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Commentary

Did the Constitution Betray the Revolution?


     
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YES

by Jeffrey Rogers Hummel

The Constitution as counterrevolution: A tribute to the Anti-Federalists

The standard American myth celebrates the Constitution as the triumphant culmination of the American Revolution. This is largely untrue and misleading.

The alleged “critical period” between the end of the Revolution and the Constitution’s adoption was not dominated by economic depression, political turmoil, and international peril, jeopardizing the independent survival of the American experiment in liberty. Those who assembled at the Philadelphia Convention to write a new Constitution were not disinterested demigods, nor did they intend to establish a federal system of divided government powers. The Constitution did not have the support of most Americans. And finally, rather than representing the culmination of the previous Revolution, the Constitution represented a reactionary counter-revolution against its central principles.

The American Revolution, like all great social upheavals, was brought off by a disparate coalition of competing viewpoints and conflicting interests. At one end of the Revolutionary coalition stood the American radicals—men such as Samuel Adams, Patrick Henry, Thomas Paine, Richard Henry Lee, and Thomas Jefferson.

Although by no means in unanimous agreement, the radicals objected to excessive state power in general and not simply to British rule in particular. Spearheading the Revolution’s opening stages, they were responsible for the truly revolutionary alterations in the internal status quo: the abolition of slavery in the northern states, the separation of church and state in the southern states, the rooting out of remaining feudal privileges everywhere, and the adoption of new, republican state constitutions containing written bills of rights that severely hemmed in government power.

At the other end of the Revolutionary coalition were the American nationalists&Mac226; an array of mercantile, creditor, and landed interests. The nationalists went along with independence but opposed the Revolution’s libertarian thrust. They sought a strong American state with the hierarchical features of the 18th-century British state, only without the British. The Revolution started out as a struggle against taxation. What passed among the newly independent American states for a central government, the Second Continental Congress, did not have access even to this usual state power. For revenue, Congress initially had to rely on requisitions from the state governments, which could not get away with very extensive taxation themselves.

Yet the military strategy adopted by Congress required large expenditures. Military conservatives such as George Washington induced Congress to focus the Revolutionary effort on a costly conventional force, the Continental Army, rather than the militias. By the 1781 Yorktown campaign, popular disgust at the army’s continuing hand-to-mouth existence gave the nationalists uncontested control of Congress. They proceeded to implement a financial program that gave the central government much more power.

Already, the Revolution had taken an important step in this direction with the drafting of the Articles of Confederation, a written constitution. Here we encounter the first distortion in America’s constitutional myth. The Articles left Congress not too weak, as defenders of the Constitution claim, but too strong: the Articles made the central government permanent; and an influential nationalist faction—land speculators—delayed ratification until Congress was given direct jurisdiction over the states’ western lands. The Articles’ only saving grace was that they failed to give Congress any authority to collect taxes or regulate trade.

At the time of the Articles’ adoption, the most powerful nationalist in Congress was Robert Morris, a wealthy Philadelphia merchant. Congress appointed him head of the newly created Department of Finance, from which post he became a virtual financial dictator. The central government’s functions were concentrated within his and other new executive departments, which Morris filled with his allies and partners.

The linchpin of Morris’s financial system was the power of taxation. Only thus could the nationalists’ desired centralization of power be consummated. An amendment to the Articles granting Congress the power to impose an import duty looked in 1782 like it would receive the required unanimous approval of the states, but tiny Rhode Island held out.

Morris and the nationalists made a last-ditch effort in March 1783 to coerce the states with the Continental Army, then encamped at Newburgh, New York. They encouraged a plot among Washington’s officers, and a military coup loomed on the horizon. The radical suspicion of standing armies stood fully vindicated, for never has the United States been closer to succumbing to an American Caesar. At this point, however, Washington, although firmly endorsing nationalist goals, balked. His personal intervention caused the Newburgh conspiracy to disband.

Peace unraveled Morris’s financial and military program. As the war wound down, the financial pressure on the national government, and the apparent need to grant taxing power to Congress, diminished. The nationalists lost control of Congress in late 1783, and Morris resigned his post after an incriminating investigation into his financial machinations. Congress wisely discharged most of what was left of the Continental Army.

Unfortunately, the war-induced nationalization of the Northwest lands had shifted the burden of policing that territory from the states to a national force. So Congress authorized a small frontier constabulary to be raised from the state militias for fixed periods. (The still-unceded Southwest territory got along fine without congressional attention.) Eastern land speculators, however, found the Northwest force insufficient to protect their vast claims from Indians, squatters, and foreign intrigue. They looked forward instead to a strong standing army.

In this desire, they were joined by many of the Continental Army’s former officers. Chastened but not repentant after the Newburgh conspiracy, they had organized a hereditary fraternal association, the Society of the Cincinnati. Through this new nationalist pressure group, they campaigned for a military capable of quelling domestic disturbances and rivaling European armies.

Financially, one of the nationalists’ most potent political weapons was the enduring Revolutionary war debt. Once Congress repudiated the paper money it had issued during the war, there should have been no obstacle to repudiating the debt as well. After all, the states, at Congress’s behest, had forced paper money upon the people with price controls and legal-tender laws. Moreover, a big chunk of the $35million debt came from Congress’s profligate promise of five years’ pay to army officers. Still worse, $11 million resulted from loans that had generally been made with depreciated currency. This was an overestimate by as much as 75 percent of their real specie worth and thus a generous subsidy to creditors. From the standpoint of equity, the paper-money claims had clear priority over the debt.

The prospect of the states themselves paying off the war debt was more likely than repudiation. When Morris took his post, the state governments had already retired, by taxation, significant parts of the national debt. The nationalists, however, vigorously opposed state assumption, for it would diminish the prestige of the central government. Morris effectively forestalled repudiation and state assumption. The lingering national debt provided both a continuing rationale for national taxation and another special interest supporting it.

An equally persuasive rationale for a more powerful central government was trade regulation. Indeed, subsequent accounts have blown this rationale up into an utterly fanciful picture of competing trade barriers between the various states disrupting the American economy. The two factual instances on which this overblown picture is largely based involve New York and Connecticut, which taxed foreign goods entering from neighboring states—an economically insignificant restriction. The prevailing rule prior to the Constitution was complete free trade among the states.

If a general reduction in trade restrictions was what the nationalists were really after, this would hardly have justified a central government with the power to tax. In reality, American merchants were after uniform navigation laws, because they wanted some coercive means of monopolizing the American carrying trade. And American artisans wanted uniform protective tariffs to stop their customers from buying the cheap foreign goods flooding American markets at the end of the war. The unique economic fortunes of these two groups and their quest for special privileges contributed much to the exaggerated impression of postwar depression.

Despite the coalescing of these various war-engendered interests, all their direct efforts to strengthen the Articles of Confederation proved futile. Radicals effectively blocked a second proposed taxing amendment and a proposal to give Congress authority to regulate trade. Congress defaulted on interest payments for the domestic debt in 1782 and for the foreign debt in 1784. At times, Congress could not even carry on business for lack of a quorum.

Consequently, Alexander Hamilton and James Madison, assuming leadership of the nationalists, made an end run around the Articles and called for a special convention to meet in Philadelphia. Assisting them was a growing antidemocratic mood throughout the country. Many Tories had returned to political life, and although they had bitterly opposed independence, they still shared the political vision of the nationalists. An even greater cause of disillusionment with democracy was the outbreak of Shays’ Rebellion in western Massachusetts in 1787.

Shays’ Rebellion, according to the nationalist rendition, was an egalitarian assault on the property rights of creditors. This rendition has some factual basis, but not much, for it ignores the decisive role of a contemporaneous fiscal crisis at the state level. The state governments had acquired substantial war debts of their own. This required a tax burden undreamed of before the war. Seven states, beginning in 1785, issued new rounds of paper money, which either substituted for taxes directly or, when loaned by the states to landowners, offered something other than scarce specie for paying taxes.

Massachusetts, however, was not one of the states issuing paper money&Mac226; or giving any other kind of taxpayer relief. Moreover, its taxes fell inequitably on the state’s agrarian sector. The Revolutionary historian Merrill Jensen estimates that at least a third of the average Massachusetts farmer’s monetary income went to taxes after 1780. Here at last we find a substantial basis for the tale of a “critical period” depression. With postwar deflation, it was a fortunate farmer who could obtain enough specie to pay both his taxes and his debts. Shays’ Rebellion was in essence a tax revolt.

The incident alarmed America’s governing classes. Prior to the rebellion’s outbreak, only Virginia, Pennsylvania, and New Jersey had chosen delegates to the Philadelphia Convention. Subsequently, every state except Rhode Island sent delegates, and Congress even endorsed the convention.

Its official function was to propose revisions to the Articles. But the delegates, meeting in secret, quickly decided to draft a totally new document. Of the 55 delegates, only 8 had signed the Declaration of Independence. Most of the leading radicals, including Sam Adams, Henry, Paine, Lee, and Jefferson, were absent. In contrast, 21 delegates belonged to the militarist Society of the Cincinnati. Overall, the convention was dominated by the array of nationalist interests that the prior war had brought together: land speculators, ex-army officers, public creditors, and privileged merchants.

These interests wanted to establish a consolidated government under which the states would be subordinate, like counties and local governments within the states. But as with the Revolution itself, the Constitution eventually turned into the hybrid product of a disparate coalition. The nationalist dream of replacing the Articles’ guarantee of full state sovereignty with a fully sovereign national government slowly eroded. Some of this erosion occurred just as America’s constitutional myth has it, through the compromises worked out within the Philadelphia Convention. But most occurred outside the convention, through a subtle process of reinterpretation, when the nationalists were compelled to defend their completed handiwork to the public.

Most Americans opposed a sovereign national government. The nationalists thus pulled off a significant linguistic coup by successfully seizing for themselves the label “Federalist.” They had designed the Constitution to replace the federal system of government under the Articles of Confederation with a national system. The true defenders of federalism were therefore the Constitution’s opponents. One disgruntled “Anti-Federalist,” Elbridge Gerry, suggested that because one group was for ratifying while one was against, “their names ought not to have been distinguished by Federalists and Anti-Federalists, but Rats and Anti-Rats.”

The Anti-Federalists weakened their own case by admitting the need for some additional national power in order to make the central government independent of the state governments. This permitted the Federalists/nationalists to deny vigorously but disingenuously that the Constitution would subordinate the states. Instead, it would create a delicate balance of powers between the national and state governments, each sovereign within its own realm. In other words, the much-touted federalism of the U.S. system was in no way an intended consequence of the Philadelphia Convention. It was an unintended and insincere concession that the Anti-Federalists wrenched from the Federalists during the ratification struggle.

This Federalist equivocation over the powers granted the national government spilled over into the most controversial issue of the ratification struggle&Mac226; the Constitution’s omission of a bill of rights. The Federalists defended this omission with the claim that the Constitution provided a government possessing only specifically enumerated powers. As a result, argued Hamilton in The Federalist No. 84, a bill of rights would be positively harmful. “They would contain various exceptions to powers which are not granted, ” implying that the national government could do anything not specifically prohibited.

The trouble with this argument was that it contradicted a second Federalist argument based on the explicit words of the Constitution. In the very same Federalist paper, Hamilton pointed out that the Constitution already contained a truncated bill of rights scattered throughout its clauses. There was a prohibition against ex post facto laws and bills of attainder, a ban on religious tests for holding office, guarantees of habeas corpus and jury trials in criminal cases, etc.

The Federalists were able to ram the Constitution through the first five state conventions in rapid succession. But by the time the Constitution was under consideration in the key states of Massachusetts, Virginia, and New York, they were in trouble. To secure ratification, they had to promise to amend the Constitution. Overall, five states coupled their ratifications with proposed amendments, while in two others, the minority issued amendments. The North Carolina convention refused to ratify at all without a bill of rights similar to the one it drew up, and Rhode Island would have nothing whatsoever to do with the Constitution.

The proposed amendments often went far beyond a simple bill of rights. In particular, a curb on the national government’s taxation power found unanimous support. The near-addition of a taxing power to the Articles of Confederation indicates that even many Anti-Federalists had been willing to permit the central government to collect import duties. They insisted that all internal taxes, however, be at the discretion of the state governments.

Unable to defeat the Constitution in the ratifying process, the Anti-Federalists hoped to enact these drastic amendments, stripping the central government of many of its new powers, through a convention to be called by two-thirds of the states. Thus they pinned their hopes on a second constitutional convention that would undo the work of the first. New York, Virginia. North Carolina, and Rhode Island all promptly called for such a convention. However, because North Carolina and Rhode Island had not ratified the Constitution, their endorsements did not count toward the requisite total. Having made the tactical decision to work within the legal framework of the new Constitution, the Anti-Federalists discovered that the legitimacy they had conferred on the new government worked against them.

At the other end of the political spectrum, many ardent Federalists were quite prepared to renege on their solemn promises to amend the Constitution now that their new national government was in operation. Only the politically astute Madison seemed to realize that the popular demand for a bill of rights must be fulfilled. While privately complaining about “the nauseous project of amendments,” Madison culled through the more than 200 state proposals, eliminating any that, in his words, might “endanger the beauty of the Government.” He successfully steered the resulting Bill of Rights through Congress. Although these widely publicized amendments would not be ratified for several years, they mollified many opponents of the new government.

Most of the Bill of Rights restricted the national govenment’s authority over its subjects. Only one part dealt with the relationship between the states and central government: the Tenth Amendment. A similar clause had been part of the Articles and every state ratifying convention that proposed amendments to the Constitution had requested just such a change. But Madison worded the amendment skillfully. to calm opponents of the Constitution without detracting one iota from the power of the national government. Whereas the Articles had guaranteed states’ “sovereignty, freedom and independence,” the Tenth Amendment only “reserved” to the states or people all the powers not “delegated to the United States by the Constitution.” Obviously, how much the amendment furthered states’ rights depended on how much power the Constitution granted to the national government in the first place.

Meanwhile, the Federalists took quick advantage of the Constitution’s unequivocal establishment of an independent executive and a central taxing authority. Washington was elected president, and he appointed Hamilton Treasury secretary. Hamilton resurrected Morris’s entire financial program. Its central feature was still the national debt. The interest alone accounted for almost half of the new government’s expenditures, which the Federalists financed by imposing a tariff and a variety of internal taxes.

Any doubts about the national government’s grandeur were dramatically dispelled in 1794, when it smashed the Whiskey Tax Rebellion in western Pennsylvania. In the long run, however, the whiskey tax and other excises proved to be the Federalists’ undoing. On the basis of popular opposition to these internal; taxes, Jefferson was able to organize a new political party promoting radical republicanism. Joining him was Madison, who switched sides from the Federalist to the Republicans.

The Republicans’ decade-long struggle against the Federalists culminated in Jefferson’s election as president in 1800 and they proceeded to dismantle much of the Federalist state. In particular, they repealed all internal taxes. From then until the Civil War (except for a brief moment during the subsequent War of 1812), the national government’s sole sources of revenue would remain import duties and the sale of public lands.

In short, the Anti-Federalists lost on the ratification question, but they won the question of how the Constitution would operate in practice. The Tenth Amendment symbolized this victory. True, on a purely literal level it did nothing to restrain the national government. But on a deeper, symbolic level, it indicated that the Constitution had not ushered in a consolidated national system of government but a truly federal system. To exaggerate only slightly, the Federalists got their Constitution, but the Anti-Federalists determined how it would be interpreted.

Of course, even an Anti-Federalist interpretation of the Constitution left a central government that was unnecessarily strong. But if, in this bicentennial year, Americans wish to celebrate a document that once limited the power of the state, they should not pay tribute to the so-called Federalists who wrote the document in order to undermine such limitations. They instead should pay tribute to the Anti-Federalist opponents of the Constitution. To the extent that the Constitution ever actually limited the national government, we have only them to thank.

No!

by William Marina

The Constitution as a Resolution of Revolutionary Debates

The interpretation of the constitutional movement as an elitist plot to push through a national government was first voiced by some of its opponents and is still with us today. A corollary of that view is the belief that the Constitution represented a betrayal of the Revolutionary principles of 1776.

Any answer to this question must begin with an examination of just what the Revolutionary principles of 1776 were. The great document of that year was, of course, the Declaration of Independence. That statement, however, was hardly a blueprint for government. Placed at the beginning of a myriad of reasons for separation from Great Britain was the famous passage about self-evident truths such as “that all men are created equal” and that their Creator endowed them with “certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness.” Just what this would mean about the government of this new nation was not self-evident at all.

Despite the belief of some contemporary neoconservatives, among them Irving Kristol, that the American Revolution was different from others. By their very nature revolutions are fought by coalitions, whose elements have a variety of views about the nature of the good society. Sometimes all that unites the revolutionaries is their opposition to the old regime.

Americans of that generation no doubt overwhelmingly agreed with Jefferson about “life” and “liberty,” but we have been contending ever since about the meaning of “created equal.” And as the historian Merrill Jensen has observed, Jefferson “abandoned the traditional formula that the purpose of government was the protection of life, liberty, and property,” substituting instead “the pursuit of happiness,” a much less controversial point. Further, he notes, Jefferson “did not use the word democracy, but others did so.”

One might add that he did not use republican either, which was certainly more consistent with the opposition tradition he represented than was democracy. Quite apart from the fact that his purpose was to declare independence, not to discuss forms of government, including terms such as property would have been divisive to the coalition he was addressing.

Writing in the 1830s, Alexis de Tocqueville observed that equality was the motivating principle of human action in America and would soon extend itself throughout the world. The Declaration of Independence was evidence of its importance in the American Revolution, and it has been the engine of revolutions throughout history. The recurring question in all such revolutions for social change, however, has been whose definition of equality within the coalition would prevail.

\Thus, for example, the Peasants’ Revolt in the late 14th century began as a rather bourgeois protest in the towns of the eastern British nation against increased taxes and wage and price controls, which had been Richard II’s response to the labor shortage and rising wages resulting from the Black Death. The elimination of a few tax collectors was essentially a defense of property rights, hardly a bloodbath to eliminate all social distinctions. It might have been successful if the townspeople had had any real supply of weapons. As that initial protest receded, radical priests roused the peasants in the countryside with a much more egalitarian program, which was not supported by the towns, and the movement was brutally suppressed by the government.

These same differences about what constitutes equality and the nature of the “good society” were evident in the English Revolution almost three centuries later. The revolutionary coalition ranged from conservatives on the right, who hoped to emerge as leaders in a Protestant revolution that would maintain many of the inequalities of the old order; through those libertarian-equalitarians of the middle, curiously described as Levellers because they wished to eliminate social and legal distinctions based on birth; to the religious, communist, egalitarian Diggers and Jesus-men on the extreme left.

Oliver Cromwell first compromised with the right wing of the coalition, and after his death further compromises resulted in a return of the monarchy. Thus was frustrated not only the egalitarianism of the smaller groups on the left, but also the equalitarian views of the much larger group of revolutionaries in the center.

Three decades after Cromwell’s death, the “Glorious Revolution” of 1688 affirmed the ultimate power of Parliament over the king and heralded an almost century-long struggle between “court” and “country,” mirrored by the development of political parties, Tory against Whig. Then as now, two parties were an awkward dichotomy within which to express the variety of contending interests&Mac226; agrarian and mercantile, king and Parliament, established religion and proponents of greater religious freedom, to name a few. John Trenchard and Thomas Gordon’s Cato’s Letters, later so popular in America, opposed the political party jobbery and corruption so characteristic of this period and set the tone for groups opposing royal prerogatives in the emerging colonies.

English preoccupation with revolution in the 17th century, and later a long period of “salutary neglect,” allowed the Americans an unusual degree of economic and political growth and participation compared to the colonies of other nations. Under such circumstances, a large part of the American population came to perceive their rights as Englishmen in terms of a liberal Whig worldview. As recent writers such as J.G.A. Pocock have emphasized, this worldview went back at least as far as Machiavelli and Florentine republicanism.

Indicative of some of the unresolved tensions in this outlook was an agrarian orientation manifested in Jefferson and later Jeffersonian leaders. The extreme wing spoke of “the Agrarian law,” an egalitarian commitment to level society by a radical program of land redistribution in the belief that republican virtue could not exist in an environment characterized by extreme differences between the rich and the poor. While more moderate republicans distrusted such “court” jobbery as the financial manipulation inherent in the creation of the credit structure of the Bank of England, the agrarians, often even moderates such as Jefferson, distrusted not only banking but also commerce and industry.

For the better part of a century, the American colonials disputed the unresolved equalitarian questions of the English Revolution. The meetings of the Revolutionary Congress took place within the context of a continuing debate in America, focused around greater popular representation for both western settlements and emerging urban groups in an increasingly stratified society.

One of the major differences was with respect to property. While some radicals argued for popular political participation regardless of property qualifications, others suggested that the best way to achieve this was to distribute property to those who lacked it. More moderate leaders such as John Adams argued for a balanced republican government that would reflect the several orders of society.

Merrill Jensen, in The American Revolution Within America, is quite right that “serious debate over a central government began at the First Continental Congress in 1774.” The exodus of the Loyalists weakened the elements seeking a “balanced” constitution, and, Jensen notes, “to assume, as has been done, that Americans were a united people in 1776 and dedicated to the establishment of a single form of republican government, is an assumption that is unjustified by the evidence.”

Further, he observes, a writer such as Gordon Wood, in The Creation of the American Republic, 1776-1789, “emphasizes the unity among Americans and virtually ignores the sharp debates in 1775 and 1776 over the nature of the constitutions to be created, and the concern of practical politicians with such matters as suffrage, representation, local self-government, and the balance of power between those elected to office and the voters who elected them.”

The Revolutionary movement was not monolithic. As Thomas Paine’s Common Sense was pushing independence early in 1776, John Adams’s Thoughts on Government was a statement of the balanced government position. The draft for the Articles of Confederation, authored by John Dickinson, gave wide-ranging powers to the Congress. The ensuing discussion, Jensen notes, focused on “issues that Americans continued to debate for decades thereafter, most notably in the [Constitutional] Convention of 1787,” and seven of the members of that Congress attended the later meeting. The Congress deadlocked on the draft of the Articles in the summer of 1776, although it did pass a Declaration, whose wording sought to maximize agreement within the Revolutionary coalition.

In an unstable military situation, Congress had to flee ahead of the British army and did not complete the Articles of Confederation until November of 1777. The Articles were then sent to the state legislatures for ratification. Thomas Burke had altered the Dickinson draft by inserting what became Article Two: 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 [emphasis added].”

Ten years later an attempt was made to add that phrase to what became the Tenth Amendment to the Constitution, but it was defeated. The debate over that small phrase, however, demonstrated two distinctly different conceptions of the proper relationship between the central government and the state governments.

The Articles were not ratified until early in 1781, only after the large states had agreed to renounce their claims to vast tracts of land in the West. Under the exigencies of war, both the Declaration as a philosophy and the Articles as an instrument of government represented minimal positions reflecting the maximum agreement possible in a coalition whose first task was to win the military struggle. Given the deep differences about the nature of government, the debate had only been postponed until a more opportune time.

During 1780, in the darkest days of the war, with the nation ravaged by inflationary paper money, some of the more extreme nationalists in the Congress and the army sought a central government verging on a military dictatorship. George Washington’s unwillingness to accept any such scheme, as well as subsequent American military successes and the signing of a peace treaty, prevented it. Despite the failure of such extremists, more moderate advocates of balanced government wanted to reopen the debate, while even some advocates of the Articles began to realize the need for revision.

There is not space here to detail the many ways in which the military struggle, the new state constitutions, and the subsequent development of state governments changed the nature of American society during and after the war.

The number of Loyalists who fled, most never to return, was a larger percentage of the total population than in almost any of the allegedly more radical modern revolutions. As Forrest McDonald pointed out in a paper some years ago, much of the abandoned Loyalist property was confiscated by the “new” men entering government and the military as avenues for advancement.

Moreover, the turnover of elites in the American polity was far and away greater than in any of the modern revolutions of this century. A study of the Russian Revolution, for example, found that 10 years after the event, the elite turnover was only 50 percent. In the American case, however, only slightly more than 20 percent survived the transition to the new order: the political turnover averaged 77 percent, ranging from 50 percent in some states to 100 percent in others.

In this sense, the American Revolution was perhaps the most radical revolution for which we have any real data. The evidence assembled by James K. Martin in Men in Rebellion: Higher Government Leaders and the Coming of the American Revolution, contrasts starkly with claims by neoconservatives about the conservative and consensus nature of the Revolution.

The importance of this rise of new men was touched on by Adam Smith in The Wealth of Nations, published as the “colonial problem” was heating up. In 1778, while reassessing policy, the British government asked many of its intellectuals what ought to be done about the rebellious colonies. In a letter discovered only in the 1930s, Smith replied that he saw little hope for reconciliation, for the “leading men of America, we may believe, wish to continue to be the principal people in their own country.” The importance of this phenomenon extended throughout all of the 13 colonies, down to the local as well as the national level, and it constituted the single most important factor in the development of Revolutionary society.

We know, for example, that given the lack of literacy, Paine’s Common Sense had to be read to groups of American soldiers. Wood’s Creation of the American Republic describes how some of these illiterates were elected to office in the midst of these social changes and had to have bills read to them before they could vote!

All of this could not but raise questions in the minds of men who believed in the liberal, republican, Whig worldview. The “virtue” that they believed could triumph over “corruption” was based on the concept of the gentleman and an educated yeomanry, not illiterates seeking to use government to secure a place. (A vivid description of this factional fight is found in James Madison’s famous Federalist No. 10, which was perhaps more historical than philosophical.)

This is not to deny that there were some major accomplishments under the Articles, especially considering the war and the subsequent economic recession. It is simply a mistake, however, to suggest that the absence of a stronger central government meant less government. The new men in the state legislatures were legislating with a vengeance! The actions in the states raised great concern among advocates of balanced government. Inflationary paper money, restrictions on trade, and lack of protection for contracts were all distinctly unlibertarian products of legislatures during this period.

To this should be added meddling by foreign governments and the seeming inability of other nations to take the American government seriously. The internal discontent evidenced by Shays’ Rebellion and other lesser disturbances were indicative of the social dislocation of this era. The alternatives were not, as we perceive from a perspective of 200 years, either the Articles, perhaps with some amendments, or the eventual Constitution. Some still thought monarchy or a dictatorship might be necessary. In 1786, for example, no less than the president of the Congress, Nathaniel Gorham, was involved in negotiations with Baron von Steuben to invite Prince Henry of Prussia, the brother of Frederick the Great, to rule in America.

The alternatives facing Americans were described quite accurately by Pennsylvania’s James Wilson at the Constitutional Convention in Philadelphia: “At this period America has it in her power to adopt either of the following modes of government: She may dissolve the individual sovereignty of the States, and become one consolidated empire; she may be divided into thirteen separate, independent and unconnected commonwealths; she may be erected into two or more confederacies; or, lastly, she may become one comprehensive Federal Republic.”

The Constitution and the Bill of Rights, like the Declaration of Independence or Articles of Confederation, consisted of a number of compromises. At least these could be debated and decided upon without the exigencies of war and the need to first develop state constitutions.

Writers as different as Merrill Jensen, an advocate of the Articles with perhaps the need for revision, and Herbert Aptheker, a Marxist who favors the Constitution, agree that the constitutional movement was an effort to protect property in its various forms—land, money, contracts—from the majoritarian state legislatures that were then dominant. In addition, as Aptheker notes, the Constitution guaranteed much greater freedom of religion than the states many of which kept religious qualifications well into the l9th century.

For all its failures, the Constitution remains after 200 years one of the great protectors of property rights in human history. As such, it was not a betrayal of the principles of 1776 as much as an effort to reopen the debate of that period, freed of the pressure of war. It represented a compromise reflecting one version of the idea of a balanced government to protect property rights as essential to the enjoyment of more broadly defined human rights. The Constitution was a balance between monarchy and military despotism on the one hand and extreme majoritarian populism on the other.

From a “what if” perspective, the burden is really on those who argue for the Articles, with perhaps some revision. Adam Smith’s observations, along with the present-day researches of such scholars as James Buchanan and Mancur Olsen, suggest that there was simply no incentive for those new men in the states to concede power willingly to a government at a locus higher than their own. Whatever the corruption and abuse of rights at the national level, throughout our history the worse abuses have been, and remain, at the state and local levels.

The Progressive movement at the turn of the century, for example, was in a way a response to the increasing state economic regulation that was preventing the creation of national markets. To do business on a national scale, you had to buy all of the state legislatures, and the lower you descended, the less likely the politicians were to stay bought.

And does anyone really believe that the southern states would have moved willingly away from slavery and later segregation by law? In addition, the taking of property, whether from zoning or newer environmental “growth management” legislation, is greater at state and local levels than at the national. The great growth of government in the last several decades has been at these levels, not at the federal.

Since the administration of Richard Nixon, there has been an effort to return power to the states. But like the era of the Articles of Confederation, this has meant more government, not less. We now have 50 states competing in a more or less mercantilist struggle for advancement. In my state of Florida, the ex-governor, now Senator Bob Graham, conducted his own foreign policy with Latin America, and legislative committees junket in Asia with the aim of promoting economic development. A growth-management plan initiated in Oregon several years ago was developed by consultants from Florida.

The threat to human liberty and property rights, especially at the state and local levels, is as great now as it was in the 1780s . The preoccupation of so-called conservatives like Ronald Reagan with asserting the power of the United States in the world, and his circumlocutions of the Congress on a scale to rival previous imperial presidencies, remind us that we still lack something by way of “virtue” or an adequate system of checks and balances. Corruption, in the sense that the Founders used the term—as a whoring after power—is still with us.

Yet it is the Constitution that checks this corruption and keeps the politicians from achieving their nefarious ends. The defense the Constitution provides against their tyranny is sufficient reason to celebrate its Bicentennial.


For further articles and studies, please see OnPower.org.
William Marina was a Research Fellow at the Independent Institute in Oakland, Calif., and Professor Emeritus in History at Florida Atlantic University.

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