Copyright 2006 by Tad Beckman, Harvey Mudd College, Claremont, CA 91711
Background The colonies were somewhat self-governing in that they had popularly elected legislative bodies, or assemblies; nevertheless, the governors and their councils, who were appointed by the king, could overrule the assemblies. So long as the king remained in power over the colonies, they functioned as independent regimes; however, issues began to develop in the decade from 1765 to 1774. Both king George III and Parliament attempted a number of punitive measures meant to hold the colonies in check; but these served to unify the colonies in ways they had never been united before. Since each colony had a popularly elected assemby, it was a relatively natural step for these bodies to send representatives to participate in a collective assembly. Thus, the First Continental Congress met in Philadelphia for a month in the fall of 1774. This was the first major act of political unification among the colonies and they agreed to convene the Second Continental Congress in the spring of 1775. By the time the Second Congress met, however, the Revolutionary War had already begun and they became the default governing body of the colonial alliance. It was the Second Continental Congress that passed the Declaration of Independence and, later, the Articles of Confederation. The Second Congress continued to meet until ratification of the Articles of Confederation, in March 1781, and was replaced by the Congress of the Confederation, which continued until 1789 when the Constitution was adopted. The Revolutionary War ended shortly after the Articles of Confederation had been adopted and the Congress of the Confederation was left with the task of unifying the young country and paying off its monumental war debts. There were sufficient problems inherent in the workings of the Confederation that the Congress called a convention together in 1787 with the intention that this convention should produce recommendations for improvement of the Confederation. The convention, however, produced a draft of a new Constitution as an alternative to the Confederation. As they say, the rest is history!
Congress placed the Constitution before each of the states for possible ratification; thus, the issues were hotly debated in each state. The Constitution clearly designed a federal government of the states that went far beyond the Confederation. Many people saw significant dangers in this and, indeed, there were well-known political theories that doubted the workability of any sizable democratic republic. Moreover, the suggested executive authority of the federal government looked all too much like a monarchy-in-the-making. We begin our reading with the Anti-Federalists and conclude with the Federalist Papers which were designed to defend the new Constitution and a federal government.
The Anti-Federalists Unlike the Federalist Papers which were written by three men (Hamilton, Jay, and Madison), organized more-or-less in the order of the Constitution itself, and brought to the same audience (the State of New York), the collection of Anti-Federalist papers comes from many different men in different states and different venues. There is, consequently, an unavoidable amount of duplication and lack of organization in them. The best approach is to select a few of the most obvious issues.
One of the principal issues for many critics was the fact that this Constitution united all of the people under a single federal compact in a way that left their home states on uncertain ground. While the issue is a little difficult to understand more than 200 years later, it is clearer when we reflect on the fact that the colonies had functioned quite individually and independently up to the last couple decades when alliance with each other was necessitated by war. Americans saw themselves as consenting to be governed in their individual colonies, turned states. Article I of the Articles of Confederation said, "The style of this confederacy shall be "The United States of America," meaning a confederacy of states. But the Constitution began, "We the people of the United States, in order to form a more perfect union . . . do ordain and establish," which sounds very much like a Lockean compact to consent to a new federal government that bypassed the states. Other aspects of the Constitution made this even more worrisome since the residual powers of the states were not well articulated and the ambiguous powers of the new federal legislature made it difficult to see what powers the states might retain. There were a number of reasons why Anti-Federalists feared the loss of state power, but one of the most general problems, from their point of view, was the extent of the proposed federal government. It was commonly argued at the time that democratic liberties could be retained only in small commonwealths. Even some of the larger states were beginning to look too large for their own good. The federal compact threatened the practicality of self-government by its great size.
Along the same lines, Anti-Federalists frequently pointed out that the Constitution had no provision for guaranteeing civil rights to its new citizens. These rights were already typically enjoyed in the states through state constitutions, but this left rights against federal power in doubt. An excellent account of these rights is offered by the Minority Report of the Pennsylvania Convention (pp. 8-10 in the Wootton edition). Their constant pressure regarding this issue was probably the single greatest success of the Anti-Federalists since adoption of the first ten amendments (The Bill of Rights) was made a condition of passing the Constitution.
Of equal importance, perhaps, was the formula for representation. Next to the act of consenting to civil society, according to Locke, was the formation of a legislative authority that would be responsible for the interpretation of natural law into standing laws. The relationship between a free people and its representatives should be sufficiently intimate that one can reasonably say the people are "authors" of the laws under which they are expected to live. [Note, for instance, the formula given by Melancton Smith (p. 50): "The idea that naturally suggests itself to our minds, when we speak of representatives is, that they resemble those they represent; they should be a true picture of the people; possess a knowledge of their circumstances and their wants; sympathize in all their distresses, and be disposed to seek their true interests."] In the individual states this intimacy could be established to a limited degree; but the narrowing of representation involved in the federal legislative bodies looked seriously threatening to these principles. Not only was a single member of the House to represent a very large number of people from a given state, but the senators would not even be chosen directly by the people of the state. [Election of the President and Vice President was through a similar process, eventually called the Electoral College, still in effect and only vaguely attached to a popular electoral process.] Furthermore, as some argued, a highly limited legislative body would probably mean that only the wealthy and well disposed citizens would be elected to office. These representatives, by their very nature, would be out-of-touch with ordinary people and their problems. Being wealthy they might become spendthrifts for the people's money. This might ultimately lead to an oppressive government of the few.
Strongly related to the relative powers of the federal government and the states, were a number of issues regarding federal powers and especially the powers of the Congress. As observed by the Minority from the Pennsylvania Convention (p. 12), "By virtue of their power of taxation, Congress may command the whole, or any part of the property of the people . . . in short, every species of taxation, whether of an external or internal nature is comprised in section the 8th of article the 1st." This unbounded power of taxation could ultimately wipe out the state governments. Another concern, voiced by George Mason (p. 2), was that "by declaring all treaties supreme Laws of the Land, the Executive and the Senate have in many Cases, an exclusive Power of Legislation" even though neither is popularly elected nor directly answerable to the people. [Even in our own time, it has been observed that many American laws dealing with environmental issues can no longer be effectively enforced because of agreements like NAFTA.] There was also considerable fear over the President's power to make war and especially to activate and use, for federal purposes, the state militias. As Patrick Henry said (p. 37), "If your American chief be a man of ambition and abilities, how easy it is for him to render himself absolute: The army is in his hands." These are all issues that remained unresolved in the Constitution, as passed, and have plagued American politics ever since.
Perhaps no institution in the new regime was more ambiguous and left more open questions than the Supreme Court. Brutus devoted his entire 15th essay to the Court. "There is no power above them, to control any of their decisions. There is no authority that can remove them, and they cannot be controlled by the laws of the legislature. In short, they are independent of the people, of the legislature, and of every power under heaven." (p. 93) What Brutus perceived in particular was their power to judge the Constitutionality of any law passed by the legislative branch. Thus, in contradiction of Locke's principles, the Supreme Court was not only superior to the legislature but also uncontrollable by the people. Issues surrounding the Court have surfaced often in the 200 years since the Constitution was adopted.
Overall, the new Constitution seemed to award extensive powers and fail to provide sufficient checks and balances. As Patrick Henry said (p. 37), "Show me the age and country where the rights and liberties of the people were placed on the sole chance of their rulers being good men, without a consequent loss of liberty." The great fear of the Anti-Federalists was that the new Constitution was an open invitation to a despotic monarchy or aristocracy, at the very least.
The Federalist Papers As suggested above, these essays were well organized and argued specific issues in defense of the proposed Constitution. The authors were Hamilton, Jay, and Madison though they wrote under the name "Publius" which not only enabled them to disguise multiple authorship but also saved them from any criticism in terms of their personal interests. While they attempted to act "disinterested" they were very much involved in arguing for the federal Constitution. We can take them in their order.
The first two papers, authored by Hamilton, are introductory; but the second argues a position that is quite surprising and can be compared to the remarks of the Minority from the Pennsylvania Convention. Hamilton argues that the position taken by Anti-Federalists for independent states and against a unified federal government is a "new doctrine" only recently put forward out of fear. This seems remarkable, given the fact that the colonies had been in separate existence for such a long time and had unified only recently to fight the Revolutionary War against England.
No. 9 is an interesting response to the Anti-Federalists who refer to Montesquieu's recommendation of very small republics and his conclusion that large republics can only lead to decline into despotism. Hamilton quotes at length from Montesquieu to demonstrate two points. First, Montesquieu's "small republics" were smaller than most of the states anyway. And, second, Montesquieu seemed to hold large confederate republics in higher esteem. As noted before, Montesquieu loomed in importance in these arguments because he was the contemporary theorist most widely read in America.
Paper No. 10 is a famous argument regarding factionalism authored by Madison. A faction, according to Madison, is a group of citizens who are united by some special interest or passion which is either adverse to the rights of other citizens or contrary to the common good. Madison suggests that one must either remove the causes of faction or avoid their effects. Unfortunately, the causes are all too common and impossible to remove without destroying liberty in the process. How, then, can the effects of factionalism be minimized? If the faction represents a minority, the matter is solved by simple majority rule. The problem lies in the existence of a faction that represents a majority. Madison claims that a republic is superior in its ability to minimize the effects of factions in two ways. First, because the people are represented by a small number of elected individuals, those individuals, he proposes, will have the common good better in view and will resist factionalism. Second, Madison suggests that the larger the sphere of the republic the greater will be the variety of interests, party affiliations, and other factors that will make factionalism more difficult.
In No. 14, Madison goes on to meet the criticisms of those who suspect the size of the republic. While democracies are limited by the distance required to bring the whole of the citizens together, republics are limited only by the distance required to bring a small number of representatives together periodically. Madison's calculations suggest that the dimensions of the United States do not pose a problem in this regard. Furthermore, it is not the case that these representatives will need to come together to solve local difficulties quickly since their province will be very general issues relating to the union as a whole. The states will remain for solving local issues. The federal government will also not only secure unification of the existing states but it will provide a framework in which other states will enter. Another advantage, pointed out by Madison, is the fact that the federal government will provide for development of infrastructure --- roads, canals, etc --- that will benefit all. Finally, while the most remote states may feel that they are most vulnerable in being represented, they will receive a larger share in the benefits since they will be secured against foreign invasion from outside the union.
In No.s 15, 16, and 23, Hamilton returns to the scene. What is wrong with the present Confederacy? On pp. 184-5 he offers a stunning list of the "melancholy situation." Furthermore, the reason for these weaknesses is clearly, according to Hamilton, the fact that the Confederacy operates on the states as collective entities and not upon the individual citizens themselves. Thus, all legislation at the level of general government awaits execution by the states. Strong, effective government demands direct authority over the people, unincumbered by intermediate authorities. In the present situation, indeed, the only recourse existing, when states refuse to execute general laws, is destabilization of the Confederacy or even civil war. All of this is made worse by the probable fact that recalcitrant states would probably ban together or even appeal to the support of external countries. In short, according to Hamilton, the power of an effective general government must be substantial and must apply directly to individuals so as to avoid the threat of civil war and dissolution every time a state or states hold back. In No. 23, Hamilton offers (p. 195) an interesting summary of the powers that ought to belong to the federal government. These are the common defense, preservation of public peace and prevention of internal strife, regulation of commerce between the states and with foreign nations, and representation of our national interests in the world. He argues persuasively that these can only be achieved by a strong national government that is unhindered by state intervention.
Madison resumes as author in No.s 37 and 39. After carefully articulating the numerous problems that any body of men, like the Constitutional Convention, must necessarily have encountered, Madison offers (pp. 221-2) an important statement about "republican liberty." Essentially, not only should all power be derived from the people but all who hold trust in the government of the people should remain dependent upon the will of the people. In this respect, dependence and stability must be balanced in order to achieve an effective government. But much of the argument is not over the issue of republican government but rather over the issue of federal versus national government. Madison carefully sorts through all aspects of the proposed government, from ratification onward, and identifies parts that are federal as well as parts that are national. All in all, "the proposed Constitution . . . is in strictness neither a national nor a federal constitution; but a composition of both."
Madison attacks an extremely important and subtle issue in a succession of papers --- No.s 47, 48, 49, and 51. The issue is what we have come to call "checks and balances." One of the complaints voiced by members of the Anti-Federalist group was that the various branches of government were mixed in such a way that might lead to a collapse into a despotic single bulk of power. Madison's argument takes various tacks, both historical and theoretical, to suggest that some mixing of powers is, in fact, essential to maintaining strong separation between the branches of government. Madison suggests that, in fact, it is the legislative branch that seems most dangerous, given its extensive powers of writing laws and its powers of taxation. He considers two possible solutions to the problem. One, suggested by Jefferson, calls for periodic conventions to which the country might take issues that seem to threaten the new government. There are some obvious problems with this method. First, every crisis would disturb the public tranquility and stir up passions. Second, such conventions would inevitably be manned by the same people who had created the crisis. And, third, decisions would likely be made on passionate grounds rather than the grounds of reason and fairness.
Madison's solution to the problem is to provide for this within the internal structure of government rather than to effectively require government to come to a halt every time equilibrium is threatened. "The great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department, the necessary constitutional means, and personal motives, to resist encroachments of others." This leads to one of the most famous of Madison's statements: "If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: You must first enable the government to control the governed; and, in the next place, oblige it to control itself." (pp. 246-7)
No.s 62 and 63 deal with the Senate and meet the Anti-Federalist argumentsthat suggest such a body will lead the country toward an aristocracy. As usual, Madison's arguments are extensive, well organized, and insightful. One of the more interesting observations is that the election of the Senate, coming as it does from the state legislatures (changed by amendment 17 in 1912), will continue the sense of state sovereignty, as opposed to the claim that the federal government will crush the states. It is also suggested that the Senators will be more experienced and respected members of the country so that they will make the government more respected and reliable in the world as a whole. It is interesting to explore these arguments in the context of today's world.
In the final readings, Hamilton returns with his frequently passionate arguments. The subject of No. 70 is the executive power and, in particular, the energy with which the executive can pursue his tasks. One of the most important points of his argument is for unity of the executive and, hence, against multiplication of officers. This is aimed primarily at the Anti-Federalists who demanded an executive council. Hamilton argues that laws need to be executed promptly and that, especially in matters of foreign policy or war, the executive authority needs to be able to act swiftly. Multiplicity of officers in the executive branch can only lead to differences of opinion and stagnation. Also, such pluralities tend to hide issues of responsibility.
In the final substantial analysis, also by Hamilton, the role of the judicial department is explored. The chief issues here are the manner of appointment and the terms of the appointments (namely "good behavior"). The problem is that the judiciary must serve as a mature, reasoning body that remains quite independent of either the legislative or executive branches and that has the capacity to keep government within the rightful limits of the Constitution. "The Constitution . . . must be regarded as a fundamental law. It therefore belongs to them to ascertain its meaning as well as the meaning of any particular act proceeding from the legislative body." (p. 285)
Updated on February 23, 2006; click here to return to My HomePage or here to return to Course Index Page.