A Republic, If You Can Keep It

An appreciation of the Constitution’s role in fashioning the American republic must begin with the American Revolution. More precisely, the impetus for the Revolution. The literature of the period yields one overarching theme: self-government.

In the wake of the Seven Years’ War, Great Britain found itself struggling under a massive national debt. Not surprisingly, Britain’s new king, George III, and his ministers looked to the North American colonies to make greater financial contributions and to submit to more imperial oversight. The ministry reasoned that the colonists benefited more than the mother country by territorial gains and the defeat of French and Indian forces in North America.

What the ministry could not calculate was the long-term effect of Sir Robert Walpole’s policy of salutary neglect. As prime minister from 1721 to 1742, Walpole implemented a policy in which Great Britain laxly enforced regulations governing the colonies and encouraged the colonies to be self-sufficient. Walpole believed that so long as the colonies were at peace and governed by local laws ensuring domestic tranquility, the colonials and British merchants would enjoy prosperity. Of course, before Walpole, the British government had encouraged the creation of local representative assemblies. The assemblies were an integral part of colonial government, with the lower houses functioning much like the House of Commons.

Measures such as the Sugar Act, Stamp Act, and Townshend Acts prompted protests. The difficulty behind such protests was the question of how to limit a body claiming unlimited power. Parliamentary sovereignty was a bedrock of the British constitution. Parliament could make or unmake any law as it saw fit.

The colonists ultimately relied on dominion theory, whereby the king was the chief executive of an empire governed by various legislatures—what we might describe as imperial federalism. Consequently, Thomas Jefferson in his influential 1774 pamphlet “Summary View of the Rights of British America” declared sundry acts of Parliament void because “the British parliament has no right to exercise authority over us.” Legislative power in the colonies, Jefferson reasoned, resided in the 13 legislatures. Because of dominion theory, the Declaration of Independence focused primarily on the king’s failure to come to the colonists’ aid as they suffered under acts of Parliament. Parliament barely merited a mention in the Declaration for the simple reason that the colonists had by 1776 rejected all parliamentary authority.

The Articles of Confederation, the first draft of which was presented to Congress just eight days after the adoption of the Declaration, formalized “a firm league of friendship” among the states. Under Article II, “Each state retains its sovereignty, freedom and independence, and every Power, Jurisdiction and right” not expressly delegated to Congress. In the words of historian Samuel Eliot Morison, the Articles “were the best instrument of federal government adopted anywhere up to that time.”

Even so, the Articles were far from perfect. Defects emerged: Congress had no independent revenue source, lacked the requisite authority to regulate commerce, and was unable to assist the states with emergencies, such as Shays’ Rebellion in Massachusetts. These defects led to the Grand Convention in Philadelphia and the Constitution of 1787.

The curing of defects, however, did not mean a departure from the theme of self-government in the 13 states, which molded American revolutionary theory and the Articles. Delegates from the states drafted the new Constitution just 12 years after the Battles of Lexington and Concord—the literal first shots of the Revolution. Hence, the impetus for the Revolution was not obscured by passage of time.

In Federalist No. 45, James Madison asserted, “If the new Constitution be examined with accuracy and candour, it will be found that the changes which it proposes, consists much less in the addition of NEW POWERS to the Union, than in the invigoration of its ORIGINAL POWERS.” An examination of Article IX of the Articles of Confederation bears this out. A cursory reading reveals a list of enumerated powers resembling the more familiar Article I, Section 8 of the Constitution.

Anti-Federalists were suspicious of the Constitution and believed it created a consolidated government. When speaking of “consolidation,” the Revolutionary generation meant the accretion of power into one point or within one entity. For example, one of the Constitution’s framers, Luther Martin of Maryland, argued that Americans were losing “truly federal principles, the bases of which were the thirteen state governments preserved in full force and energy.” Patrick Henry, in a 1788 speech before the Virginia Ratifying Convention, similarly argued that the new Constitution would produce “one great, consolidated national government, of all the people of all the states.”

The friends of the Constitution replied that Congress’ powers were enumerated and primarily dealt with external matters such as foreign commerce and diplomacy. The states retained the bulk of power and most citizens’ interaction with government authority would occur at the state and local levels. “The powers delegated by the proposed Constitution to the federal government are few and defined,” Madison wrote in Federalist No. 45. “Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce.”

As for Henry’s claims that the Constitution would make one amalgamated American people out of the several states, the Constitution’s method of ratification provided otherwise. According to Article VII, “The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same.” That plain language reveals that the people of the several states in separate state conventions would accept or reject the Constitution. “Who are parties to it?” Madison asked at the Virginia ratifying convention. “The people—but not the people as composing one great body; but the people as composing thirteen sovereignties.”

If nine states ratified the document and four rejected it, the four nonratifying states could chart their own courses. Rhode Island and North Carolina were outside the union when the first Congress convened in New York City in March 1789. They were concerned about the lack of a bill of rights and did not join the union until they were assured that amendments were forthcoming.

Based on the method and theory of ratification, the Constitution is a compact (a contract or agreement) among the states. In 1798, the Virginia Resolution affirmed that the federal government “result[ed] from the compact, to which the states are parties” and that Congress was bound by the delegated powers listed in the compact. By states, Virginia meant the people of each state acting in its highest sovereign capacity—not the governments of the states or the states as geographic entities.

Scholars such as Yale’s Akhil Amar concede that the people of the several states ratified the Constitution. Amar contends, however, that the act of ratification was “the world’s largest corporate merger,” which created a single, indissoluble, united people. Amar is a distinguished scholar, but his merger theory would have been declared heretical by citizens living at the time of ratification. Had the friends of the Constitution advertised it as creating a single, indissoluble, united people, the state conventions would have rejected the plan of government.

Indeed, multiple state ratifying conventions declared that the states could resume the powers delegated to the general government. Such declarations would have been futile if resumption required the consent of the amalgamated people as a whole. As John Taylor of Caroline noted in his 1820 book Construction Construed and Constitutions Vindicated, “Not a single one of the United States would have consented to have dissolved its people, to have reunited them into one great people… so ignorant of local circumstances, and so different in local habits.”

Popular sovereignty (i.e., the people holding ultimate authority) is a core principle of republican government.  Writing to Taylor in 1816, Jefferson defined republican government as follows:

We may say with truth and meaning that governments are more or less republican, as they have more or less of the element of popular election and control in their composition; and believing, as I do, that the mass of the citizens is the safest depository of their own rights…

As ultimate sovereigns, the people have the power to erect a government, alter it, and abolish it. Officers of government exercise delegated powers—they are the agents and the people are the principals.

Jefferson also described “the mother principle” of republican government as the government’s embodiment of the will of the people and the execution of that will. This occurs when the people gather in townships and exercise direct democracy. It also occurs when the people choose representatives, and these representatives vote in the sense of their constituents.

Another improvement over the Articles was the Constitution’s creation of three separate departments exercising distinct powers. Political scientist M.J.C. Vile wrote in Constitutionalism and the Separation of Powers,

The doctrine of separation of powers is clearly committed to a view of political liberty, an essential part of which is the restraint of governmental power, and that this can best be achieved by setting up divisions within the government to prevent the concentration of such power in the hands of a single group of men.

The Confederation had no executive branch, and Congress could only create courts to handle certain maritime matters. The Constitution of 1787, in contrast, provided for coordinate legislative, executive, and judicial branches.

As judicial power developed, it challenged traditional assumptions about republican government and the equality of the branches. Judicial review naturally flows from principles of popular sovereignty and was accepted in various state courts long before Marbury v. Madison (1803). Judicial review is the power of courts to examine decisions of another department or level of government. Judicial supremacy, on the other hand, holds that courts are the final arbiters of the Constitution’s meaning. As constitutional commentator Alexander Bickel noted in The Supreme Court and the Idea of Progress, “Analytically, supreme judicial autonomy is not easily reconciled with any theory of political democracy, Madisonian or majoritarian.”

Judicial review exists comfortably in a departmentalist system as advocated by the Jeffersonians. Each branch of the federal government, Jefferson insisted, has an equal right and duty to interpret the Constitution for itself when carrying out its own constitutional tasks. Judicial supremacy, Jefferson believed, would place Americans “under the despotism of an oligarchy.” He further realized that the judges’ “power is the more dangerous as they are in office for life, and not responsible, as the other functionaries are, to the elective control.” The immense power and lack of accountability to the people arguably render a nondepartmentalist federal judiciary an anti-republican branch.

As originally ratified, the Constitution contained no declaration of rights. Staunch Federalists denied one was necessary. James Wilson, for example, argued that bills of rights were proper in state constitutions, in which the people “invested their representatives with every right and authority which they did not in explicit terms reserve.” The federal Constitution, Wilson averred, was different. Absent an express delegation of power, the federal government could not act. “It would have been superfluous and absurd to have stipulated with a federal body of our own creation,” Wilson proclaimed, “that we should enjoy those privileges of which we are not divested, either by the intention or the act that has brought the body into existence.”

Most scholars describe the Anti-Federalist insistence on a bill of rights and the amendments offered to the states as a victory for American liberty. In truth, prior to the Civil War, the only congressional action struck down by the Court on Bill of Rights grounds was Dred Scott v. Sandford (1857)—a decision that receives little acclaim in the academy and legal profession. Starting in the 1920s, the Court began using the 14th Amendment to incorporate provisions of the Bill of Rights against the states. Thus, the Court undermined local self-government by employing the Bill of Rights as a club against the states rather than a shield to protect the states and the people from federal overreach.

Due to this twisting of the Constitution’s original intention, a foreign visitor ignorant of American history and limited to real-time observation would be unlikely to describe “self-government” as the key principle of American constitutionalism. More likely, he would conjecture consumer consumption, debauchery, or victimhood as (apologies to Reggie Jackson) the straws that stir the drink of American government. In its degraded modern condition, our federal republic looks and acts, at best, like a typical European-style unitary state. At worst, it resembles an African kleptocracy or a South American banana republic. The visitor would be hard-pressed to list more than two or three items beyond the control of Washington, D.C.

Loose construction of the Constitution eroded the document’s intended limits on the general government. This started early in our history. For instance, in making the case for a national bank, Alexander Hamilton argued that because the federal government had the power to tax, it could create a financial institution (a joint private-sector and public endeavor) in which to deposit funds. He ignored that the Philadelphia Convention specifically chose not to grant Congress the power to charter corporations and that state-chartered banks could have held funds for the Treasury Department.

Moreover, while it is true that a grant of power is accompanied by those incidents that are necessary for the grant to have effect, Hamilton’s interpretation transformed the idea of necessity into simple convenience. As the great Virginia Judge Spencer Roane wrote in the Richmond Enquirer in 1819,

That man must be a deplorable idiot who does not see that there is no earthly difference between an unlimited grant of power and a grant limited in its terms, but accompanied with unlimited means of carrying it into execution.

Liberal construction became gospel for the Marshall Court, proponents of Henry Clay’s American system, and Abraham Lincoln’s Republican Party. They rejected the American exceptionalism of a federative republic in favor of the power and prestige supposedly enjoyed by European countries. This triumvirate’s loose construction set the stage for the progressive era, the New Deal, the Great Society, Compassionate Conservatism, and our $39 trillion national debt.

On a positive note, American unitary statists have not bothered to repeal our original Constitution and adopt a document better suited to their purposes of expanding national power and diminishing state authority. Consequently, we retain the document the Founders created as our fundamental law. An opportunity still exists to rally around the instrument and insist on the interpretation demanded by St. George Tucker in his 1803 commentary on the U.S. Constitution:

That the powers delegated to the federal government are, in all cases, to receive the most strict construction that the instrument will bear, where the rights of a state or the people, either collectively, or individually, may be drawn into question.