideas and visions. Maybe we took the wrong path somewhere along the way. Let us retrace our steps and rediscover the forks in the road that could have taken our society in other directions. Maybe party politics is a dead end, after all.

Paine, Dickinson and What Was Lost

I’m a divided person about American history, about how American society began and where it has gone.

This inner conflict is symbolized by my two favorite founding fathers: Thomas Paine and John Dickinson.They both embody the principled politics of the Quaker tradition along with the worldview of the Middle Colonies, especially Pennsylvania. However, they both had very different lives and found themselves on the opposite end of many issues.

The two represent different responses to their times. What does one do when demands for reform fail? What does one do when revolution is the only recourse for justice or else when revolution simply has become unavoidable? Despite their different paths, they shared a visionary understanding about the prospect of a “United States”. They both believed something greater was possible, in terms of representative government and political justice.

I’m reluctant to conclude they were wrong about their idealized America, not just yet.

Like Paine, I believe justice is worth fighting for, even to the extent of starting a revolution if need be. But like Dickinson, I think there is a very high bar of justification for any revolution.

My criticism of the American Revolution is that it was proven a failure by its own standards. Most Americans weren’t any more free after the revolution than before. In fact, many of those who remained loyal to Britain such as slaves gained way more freedom by fighting against the revolution. Only the upper classes in the colonies clearly gained benefit and advantage. Worse still, taxes on Americans were even higher and no more representative. Very few people were eligible to vote or hold office. The monarchy was replaced with a plutocracy. Meanwhile, the lower classes who fought the revolution found themselves in debt while holding worthless money paid to them by the government and because of this many lost their property to the same wealthy interests who had co-opted the new government.

One major justification for the American Revolution was the moral obligation to create a new kind of government, a unique political experiment toward freedom and liberty. That was what was attempted with the Articles of Confederation, but that idea was scrapped. The United States quickly devolved into just another nation-state and colonial empire. Many of the warnings of the Anti-Federalists turned out to be true which was becoming evident in the earliest years of the new government.

By the very close vote of 89 to 79, Virginia finally did ratify the Constitution. But Madison had not been deaf to the disquiet and mistrust expressed on the convention floor; he had grasped the delegates’ panic and their sense of loss at joining the Union. The next year he would respond to some of their concerns about individual liberties and federal powers by steering a bill of rights through Congress that amended the Constitution. The Tenth Amendment addressed, though in the mildest of terms, the anxiety of Virginians and other Americans about federal encroachments on the sovereignty of states: “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.”

But a few years later, Madison would make an about-face, distressed when he realized that Alexander Hamilton, spouting plans for a national bank and for vigorous industrial development, sought to turn the nation into precisely the kind of consolidated powerhouse that the antifederalists had feared. Madison even began to echo Patrick Henry as he wrote a series of articles in the National Gazette in 1792 warning against “a consolidation of the states into one government.”
~ Susan Dunn, Dominion of Memories (Kindle Locations 1688-1695)

The vision of America that inspired the entire revolution has existed in permanent limbo. We Americans aren’t sure we actually liked the revolution and what it stood for. We pay lip service to it, but the point of the whole thing still strikes us as radical to the extreme. We are no better off (in some ways worse) than the Canadians that remained loyal to the Crown and at some level I think all Americans realize this. We know there were lost opportunities when this country was founded and it isn’t just that the revolutionary ideals were betrayed back then but that every generation has betrayed them ever since. If we could do it, many Americans would turn those lost opportunities into entirely forgotten opportunities, erased from the national consciousness and obliterated from the history books. It stings our national pride that we are a country of failed idealism; worse still, other than a few malcontents it has been a willingly chosen (and often an oppressively enforced) failed idealism.

That is what our country was founded on, not idealism but failed idealism. This idealism didn’t fail with Obama or Bush, LBJ or Roosevelt, not even with Lincoln. No this idealism died in the crib. Some of the founding fathers even realized it and those that reached old age lamented the loss, although even they often couldn’t fully put their finger on what was lost. It wasn’t a manifest reality that was lost, but an ephemeral potential. For a brief moment, this nation dreamed large and envisioned moral greatness. And early Americans put their lives on the line for it, many of them having lost their lives for that opportunity to change the world.

I would clarify my message so as to not be dismissed by those who might perceive me as being dismissive.

It’s not that nothing worthwhile has been accomplished in this country. It’s just everything worthwhile that has been accomplished has been done so through endless fighting against the established social order. Most of the freedoms and rights we do have weren’t gained by fighting against the British government and political elite but by fighting against the American government and political elite. Centuries of fighting and relatively so little to show for it or at least not much more to show than any other major developed Western nation.

Maybe this should have been predictable from the first battle of the American Revolution that began with the War of Regulation when the lower classes fought for the right of self-governance against the local colonial political elite. Also, that conflict between the lower classes in debt to the capitalist class foreshadowed the rebellions that followed the official ending of the revolution. That 18th century class war then continued on into the 19th century with demands for democratic reforms, beginning with the Jacksonian Era and ending with the Populist Era. The entire history of this country has been a near endless class war.

We had a revolution. Maybe its time to finally complete the revolution, to finally live up to our own ideals. We can go on fighting the same old class war until our nation itself ends or we could work together toward building a democratic society that benefits all classes (all races, all ethnicities, all religions, all Americans).

I won’t claim to to know what was possible for the founding generation. Could the Articles of Confederation effectively been improved upon? Is there a reason a confederation of states with strong local self-governance has to fail? Must we cynically conclude that centralization of power and wealth is always inevitable? Was violent and destructive civil war the only way slavery could have ended here? These questions and many more.

No one knows for certain what are the answers to these questions. I’d simply point out that early on in our country Americans had the opportunity to find out answers to these questions. Something entirely new could have been attempted. This country could have been a moral exemplar for all the world. That would have been an interesting experiment, but maybe the experiment didn’t entirely fail. Every generation has the chance to try anew the experiment of democracy. I’m of the opinion that we should at least try something before discarding it.

Many countries have tried the experiments of large nation-states and expansionary empires, of plutocracy and other forms of oligarchy. We already know where that leads. Why not start again where the revolutionaries left off? If after putting it to the test everything the American revolutionaries fought for proves wrong, at least we would finally know that the failure was in the ideals rather than just in our lack of collective will. Then we could try another experiment.

In reading about the Articles of Confederation and the U.S. Constitution, I don’t feel so certain about where I fall on the Federal vs Anti-Federalist spectrum. Over time, I’ve slowly moved in the Anti-Federalist direction. I’m not Anti-Federalist on principle, but living during a time like this it is easier to see the failings of the Federalism that have since followed from that earlier era.

It is interesting that Dickinson fell more into the Federalist camp and Paine into the Anti-Federalist camp.

All in all, I side more with Dickinson in his resistance to revolution because he seems to have foreseen many of the problems that ensued. Dickinson, like Burke, wisely emphasized slow reform. Paine also was for reform, but once he got the idea of revolution in his head he ran with it like no other.

Once the revolution was begun and even moreso once independence was gained, I think Paine’s insights gained the upperhand on Dickinson’s pre-revolutionary wisdom. Paine probably had the best understanding about the promise of America. He also had the most uncompromising vision of morality and justice. Paine makes most of the founding fathers look pathetic in comparison. That is because Paine grasped that moment of history and went far beyond self-interest in fighting for what was right.

So, Dickinson was the better advocate of reform and Paine the better advocate of revolution. But I’ll give them both credit for having the ability to seek moderation among extremes. Dickinson was a true statesman when he sought balance with the Articles of Confederation, our country’s first constitution. As for Paine, his attempt at being a moderate in immoderate revolutionary France was beyond heroic.

A point I’ve made before is that America’s failure is twofold. Early Americans didn’t heed Dickinson’s warnings about revolution. Nor did the elite heed Paine’s call for justice. So, we didn’t get the best possible benefits of reform or revolution, but instead we became stuck somewhere in between. The losers on both ends outnumbered the winners.

As a side note, I’ve been struck by how much the long revolutionary era in America, from War of Regulation to Shay’s Rebellion, had to do with monetary issues.

Like the Bonus Army of WWI veterans protesting in demand of pay, the rebellions in the 1780s and 1790s were led by revolutionary war veterans. Like no other demographic, veterans embody the legitimacy of a government or lack thereof. They represent the genuine civic-minded citizen who is willing to put his life on the line in defense of his country. When a government treats its veterans unjustly, it says a lot more about the government than about the veterans protesting that injustice.

Debt was a major concern during the revolutionary era. The rural farmers of North Carolina experienced drought which caused them to fall into debt which the political and economic elites sought to take advantage of by seizing their property. This is what led to War of Regulation. The loss of value of money is what caused many revolutionary veterans to go into debt and also lose their land. This resulted later on in laws that made it illegal to take someone’s property, no matter how far in debt they fell (in the South, this was called homestead exemption).

Meanwhile, some of the planter elites were in debt as well which motivated many of them to support revolution. Many other elites ended up in debt following the revolution, some even ended up in debtor’s prison, a topic discussed by David Lefer in The Founding Conservatives. There was a whole lot of war profiteering and land speculation, some of it paid off which in case of war profiteering led to some trials but the land speculation led to a bubble that burst. Buyers became wise to all the land speculators trying to sell worthless or overpriced land.

After the revolution, the entire U.S. government was in debt. Many issues of politics revolved around this interlinking of public and private debt, especially the issue of Federalism vs Anti-Federalism. Who controlled government directly related to who controlled monetary policies and debt enforcement. No matter which policy was implemented, there would be both losers and winners. It wasn’t just about debt but also what debt means; also, how and when it is paid back and who is paid back with what. Money is about social value and hence what in society backs that money, but revolution turned the social order on its head.

Monetary policy was a mess at the beginning of the country. It eventually led to a massive crash. This was one of the issues favored the federalist position since it was the lack of a government-backed money supply that caused so much fraud and made trade difficult. Banks printed their own money and were supposed to back it themselves, but it didn’t always work out so well.

These issues were still being argued about all the way to the Populist and Progressive Eras. Class war was never just about abstract notions of class identity. It was about real world problems of markets and civil rights, the latter being obvious with examples like debt peonage. Monetary issues always goes hand in hand with revolution and populism because money is a symbol of power, how that power is shared or denied, how the social order is enforced or reformed.

This is what connects us now back to those during the Revolutionary Era. After the American Revolution, economic inequality had grown. And once again, we are at a time when economic inequality has grown. Large wealth disparities create unstable social orders. Stability was only maintained in early America because the poor had access to cheap land and so the government essentially used that to buy off the populists from making even greater demands of justice and equality, but now the government has fewer ways to buy off the lower classes that are growing discontented. The bread and circus of welfare and consumerism can only release so much of this building pressure.

Interestingly, this old economic debate between Federalism and Anti-Federalism isn’t just rooted in elitism vs populism but also rooted in capitalism vs agrarianism (all of which fed into the Civil War). It wasn’t accidental that the revolution was begun by and so many of the later rebellions were caused by farmers. And it wasn’t accidental that so few of the framers of the constitution were farmers. This is the form class war took at that time. The death of the family farm has transformed this particular aspect, but the social division is far deeper than particular types of work. Issues of civil rights and independence are just as important for working class people today as they were for farmers from centuries past.

It says a lot about our society right now that the Anti-Federalists are increasingly seen in a positive light. They were the underdogs of their time. Many people today want to root for them for we identify with them. With hindsight, it is easy to see the Anti-Federalists as speaking more to our modern democratic inclinations. Anti-Federalism held a strain of genuine democracy that was stamped out by elites and one has to wonder what might have happened if it had been allowed to take its natural course of development.

Anti-Federalists weren’t just a dissenting voice. They represented the very democratic value of dissent, of public discourse, of listening to all sides. The Federalists, instead, represented stifling dissent by oppressive law (Alien Sedition Acts) and corporate power (the majority of printing/publishing/newspaper businesses were owned by Federalists, the big biz MSM of their day). We now live in a time when voices of dissent are growing, not just a tolerance for dissent but the ability for dissenters to make themselves heard. The equivalent of Federalists today have even more massive media control in some ways, but they also have less ability to stifle dissenting voices that can spread uncontrolled across social media.

The last section below includes several passages I came across recently. In perusing various books I own, I was trying to grasp the meaning of the Articles of Confederation and Anti-Federalism. It is, of course, complex. But more importantly, it is a lot more interesting than the bullshit you were taught in school, than what you saw on the History Channel, and than you read in most mainstream history books. The following gives you a sense of some of the voices that were largely silenced and overlooked. Enjoy!

The more characteristic Federalist position was to deny that the choice lay between confederation and consolidation and to contend that in fact the Constitution provided a new form, partly national and partly federal. This was Publius’ argument in The Federalist, no. 39. It was Madison’s argument in the Virginia ratifying convention. And it was the usual argument of James Wilson himself, who emphasized the strictly limited powers of the general government and the essential part to be played in it by the states.30 The Anti-Federalists objected that all such arguments foundered on the impossibility of dual sovereignty. “It is a solecism in politics for two coordinate sovereignties to exist together….” A mixture may exist for a time, but it will inevitably tend in one direction or the other, subjecting the country in the meantime to “all the horrors of a divided sovereignty.”31 Luther Martin agreed with Madison that the new Constitution presented a novel mixture of federal and national elements; but he found it “just so much federal in appearance as to give its advocates in some measure, an opportunity of passing it as such upon the unsuspecting multitude, before they had time and opportunity to examine it, and yet so predominantly national as to put it in the power of its movers, whenever the machine shall be set agoing, to strike out every part that has the appearance of being federal, and to render it wholly and entirely a national government.”32

The first words of the preamble sufficiently declare the anti-federal (in the strict sense) character of the Constitution, Patrick Henry thought; and his objection thundered over the Virginia convention sitting in Richmond:

[W]hat right had they to say, We, the People? My political curiosity, exclusive of my anxious solicitude for the public welfare, leads me to ask, who authorised them to speak the language of, We, the People, instead of We, the State ? States are the characteristics, and the soul of a confederation. If the States be not the agents of this compact, it must be one great consolidated National Government of the people of all the States.33

The clearest minds among the Federalists agreed that states are the soul of a confederacy. That is what is wrong with confederacies: “The fundamental principle of the old Confederation is defective; we must totally eradicate and discard this principle before we can expect an efficient government.”*34

Here lies the main significance of the mode of ratification in the proposed Constitution. The new procedure—ratification by special state conventions rather than by Congress and the state legislatures and provision that the Constitution shall be established on ratification of nine states (as between them), rather than all thirteen states as required under the Articles of Confederation—was not merely illegal; it struck at the heart of the old Confederation. It denied, as Federalists like Hamilton openly admitted, the very basis of legality under the Articles of Confederation. The requirement in the Articles of Confederation for unanimous consent of the states to constitutional changes rested on the assumption that the states are the basic political entities, permanently associated indeed, but associated entirely at the will and in the interest of each of the several states.*35 Even if it were granted that government under the Articles had collapsed (which most Anti-Federalists did not grant), there was no justification for abandoning the principles of state equality and unanimous consent to fundamental constitutional change.

Storing, Herbert J. (2008-12-02). What the Anti-Federalists Were For: The Political Thought of the Opponents of the Constitution (Kindle Locations 269-299). University of Chicago Press. Kindle Edition.

One of the striking and, to many readers, surprising aspects of the debate over the Constitution is the conservative posture of the opposition. The Anti-Federalists did not deny the need for some change, but they were on the whole defenders of the status quo. They deplored departures of the Constitution from “the good old way” or “the antient and established usage of the commonwealth.” They shook their heads at “the phrenzy of innovation” sweeping the country: “The framing entirely new systems, is a work that requires vast attention; and it is much easier to guard an old one.” They warned that constant change would leave Americans “always young in government.”1 Some expressed the primitive conservative view that whatever is old is good. Others revealed profound (but seldom explored) misgivings about the modern political principles on which the Constitution was so wholeheartedly based.*2 Ordinarily, however, their conservatism was neither so shallow nor so deep. In the main, they saw in the Framers’ easy thrusting aside of old forms and principles threats to four cherished values: to law, to political stability, to the principles of the Declaration of Independence, and to federalism.

The Anti-Federalists often objected even to entering into debate on the Constitution because of legal irregularities in the proceedings of the Philadelphia Convention. They argued that that Convention had been authorized “for the sole and express purpose of revising the Articles of Confederation,” and had no right to propose any radical change in the government of the Union.3 While not invincible, this argument is very powerful; but it became less pertinent every day simply because the Constitution was in fact before the people and its merits under discussion. The threshold had been crossed, and the Anti-Federalists had little choice but to follow the Federalists over it. But there were other legal objections. The Convention proposed that Congress and the state legislatures should be bypassed in favor of special ratifying conventions and that the Constitution should come into effect when nine states ratified. For neither of these proposals was there any legal basis. They ran counter to Congress’s commission to the Convention, and they violated the mode of amendment established in the Articles of Confederation.

The proposals of the Framers were self-defeating in their casual disregard of the forms of legality: “the same reasons which you now urge for destroying our present federal government, may be urged for abolishing the system which you now propose to adopt; and as the method prescribed by the articles of confederation is now totally disregarded by you, as little regard may be shewn by you to the rules prescribed for the amendment of the new system. …” “Charters,” Rawlins Lowndes warned, “ought to be considered as sacred things….” The Anti-Federalists saw in the proceedings and proposals of the Philadelphia Convention a threat to that “publick faith and confidence,” which “bind[s] and cement[s] the community” and “establishes] them as a body politick.”4 Of course the Anti-Federalists agreed that the people have a right to alter their governments; but they insisted that any revolution (including the one most of them had proudly aided) must be secured by an initially fragile political stability. They criticized the Federalists, in typical conservative fashion, for threatening this precious stability. “The late revolution having effaced in a great measure all former habits, and the present institutions are so recent, that there exists not that great reluctance to innovation, so remarkable in old communities, and which accords with reason, for the most comprehensive mind cannot foresee the full operation of material changes on civil polity….” Hasty and blind adoption of government will lead to hasty and blind alterations, “and changes must ensue, one after another, till the peaceable and better part of the community will grow weary with changes, tumults and disorders, and be disposed to accept any government, however despotic, that shall promise stability and firmness.”5

Far from straying from the principles of the American Revolution, as some of the Federalists accused them of doing,6 the Anti-Federalists saw themselves as the true defenders of those principles. “I am fearful,” said Patrick Henry, “I have lived long enough to become an old fashioned fellow: Perhaps an invincible attachment to the dearest rights of man, may, in these refined enlightened days, be deemed old fashioned: If so, I am contented to be so: I say, the time has been, when every pore of my heart beat for American liberty, and which, I believe, had a counterpart in the breast of every true American.”7 The Anti-Federalists argued, as some historians have argued since, that the Articles of Confederation were the constitutional embodiment of the principles on which the Revolution was based:

Sir, I venerate the spirit with which every thing was done at the trying time in which the Confederation was formed. America had then a sufficiency of this virtue to resolve to resist perhaps the first nation in the universe, even unto bloodshed. What was her aim? Equal liberty and safety. What ideas had she of this equal liberty? Read them in her Articles of Confederation.8

The innovators were impatient to change this “most excellent constitution,” which was “sent like a blessing from heaven,” for a constitution “essentially differing from the principles of the revolution, and from freedom,” and thus destructive of the whole basis of the American community. “Instead of repairing the old and venerable fabrick, which sheltered the United States, from the dreadful and cruel storms of a tyrannical British ministry, they built a stately palace after their own fancies…” 9

The principal characteristic of that “venerable fabrick” was its federalism: the Articles of Confederation established a league of sovereign and independent states whose representatives met in congress to deal with a limited range of common concerns in a system that relied heavily on voluntary cooperation. Federalism means that the states are primary, that they are equal, and that they possess the main weight of political power. The defense of the federal character of the American union was the most prominent article of Anti-Federalist conservative doctrine. While some of the other concerns were intrinsically more fundamental, the question of federalism was central and thus merits fuller discussion here, as it did in that debate.

Storing, Herbert J. (2008-12-02). What the Anti-Federalists Were For: The Political Thought of the Opponents of the Constitution (Kindle Locations 138-192). University of Chicago Press. Kindle Edition.

In 1781, when the thirteen state legislatures had ratified the “Articles of Confederation and Perpetual Union,” they agreed never to alter them without unanimous consent. Six years later, during the winter of 1786– 87, every state but Rhode Island elected delegates to a federal convention, to be held in Philadelphia the following summer. The meeting had been called, as Congress observed, “for the sole and express purpose of revising the Articles of Confederation.” Delegates were to propose amendments that would take effect only after clearing Congress and every state legislature. 6 The members of the Philadelphia convention decided to ignore these instructions, proposing not to alter the Articles of Confederation but to abolish them. The regime they created would begin exercising sovereignty not when it was endorsed by Congress and all thirteen state assemblies, as the Articles required, but as soon as it received the approval of nine state ratifying conventions. Whatever else it was, the process that resulted in the U.S. Constitution was indisputably, according to the rules in place at the time, unconstitutional.

In defense of their unorthodox methods, the Framers of the Constitution boldly avowed that they had decided to ask their fellow citizens to assert the same prerogative they had insisted upon in 1776— their right of revolution. 7 The difference, of course, was that the Federalists, like the Shaysites, were rebelling against their own republic . Like the Massachusetts insurgents, some of the Framers claimed they simply had no choice. “The House on fire must be extinguished,” Pennsylvania attorney James Wilson declared, “without a scrupulous regard to ordinary rights.” 8

The members of the federal convention did not suddenly come up with the idea of junking the Articles of Confederation after they all arrived in Philadelphia. Many, in fact, had decided years earlier to try to establish a new national government. 9 In plotting to ignore the instructions they had received from the state assemblies, the delegates displayed an extreme version of the belief that the elected representative is not simply an instrument of his constituents’ will. He is instead an independent thinker who ought to execute justice as he himself defines it.

James Madison, Alexander Hamilton, Charles Pinckney of South Carolina, and other delegates brought proposals for overthrowing the Articles of Confederation with them to Philadelphia . But they did not discuss their intentions publicly. If they had, assemblymen in their home states probably would not have chosen them. It is an unsettling but inescapable fact that several of the principal authors of the U.S. Constitution, which has served as a model for representative governments all over the world, would never have made it to Philadelphia if their constituents had known their real intentions. There is more. If the various proposals to create a new national government drafted in the spring of 1787 had been made public, several state legislatures might have joined Rhode Island in steering clear of the convention altogether. The Constitution that the delegates were writing would consolidate the thirteen previously sovereign states into a single nation, John Lansing of New York declared three weeks into the deliberations, and his state “would never have concurred in sending deputies to the convention, if she had supposed the deliberations were to turn on a consolidation of the States.” 10

It has frequently been noted that hardly any of the federal convention delegates tilled the soil for a living. Since nine in ten free Americans were farmers, the Framers were, demographically speaking, unrepresentative in the extreme. And yet for all that, the nation’s agricultural majority did exert a significant influence on the convention. In fact, farmers had begun to influence it even before it opened. As the delegates traveled to Philadelphia late in the spring, they were looking over their shoulders. Had they been confident that their constituents would meekly acquiesce in whatever plan they produced, the delegates who wished to overthrow the Articles of Confederation would not have felt the need to conceal their intentions.

Holton, Woody (2008-10-14). Unruly Americans and the Origins of the Constitution (Kindle Locations 3067-3099). Macmillan. Kindle Edition.

What most troubled Roane was the Court’s assertion of the primacy of the federal government over the states and its expansive formulation of “implied powers.” Surely the word “necessary” (in the Constitution’s “necessary and proper” clause) restricted the meaning of that phrase, Roane argued.

Jefferson was elated to read Roane’s “Hampden” letters. Like Roane, he disputed the Supreme Court’s claim to serve as the final arbiter of constitutional questions, either within the federal government or between the federal government and the states. He, too, lambasted Marshall for spearheading a movement designed to transform the American government into one “as venal and oppressive as the government from which we separated.” Jefferson even took strong issue with Marshall’s way of delivering court opinions as if they were unanimous, rarely recording minority opinions and thus virtually silencing any dissenting members of the Court. “An opinion is huddled up in conclave, perhaps by a majority of one,” Jefferson wrote, “delivered as if unanimous, with the silent acquiescence of lazy or timid associates, by a crafty chief judge, who sophisticates the law to his mind, by the turn of his own reasoning.”

The sweep of the McCulloch decision dismayed Madison, too. While the case had obviously called for a judicial decision, Madison wrote to Roane, it had not called for such a broad and expansive interpretation of the “necessary and proper” clause. Marshall’s opinion in that case, Madison added, had the ominous effect of bestowing on Congress a discretion “to which no practical limit can be assigned.” The Court’s decision had simply empowered the “ingenuity” of the legislative branch to exercise any and all powers-including unconstitutional ones. The danger was that such judicial rulings might lead to a complete transformation of the federal system, converting “a limited into an unlimited Government.”

Madison found himself even sympathizing with his old foes, the antifederalists. Many federalists, he ventured, would have joined forces with the antifederalists in rejecting the Constitution, had they suspected that the Court would impose such a “broad & pliant” construction of the Constitution.

Susan Dunn. Dominion of Memories: Jefferson, Madison, and the Decline of Virginia (Kindle Locations 1771-1782). Kindle Edition.

That growing sense of backcountry identity provides an important background for the main political event of 1787, when another group of people in eastern Pennsylvania went to work on another sort of political blueprint, the federal Constitution. Given the upsurge of recent scholarship on agrarian unrest in the Revolutionary era, the relationship between farmers and the Framers now stands in sharper contrast. In Unruly Americans, a book that picks up where Forced Founders ended and expands its view to Constitution-making, Woody Holton reminds us that in a nation in which nine out of ten free Americans were farmers, there were no yeomen directly involved in the Constitution-making process; the Framers were “demographically speaking, unrepresentative in the extreme.”192 Still, Holton argues, even though formally excluded from the framing process, yeomen did gain an implicit sort of representation among the men who went to Philadelphia in 1787. Agrarian protests had been a consistent force of internal pressure on government, repeatedly pushing state officials for various forms of redress—religious toleration, or at least relief from paying taxes to support a religious establishment; paper money, or at least relief from paying taxes in scarce specie; and greater political representation, or at least relief from the power of entrenched elites. The rural uprising that swept Massachusetts in 1786–87—commonly, but erroneously, called Shays’s Rebellion—has become the most historically visible among these movements, and it still generates a good share of historians’ attention.193 As Holton notes, however, Massachusetts was not the only state to experience unrest in that period: neighboring New England states—New Hampshire, Connecticut, and Rhode Island—also witnessed an upsurge of protest, as did other states down the eastern seaboard, from New Jersey to Virginia to South Carolina.194 Many elite political leaders looked on with frustration at the concessions rural folk wrung out of their state governments, and part of their purpose in calling for a new national framework of government was to correct the alleged excess of democracy they deplored. “From the Founders’ perspective,” Holton explains, “the policies adopted by the state legislatures in the 1780s proved that ordinary Americans were not entirely capable of ruling themselves.”195 And yet any attempt to assert greater control over the various state governments still had to take account of the popular protests that had made those states concede to their people. “As the delegates traveled to Philadelphia late in the spring,” Holton notes, “they were looking over their shoulders”—fearful, even forced, Framers, wary of unruly ordinary folk who still seemed less than fully reconciled to the results of the Revolutionary settlement. Even though the Framers enclosed themselves in secret session inside the Pennsylvania State House, “the temper of the times,” as Sean Wilentz usefully puts it, “seeped into the room.”196

That seepage proved to be significant. Historians who focus primarily on the men inside the room at the Constitutional Convention often portray the Framers as an enclosed, if often contentious, intellectual community who, for “all their prejudices, their passions, their errors of opinion, their local interests, and their selfish views,” as Franklin so famously put it, still produced a “system approaching so near to perfection as it does.” But the debates among the delegates that Madison so carefully recorded were only one part of the convention’s controversies. The degree of disagreement among the Framers on the inside seems comparatively pale when compared to the passionate opinions of ordinary people on the outside, who increasingly claimed recognition for the role—and the rights—they had established during the Revolution. No matter how much the men who created the Constitution might have hoped to establish a government that relied on the guidance of a “natural aristocracy”—men such as themselves, for instance—they could not do as they pleased. To “secure domestic tranquility,” the architects of the Constitution realized, meant more than designing a central government that could suppress internal insurrection; it also meant, as Holton notes, disguising their antidemocratic intentions:

“If the federal convention delegates had not feared that the nation’s agrarian majority would reject it, they would have created a considerably more elitist document.”197

Even so, the document they did create did not receive a free pass from farmers. Richard Beeman, whose Plain, Honest Men provides a perceptive, inside-the-State-House analysis of the Framers’ debates, also turns his attention beyond Philadelphia to the nature of the subsequent ratification debate in rural regions. In Pennsylvania, he notes, the combination of urban professionals and artisans and tradesmen in Philadelphia along with “surprisingly strong showings in some of the western counties” gave the Federalists a decided edge, but some rural Antifederalists attacked the elitist-seeming Constitution with “a rhetoric of grassroots populism that was well suited to their backcountry constituencies.” In Virginia, voters in the Piedmont and backcountry likewise opposed the new Constitution, as did backcountry inhabitants of North Carolina, where a “hearty distrust of central authority was deeply entrenched, … dating at least to the so-called Regulator movements of the 1760s.” The more recent Regulation in Massachusetts also weighed on the delegates to that state’s ratifying convention, and residual sympathy for the insurgents’ grievances remained a factor in the debate, which “turned on issues of social and economic conflict.” Although Beeman does not directly engage Charles Beard’s economic analysis of the ratification vote—indeed, Beard’s name does not appear in the book—he does remind us that resistance to ratification became most prominent in the countryside and that such resistance often spoke “the language of populist democracy” to the power of the new political system.198

Rural resistance was not just a flash in the political pan. “Something strange happened in the Pennsylvania countryside in the years following the federal Constitutional Convention of 1787,” Bouton reports: “large numbers of farmers closed the main road that led in and out of their communities,” and he counts sixty-two such incidents for the next eight years, until 1795. Rural people apparently took such action, he explains, to defend themselves from the encroaching power inherent in two recently ratified constitutions, the federal Constitution of 1787 and the new Pennsylvania Constitution of 1790, a Federalist-sponsored effort to overturn the state’s dramatically democratic constitution of 1776. In both cases, farmers feared, the new political systems represented a threatening victory on the part of the financial and political elites, and they closed the roads to try to protect themselves from the external agents of the state, particularly tax collectors, magistrates, and justices. The road closings had a short-term practical effect, slowing the operations of court proceeding and sheriffs’ auctions for debt, but they also symbolized a more general retreat from the larger political arena into overly localized isolation. “In this hostile new environment, ordinary folk who wanted to uphold their vision of the Revolution urgently needed to find ways to work together,” Bouton observes. Instead, they barricaded roads, a politically feckless step that cut them off from each other and undercut common action.199

This pattern of localized yeoman resistance began to take a decidedly different turn in 1794, however, when rural people in Pennsylvania reached beyond their local communities and joined in a more widespread expression of protest that challenged both state and national officials. Like the so-called Shays’s Rebellion of the previous decade, the “Whiskey Rebellion” has received fresh scholarly attention, beginning with the implications of the liquid commodity in question. To be sure, whiskey had something to do with the rise of unrest, not just as a commodity of trade and eventual target of taxation but, as Patrick Griffin notes, a symbol of “the sense of alienation, anti-authoritarianism, and violence that permeated many of the poorer settlements.”200 Yet the too-easy use of the label “Whiskey Rebellion,” a dismissive term first coined by Alexander Hamilton, tends to limit our view to local events and reinforces Hamilton’s original ridicule, leaving a simplistic image of “drunken, gun-wielding hillbillies,” Bouton writes, “frightening but too comical to be taken seriously.” Taking the resistance quite seriously and, equally important, locating it in the larger political context of the longer Revolutionary era, Bouton and Griffin underscore the chronological and geographical connections to events elsewhere in time and place. Engaging in familiar forms of protest reaching back through the Revolutionary era, “the whiskey men drew upon the lessons learned during their own period of politicization,” Griffin explains. To underscore that longer period of political connection, Bouton argues for calling the regional unrest the “Pennsylvania Regulations,” adopting a term that links the actions of the western settlers in the 1790s to other recurring attempts of rural people to control or correct the actions of their government officials, from the Carolinas in the pre-Revolutionary years to Massachusetts and other parts of New England in the 1780s. “The 1790s uprisings in Pennsylvania,” Bouton argues, “fit seamlessly into this pattern of popular regulation.”201

Young, Alfred F.; Nobles, Gregory (2011-09-01). Whose American Revolution Was It?: Historians Interpret the Founding (Kindle Locations 3715-3788). NYU Press short. Kindle Edition.

Wherever they lived, Anglicans (now Episcopalians) and Quakers, the two major religious groups least committed to the Revolution, were lopsidedly in the camp of hard money and property, well-empowered government, readmission of former loyalists, ratification of the Constitution, and the politics of incipient Federalism. That at least suggested religion as a factor.”

Other wartime religious political alignments were also transformed. Presbyterians, especially on the Scotch-Irish frontier, generally opposed the cosmopolitan, pro-ratification, and Federalist side, which included their old commander-in-chief, George Washington. The principal exception came in New Jersey, where many of the Federalist-leaning Presbyterians were transplanted Yankees with Congregationalist antecedents. Congregationalists themselves, generally cohesive during the war, split during the 178os along caste and class lines. The poor, rural, and anti-Tory became anti-Federalists, while the coastal and commercial cosmopolitans of New England, over the next generation, became the single most important national support base of the Federalist Party.

This regrouping of elites around a partial counterrevolution stood 1775-1776 relationships on their heads. Even though one hundred thousand Tories and loyalists had left the United States, two or three hundred thousand would have remained, plus at least as many neutrals. Within a few years of independence, conservative factionalists in some states were openly recruiting them or, in the case of emigres, enlisting their return. In loyalist districts of southern Delaware and eastern Maryland, few had ever moved.

Kevin Phillips. The Cousins’ Wars: Religion, Politics, Civil Warfare, And The Triumph Of Anglo-America (Kindle Locations 3875-3883). Kindle Edition.

Critics of the Constitution quickly perceived the compromises of 1787. Somewhat more gradually, they developed ideas about what those compromises indicated about the rest of the framers’ design. As antislavery became a significant, if not ubiquitous, theme in the debate over the Constitution during the fall and winter, federalists were forced to respond. North of Virginia, they developed four main justifications, or excuses, for the place of slavery in the Constitution. They celebrated compromise. They admitted the presence of necessary evils. They projected blame onto the Deep South. And they exaggerated the Constitution’s antislavery implications.

During the ratification debates , more framers, like the authors of The Federalist, went public with their disavowals of slavery, in order to help get the Constitution passed by majority votes in key state conventions. Yet the state -by-state nature of ratification made it easier for the federalists to stress different, even contradictory, aspects of the Constitution to different constituencies. The responses on the local level, and the rebuttals offered by the framers and their allies, established a pattern for the volatile mix of slavery, constitutionalism, and American party politics in the nineteenth century.

Antislavery, in its antifederalist mode, ultimately lost in the struggle for ratification, as antislavery would lose repeatedly in mainstream politics for the next several generations thanks in part to the Constitution’s rules. Its localism, in the end, was its great strength and its fatal weakness in a struggle against a nationalist silencing of the slavery issue. Still, antifederalist criticisms of slavery’s Constitution— and especially arguments about how compromises over slavery reflected and papered over related political problems— were heard. Antislavery politics gained publicity, credibility, and further refinement. Some antifederalists even called the framers on their selective federalism: their willingness to allow slavery in particular to escape from the oversight of the nation-state. Thanks to the antifederalists’ doomed struggle against the Constitution, antislavery became part of an American tradition of dissent.

Waldstreicher, David (2010-06-15). Slavery’s Constitution: From Revolution to Ratification (Kindle Locations 1441-1458). Macmillan. Kindle Edition.

While Madison wanted large representative districts for Congress to ensure the election of responsible gentlemen like himself, Anti-Federalists preferred that legislators “resemble those they represent. They should be a true picture of the people.” Melancton Smith of New York, a prominent middling Anti-Federalist, did not object to representatives being persons of education and influence, but they “should also include ordinary people.” In Massachusetts the fate of the Regulators created “a widespread fear of the governing elite,” which fed Anti-Federalism: “Every critic, it seemed, envisioned the ‘little people’ being stomped on by ‘the well-born,’ ‘the gentlemen,’ and ‘the aristocracy.'”62

For a variety of reasons, most Anti-Federalists championed the virtues of localism in politics as well as economic affairs.63 Although not all Anti-Federalists were egalitarian democrats, they looked on “democracy” far more favorably than their opponents did. Federalists rarely referred to “democracy” approvingly. Some elite Anti-Federalists also shared with Federalists a more restricted view of public opinion and the public sphere and held reservations regarding the wisdom of ordinary folk. But Federalists, again, were more skeptical of the common man’s judgment. They assumed that gentlemen would debate issues among themselves and guide the decisions of those below them. Middling and plebeian Anti-Federalists (and even some elite Anti-Federalists), however, possessed a much broader conception of the public sphere.64

“Popular” Anti-Federalists advocated a more inclusive public sphere “filled with debate in newspapers, pamphlets, broadsides and speeches . . . [and] imagined a form of robust politics defined by a free press and free speech that would extend across the whole of America. They were, as a result, quick to challenge efforts to mobilize traditional legal rules of libel, sedition, and prior restraint.”65 They also called attention frequently to the Federalists’ ability to dominate public opinion through control of most newspapers. It has been estimated that Federalists controlled as many as seventy-five newspapers, while Anti-Federalists could rely on never more than twenty; moreover, the latter came under economic pressure from “the merchant-banker-lawyer community that was anxious for quick ratification,” while “cancelled advertisements and discontinued subscriptions took their toll.” Anti-Federalists complained also—not without cause—of the blocking of the circulation of Anti-Federalist newspapers along the seaboard by unfriendly postmasters. When news of New York’s ratification reached Manhattan in July 1788, a mob celebrated by marching to the Anti-Federalist New York Journal and smashing furniture and typecases.66

Formisano, Ronald P. (2008-02-25). For the People: American Populist Movements from the Revolution to the 1850s (Kindle Locations 815-836). University of North Carolina Press – A. Kindle Edition.

These various conceptual tensions are indicative of the difficulties of the founding generation’s unprecedented effort to theorize the place of dissent in democracy. This would be a decades-long process and one never completely embraced by mainstream American thinkers. But the Anti-Federalist movement was a critical turning point, because it reflected the first sustained effort to conceptualize and practice a democratic dissent. In the end, the ratification crisis and the “Great Debate” it engendered would broach but not resolve many of the significant issues raised by those seeking to give dissent pride of place in democratic theory. For starters, there was the very real question of whether dissent should be rejected as a kind of treason. And if it was to be allowed, should anonymous dissent be permitted despite the mask it provides to prejudice and self-interest? Or should it be encouraged, in order to neutralize the overawing “authority of names” like Washington? On a more practical level, the dynamics of dissent were yet to be seriously explored, especially the power of those who controlled the terms of debate or the various institutions of discourse (most important, the press and the post office). Ultimately, there was the more conceptual, epistemological question of the nature of truth: was the truth revealed by discourse or created by it? Or, as Another of the People claimed, was truth merely sullied by dissent?

Amid other fundamental issues raised in the ratification debates, early Americans wrestled with these questions, drawing on episodic colonial efforts to answer them. The proper role of popular disorder—even violence—was always in the background, but it largely stayed there. As even Centinel admitted, the regulation in western Massachusetts had colored the ratification debate. The riot in Carlisle had been preceded by a Federalist mob’s intimidation of Anti-Federalist convention delegates in Philadelphia, but, in fact, violence was rare.10 As we shall see, Philadelphiensis captured much of the most insightful Anti-Federalist thinking, and while he felt that an avid Federalist printer deserved to be hanged in effigy, he would not encourage it: “I am sensible of the danger of inflaming the multitude under a free government” since justice is rarely done.11

The evolution during the eighteenth century of a theory of democratic dissent occurred in parallel with the narrowing of the legitimacy of popular disorder. Just as the tradition of quasi-legitimate popular disorder had roots in Britain and early colonial America, so the emergence of popular nonviolent dissent had roots in limited opposition to monarchical power and its delegated colonial authorities. But this development was still a struggle: both Puritanism and republicanism stressed consensus and consent. For Puritans, their covenant with God was communal, requiring community-wide acquiescence and active, not just passive, obedience. Famously, meaningful opposition in early Puritan settlements led to chosen or forced exile for some (e.g., Roger Williams, Anne Hutchinson).

Similarly, though republicanism allowed for limited (and often elite) self-government and some disagreement, ideally such dissent was only a prelude to a self-sacrificing consensus that held dissension, factionalism, and ultimately anarchy at bay. In 1760, for example, two gentlemen who disagreed with the prevailing view of a public hearing felt the need to publish complaisant apologies for their mild dissent, thereby demonstrating that all opposition was presumed illegitimate.12 In the aftermath of the tumult and popular participation of the War, Americans began to allow for some contestation, but they worried about how it might be expressed. As Richard Hofstader long ago explained, “They also valued social unity or harmony” and saw opposition groups as destructive. Alexander Hamilton’s Federalist 70 demonstrates this general ambivalence: “Differences of opinion” in a legislature can bring “circumspection” but when a “resolution … is once taken, the opposition must be at an end.”13

Martin, Robert W.T. (2013-07-01). Government by Dissent: Protest, Resistance, and Radical Democratic Thought In the Early American Republic (Kindle Locations 1224-1255). NYU Press. Kindle Edition.

From Articles of Confederation to the Constitution

I’ve become increasingly fond of or at least seriously curious about federalism. I’ve often been attracted to libertarianism, albeit more leftist versions, which relates to federalism and states rights (also, the paired concepts of republicanism and democracy). What got me thinking more about federalism over the years are my ongoing studies of regionalism from the colonial era to the present. The distinctly separate colonies set the stage for both regionalism and federalism.

One thing that increased my interest in federalism is its relationship to the Articles of Confederation. This past year I learned that the Articles of Confederation had largely been the creation of John Dickinson, a Quaker-raised colonist and reluctant revolutionary from the Middle Colonies. The Middle Colonies created the theoretical justification and the practical working model for uniting the colonies into a single “United States” (or actually isn’t that plural?). The reason for this is that only the Middle Colonies had a regional culture of multiculturalism which meant there was a ready made vision and operating political system of balancing unity and diversity (Diversity within unity? Or unity through diversity? Or Both?).

When the Articles of Confederation needed improvement, the founders set about creating a constitution. However, the original intent was to create a constitution that would improve on the Articles of Confederation, not replace it. The first mistake of American politics was the creation of a constitution that did replace it and, one could argue, that mistake has led to an endless cascade of problems ever since.

The federalist support of the American Constitution came to be seen as opposite to and opposing of the anti-federalist position, but some of the anti-federalists weren’t against a constitution in principle or even against federalism in principle. They were against a federalist constitution that went contrary to the vision that motivated and justified the revolution.

Federalism, unlike it’s often been portrayed, wasn’t inherently in contradiction to the Articles of Confederation. It supposedly wasn’t meant to create a new nation-state or empire in the style of European countries, but that is what it later came to mean or anyway those were the consequences, intended or unintended. Federalism versus Anti-Federalism was a question of the balance between localized and centralized governance, not a question of a federal government ultimately being able to trump state governments in all matters. The role of the federal government was to mediate and moderate between the state governments, not to act completely independent of state governments. We long ago lost that notion of balance and moderation.

The anti-federalists argued that they were the true federalists. “Another complaint of the Anti-Federalists,” as the Wikipedia article explains, “was that the Constitution provided for a centralized rather than Federal Government (and in the Federalist papers James Madison admits that the new Constitution has the characteristics of both a centralized and federal form of the government) and that a truly federal form of government was a leaguing of states as under the Articles of Confederation.” The anti-federalists have been proven correct in their fears and warnings.

John Dickinson,who some consider to be a moderate federalist despite his being the main author of the Articles of Confederation, described his ideal constitutional government in his Fabius Letters. He explained that, “a territory of such extent as that of United America, could not be safely and advantageously governed, but by a combination of republics, each retaining all the rights of supreme sovereignty, excepting such as ought to be contributed to the union; that for the securer preservation of these sovereignties, they ought to be represented in a body by themselves, and with equal suffrage.” Whatever the United States has become, it certainly couldn’t be described as a “combination of republics” or rather, one could say, a confederation of republics. We’ve strayed far from that vision.

This confederation-based federalism wasn’t immediately destroyed by the Constitution that empowered the slave aristocracy and the capitalist plutocracy, but the seed of its destruction was planted within it. Soon after the signing of the Constitution, factions were already forming to take control of the federal government. Various factors gave the Southern colonies great power that extended into the early federal era. This allowed the Southern states to initially take control of the federal government. This power led them to try to force their social order and their slave laws onto the rest of the country. This angered the residents of the non-slave states and the settlers in the territories who had little desire to become slave states. Thus federalism died at the hands of the slavocracy and plutocracy. Those who rule with concentrated power and wealth have a tendency to further concentrate power and wealthy… surprise, surprise.

The Northern alliance of states wrested control following the Civil War. Northerners then did the same thing to the South that Southerners, before the Civil War, had done to the North. Politics had fully become a game of power and factionalism. What came to rule was partisan politics, special interests, and big money lobbyists; thus, setting the stage for the following century. Still, this was just the inevitable results of the anti-confederation and anti-libertarian constitutional order itself that was built on oligarchy (i.e., slavery, political oppression, aristocracy, plutocracy, and class-based inequality). It took different forms as the country developed, but this basic social order remains to this day.

Most Americans don’t understand what was lost when federalism ended, especially when confederation-based ‘true’ federalism ended, and why the constitution was such a failure of political vision (or rather the success of the wrong political vision). Federalism was what made the American experiment so unique. Yet we’ve just become another vast empire.

In fact, we became a full-fledged empire the moment that Jefferson made the Louisiana Purchase, although the imperialist vision was present long before that (almost implicit in the early justifications of American independence as, in Paine’s words, “Small islands, not capable of protecting themselves, are the proper objects for kingdoms to take under their care; but there is something absurd, in supposing a continent to be perpetually governed by an island.”). From that point on, America began its steady expansion across the North American continent and its steady expansion by way of attacking independent nations/peoples and claiming their territory when possible (the attacks on Canada and on Cuba being two of the failures of this imperialist project). This has led America, like the colonial empires before it, to now have in its possession vast territories not just on a single continent but also on various islands, from incorporated territories such as Hawaii to unincorporated territories such as Philippines, Puerto Rico and Guam (a total of 6 inhabited unincorporated territories, 7 uninhabited unincorporated territories, and 3-5 depending on how you count former territories).

This colonial imperialism also has led America to be such a diverse country. It is ironic that those who praise America’s greatness because of its power often criticize the diversity that was the inevitable result of this imperialist project. You can’t have one without the other, as has been demonstrated with every great empire that has ever existed from the ancient empires of Rome and Hellenistic Greece to the later colonial empires of Spain, France, Netherlands and Britain.

Federalism allowed for a different kind of unity within diversity. The Southern colonies and later states favored monoculture that was strictly forced by a hierarchical social order. Some of the Northern governments/elites, however, embraced, encouraged and/or tolerated multiculturalism. Early federalism allowed these regional governments to have a fair amount of local control over their respective immigration policies, along with local control of their own ports and borders. It was the failure of federalism that led to proposals of secession. It wasn’t just Southerners that sought secession but also Northerners as well.

Even as federalism failed, the conditions that made it possible continue to exist.

Now that we have an empire, we can’t easily reverse the path we’ve taken. We could give independence back to the Native Americans, the Southwestern Hispanics, and the various island peoples. We could do that, but at this point many of these individuals and communities feel as American as the rest of us and they likely don’t want to have their American citizenship taken away from them.

A better solution would be to re-create confederation-based federalism by returning some of the power to local governments, local communities, and local populations. If Southerners want to be xenophobic, then let them be as xenophobic as they want within their own state boundaries. But I don’t want Southerners forcing their xenophobia onto me nor forcing onto me their fundamentalism and elitist class-based social order. Also, I don’t want to force my Midwestern values onto anyone else. Just let us Midwesterners do our own thing. I say let every state and every region do what it wishes, within some basic limits along the lines of the model of the Articles of the Confederation. Some states would choose to have tightly controlled borders and some open borders, some more democratic governance and others less so, some more capitalist and others more socialist, some with tough-on-crime laws and others full of a bunch of pot-smoking hippies getting gay married, and all of that would be perfectly fine.

Since some people are so obsessed about original intent, let us do what was originally intended. Let us make a constitution that improves upon, rather than replaces, the Articles of Confederation.

One context for my thinking is, oddly, the movie Hunger Games: Catching Fire. I thought this movie would be a fun note on which to end.

In that fictional world, there is a central government that has come to gain control over all the people. The different regions, I’m not sure how large, are divided up into districts. It seems these districts are relatively isolated, either geographically or by carefully controlled borders.

It is standard divide-and-conquer strategy. One of the ways this division is maintained is by the Hunger Games. These annual contests served a similar diversionary purpose as American elections. Everyone obsesses over who is going to win, but no matter who wins nothing is essentially going to change for those in power remain in power (or rather those behind the power remain behind the power).

This division of districts reminds me of all kinds of divisions in America. It was the regional divisions that led to the local political factions to seek to take over the centralized ‘federal’ government and enforce their political will onto the entire country. I was the formation of political parties, of which Washington warned about, that led these regional factions to become so nationally powerful. It was the divisions of religion, race and ethnicity that served as constant distraction and animosity among the lower classes which were then manipulated and exacerbated by the upper classes in consolidating their own power.

A centralized government only ever serves the interests and agendas of those with centralized power and wealth. Also, it is the centralized government that allows the continued centralization of power and wealth. Generation after generation, this has led to an ever-growing Establishment of hereditary plutocracy and political family dynasties.

The states no longer act as independent or even semi-independent republics. They are no longer functioning ‘states’ for they have fully come under the control of the federal government. This isn’t just about states rights for that can simply mean power centralized in the state governments. Self-governance is also about individuals, all individuals (lower classes and minorities included). Self-governance is also about communities which means a society built on individuals, families, churches, neighborhoods, militias, grassroots organizing, and actually functioning democracy.

We Americans aren’t as far away from the Hunger Games as we might like to imagine ourselves to be. Certainly, the post-9/11 centralization of power has brought us closer to such an extreme dystopia or else some other variant (e.g., The Handmaid’s Tale). Worse still, so many Americans have bought into the propaganda that, if we just fight for our faction (our race, ethnicity, religion, or whatever), we will finally have the America we want and the America we like to project onto the past. As with the Hunger Games, it is a vision of the ultimate win-lose scenario where the only way our faction can win is for all other factions to lose. This isn’t a road to unity, whether with diversity or not. Instead, this is the road to oppression and a second revolution.