The Constitutional Republicanism of John Taylor of Caroline

BY JOSEPH R. STROMBERG

“Great power often corrupts virtue; it invariably Raised in the home of his uncle Edmund Pendle- renders vice more malignant. ...In proportion as ton, John Taylor (1753–1824) attended The College of the powers of government increase, both its own William and Mary, studied law, served as a major in the character and that of the people becomes worse.” Continental Army, and became a successful lawyer —John Taylor of Caroline, 1814 and planter, owning several plantations and 150 slaves. He preferred his rural life, but entered politics to ohn Taylor of Caroline has a secure place in the his- defend republican values, serving in the legisla- tory of American political thought. Charles Beard’s ture (1779–81, 1783–85, 1796–1800) and filling out Jhistorical writing did much to revive Taylor’s unexpired terms in the U.S. Senate (1793–1794, reputation in the early twentieth 1803, 1822–24). Taylor was clearly no century. Eugene T. Mudge saw archaic-radical republican like Jean- Taylor as a “prophet” of sectional Taylor began as an Jacques Rousseau. He did not find struggle, while English historian “Anti-federalist.” freedom in political participation as M. J. C. Vile saw him as “in some such, but he would step forward in a ways the most impressive political Once the crisis, as his sponsorship of the Vir- theorist that America has produced.” Constitution won ginia Resolutions, damning the Alien New Left historian William Apple- and Sedition Acts, shows. man Williams thought Taylor ratification, he meant Taylor began as an “Anti-federalist.” “made the best case against empire to hold the victors Once the Constitution won ratification, as a way of life.” he meant to hold the victors to the Other historians are dismissive. to the assurances assurances they gave while promot- Louis Hartz chided Taylor for failing ing it. Generally, Taylor’s books (1814, to become the American Disraeli, they gave while 1818, 1822, 1823) arose from imme- and Richard Hofstadter called him promoting it. diate political questions; they included “a provincial windbag.” For Hof- attacks on federal economic policies stadter, Taylor’s Jeffersonian ideas and reasoned polemics against the were “negative” and “laissez faire,” ending as mere con- centralizing decisions of ’s Supreme servatism in the hands of “men like William Graham Court. A book by Taylor levels much learning and Sumner.” Manning Dauer saw Taylor as—paradoxi- colorful language against pressing issues, in the manner cally—the father of both Southern Agrarians and of Jeremiah. “states’ rights industrialists.” There are some awkward moments in Taylor’s liter- Despite the attention given Taylor over the years, he ary style, as Adams, Jefferson, and John Randolph all remains (in my view) somewhat neglected, relative to his actual merits. Joseph Stromberg ([email protected]) is a historian and freelance writer.

35 MAY 2008 Joseph R. Stromberg noted, but there are also interesting compression and For Taylor, the laws of nature suggested political apt expression. Taylor was a secular preacher. Like equality instead of the fixed social orders found in John William Faulkner, he is sometimes better understood Adams’ archaic republicanism. Popular sovereignty when read aloud. He is also a stepfather of semantics “flows out of each man’s right to govern himself.” and semiotics, as his running critique of “artificial Similarly,Taylor traces the right of free speech directly phraseology,” or counterfeit language, shows. He was to the right of self-government, which presupposes not an especially successful politician.Taylor served the open discussion. public better as a critic. On solidly liberal ground,Taylor sees human nature Here I must at least mention the Forty-Years War as “compounded of good and evil qualities.” Men between historians of the Republican School and the should frame governments “with a view to the preser- Liberal-Lockean School over early American ideology. vation of the good and the control of the evil.” Self- For J. G. A. Pocock, classical republican themes—court interest was the only real constant in human affairs, and versus country, the mixed constitution, balanced social bad structural incentives might make governments orders, “virtuous” agrarian landowners—dominated “vicious.” Suitable structures would “secure the fidelity revolutionary thinking. The Lockeans have Americans of nations to themselves,” even if the people were indi- abandoning those in favor of abstract individualism and vidually “vicious.” Here Taylor broke decisively with natural rights. But the two political archaic-republican “virtue,” mixed “languages” co-existed throughout the constitutions, and social balance. Revolutionary era. What matters is Perhaps the worst Americans had chosen to divide their exact “mix.” Taylor, for one, tragedy that can befall rather than “balance” power, and in employs republican language within a so many ways—vertically (federally) liberal framework. an ideology is to have and horizontally (departmentally)— a political party as to prevent serious abuse. Beginnings of Centralization Protecting men’s lives, liberty, ot long after independence, cen- professing allegiance and rightful property was the pur- Ntralizing Federalists replaced the pose of government. Articles of Confederation with a con- to it come to power. The goal of “political law” (the stitution (1788) aimed at creating a Constitution) was control over all rep- mercantilist political economy. Their opponents coa- resentatives and agents.Taylor hails election, divisions of lesced as “Republicans,” broadly continuing the Anti- power, and an armed people (militia) as among the federalist cause. Federalist-Republican debates over the means to republican liberty. “Oaths of agents,” he National Bank, excises, public debt, standing army, and observes, “are prescribed to enforce, not to destroy, the tariffs echoed English debates after 1688. duties of agency.” Taylor’s overall conception thus far Perhaps the worst tragedy that can befall an ideology surpasses any tame notions of “checks and balances” or is to have a political party professing allegiance to it “separation of powers.” come to power. (Think of “conservatism” today.) So it Taylor frowned on notions of absolute sovereignty. partly was after 1800, with Jeffersonian republicanism Where he does use the word, he is normally referring in power. Taylor defended Jefferson’s measures into to self-government, which results from men’s living 1804, but gradually drifted into the “Quid” opposition together in a community.He does not explain commu- movement within Republican ranks. He railed against nity as arising by conventional social contract; indeed, the administration’s half-Federalist policies. Along with he tends to reject his contemporaries’ half-digested and a few other Republi- Lockeanism, thereby postponing any final surrender of cans, he opposed the —his own party’s natural rights. (Here he comes close to Thomas Paine.) war—as a “metaphysical war.” He rightly feared its There was, however, an actual contract—the Constitu- potential for state-building. tion—creating a limited union with a common agent

THE FREEMAN: Ideas on Liberty 36 The Constitutional Republicanism of John Taylor of Caroline subjected to structural, procedural, and substantive Court imported consolidation into the Constitution. restraints on its power. This contract was between the Finally, the Court would assert “an immoveable power peoples of the several states, not between the members of construction” over the Constitution, over the other of a single, aggregate American people as individuals. branches, and over the people. The constitutional agreement “derives its force, not from the consent of a majority of the states, but from the Republicanism and Nationalism separate consent of each” (italics supplied). aylor’s states-rights republicanism necessarily Taylor denied the common assertion that the peo- Tcollided with the intermittently nationalist views ple, “having thought and spoken once, had lost the of . Taylor was trying to unravel the right of thinking and speaking forever.” If so, “its first knots Madison tied while confusing different audi- will, must be its last will”—something Taylor found ences and, finally, himself. Taylor questioned Madi- absurd. If, for example, the states should call a conven- son’s claim in Federalist 10 that a republic must be tion and approve a constitutional amendment previ- geographically extensive—and even expand farther— ously blocked in the Senate,“any one state may refuse to prevent “factious” instability. Taylor viewed expan- to concur in [it], because each state will sion as unwise, where it might undermine liberty resume its original right to refuse or con- through war, armies, debt, and sent, as being independent of each Taylor denied the taxes. And he had little awe of the other in negociating the terms of a new Federalist Papers: “The English union” (italics supplied). Implicit here is common assertion writers . . . contain whatever is to renegotiation of the agreement—and that the people, be found in the Federalist; but all even secession in an extreme case. Any their theories sunk, as soon as they other conclusion conflicted with out- “having thought were promulgated; in a vortex of standing historical facts, as Taylor saw and spoken once, corruption. . . .” them. Republican adoptions of Feder- Taylor observes that no governments had lost the right alist policies were many and galling. —federal or state—could, in their status Even worse, Federalists remained as subordinate agents, dissolve the union of thinking and entrenched as federal judges and on their own. (The constituent peoples speaking forever.” appointments by Republican presi- could.) And Taylor was so far from dents had not changed this.Taylor’s being a positive “disunionist” that, in Construction Construed and Constitu- describing the geographical advantages of the United tions Vindicated (1820) targeted John Marshall’s decision States, he attributed Americans’ safety to their main- in McCulloch v. Maryland (1819) with its mighty asser- taining a union of some kind. But he was not an uncon- tions of federal power.“The unknown powers of sover- ditional unionist. eignty and supremacy may be relished,” Taylor writes, Taylor always tried to bracket sovereignty. He sup- “because they tickle the mind with hopes and fears.” posed the states to possess full concurrent jurisdiction Further, “the term ‘sovereignty,’ was sacrilegiously with the federal government, except where one or the stolen from the attributes of God, and impiously other clearly had an exclusive delegation of power. He assumed by Kings.” Later, “aristocracies and republicks denied that the Supreme Court’s reasoning necessarily . . . claimed the spoil.” bound the state courts; decisions applied at most Sovereignty being “neither fiduciary nor capable of between the parties to a case. Taylor thought an occa- limitation,” Taylor wished to neutralize the concept. sional inconsistency of outcome preferable to letting Americans had tried “to eradicate it by establishing the Supreme Court remodel all of American law. To governments invested with specified and limited pow- concede final interpretive power to the Court would ers,” so that “ungranted rights remain also with the transfer sovereignty to the general government, as the grantors . . . the people.” (Alas, the principle that rights

37 MAY 2008 Joseph R. Stromberg or powers “not granted” are not granted failed to impress checks upon each other, only invested with defined and either Marshall or Harvard Law School.) limited powers, and subjected to the . . . controul of the Marshall’s decision turned allegedly “necessary and people.” The Court’s sphere-sovereignty dogma over- proper” means into actual unenumerated powers.Taylor threw this distribution of powers, because a “power able recalled the 1760s, when Parliament asserted “it would to abolish collisions, is also able to abolish checks, and be absurd to allow powers, and with-hold any means there can be no checks without collisions.” In America necessary or proper.” The colonies found it “more we “have preferred checks and collisions, to a dictator- absurd to limit powers, and yet concede unlimited ship of one department.” Congress and the states might means for their execution.” The principle made the pass laws, each one constitutional, which “impede each Constitution’s list of powers superfluous. Following other....For this clashing the constitution makes no Marshall, “[E]nds may be made to beget means” and provision.” (Taylor’s view thus differs greatly from the “means . . . made to beget ends, until the co-habitation highly artificial “separation of powers” espoused by shall rear a progeny of unconstitutional bastards, which “conservative” unitary-executive theorists working for were not begotten by the people.” the Bush administration.) Roads being “necessary in war,” Having asserted Congress’s right Congress could “legislate locally con- Americans supposed to “remove all obstacles to its action,” cerning roads.” Congressional power the Court pretended to “hook every over horses—and everything else— their governments to implied [power], to some delegated would soon follow. be their agents, not power” as a means. (Even today, a Taylor believed that Americans had massive regulatory state subsists never knowingly adopted that Euro- their rulers. Lately, under the Commerce Clause, while pean conception of absolute, unitary however, American global military enterprises masquer- sovereignty, which licensed Marshall’s ade as simple “defense.”) Taylor did centralizing deductions. Americans legislatures—state not buy the argument. supposed their governments to be and federal—were Deductions from the interna- their agents, not their rulers. Lately, tional lawyers’ sovereignty-construct however, American legislatures—state aspiring to be intruded into war and peace. Our and federal—were aspiring to be system, Taylor writes, provided the “British parliaments,” and if the trend “British parliaments.” necessary “powers of making war and held, one must conclude that in Amer- peace . . . not as emanations from . . . ican government, “no experiment at all has been sovereignty . . . but as delegated powers conferred by made.” the social sovereignty, or natural right of self-govern- Marshall made much of the supremacy, superiority, ment.” Otherwise, “the federal government, as having and so on of Congress in its proper sphere of action. no sovereignty,” could not have declared war. That Taylor answers,“If the sovereignty of the spheres means international law and lawyers “contemplate the powers any sovereignty at all, it supersedes the sovereignty of of declaring war and making peace, as residing”— the people.” The problem was not spheres, but sover- inherently—“in an executive department” meant noth- eignty in them. Powers might exist, certainly, but granted ing to us; the American system divided the powers and by principals to agents. No one had “inherent” powers. “does not intrust the president with either.” So the question was “whether these laws of nations Sphere-Sovereignty Dogma or our constitutions have delegated powers to our aylor preferred the “occasional collisions” arising political departments.” If the former, the game was up, Tfrom concurrent jurisdictions. Instead of creating Marshall could go on deducing, and power would various institutions, each supreme in a sphere, our system not—and could not—be limited. Interestingly,Taylor’s featured “co-ordinate political departments . . . as line of attack on these questions supplied materials for

THE FREEMAN: Ideas on Liberty 38 The Constitutional Republicanism of John Taylor of Caroline refuting United States v. Curtiss-Wright (1936) 114 years should have been counted in the catalogue of the before the Supreme Court issued those latter-day [executive], except for the efficacy of these powers in deductions about “inherent” executive powers over for- one man for begetting tyranny.” (He has elsewhere eign affairs and war. denied real textual, constitutional authority for exclu- Even with all these new, constructively discovered sive presidential power over war and peace.) means and powers about,Americans remained compla- cent, safe in the knowledge that their officials were More Power to the President elective and responsible. For Taylor, representation and he treaty and appointment powers add to the pres- elections did not, by themselves, provide security Tident’s political weaponry; and to his already against abuses of power. If elected officials managed to excessive military power “is subjoined a mass of civil escape their bounds, then we would once again see power,”as well as patronage. Election “procures a confi- that “no experiment . . . has been made.”As a mere slo- dence which has no foundation.” gan, “popular sovereignty” meant nothing to Taylor, The treaty power has long been prized and feared as and he foresaw the probable failure of republicanism a source of new, unknowable federal powers. As late as if Americans adopted European sovereignty as its legal the mid-1950s, the Old Right movement sought to basis. Indeed, “a sovereign power over labour or prop- define and curtail that power through the Bricker erty is less oppressive in the hands of an absolute Amendment. It took all the Eisenhower administra- monarch, than in those of a representative legislature” tion’s leverage to defeat the proposal in Congress. and “the error of trusting republican governments Under the Constitution, properly understood, Taylor with this tyrannical power, has probably caused their finds no magic in the words making treaties part of the premature deaths, because they are most likely to push supreme law of the land. “On the contrary,” he notes, it to excess.” “the laws were to be made in pursuance of the consti- A government outfitted with “the complete panoply tution, and the treaties, under the authority of the of fleets, armies, banks, funding systems, pensions, United States.” And now he springs his trap: “The bounties, corporations, exclusive privileges; and in United States have no authority, except that which is short, possessing the absolute power to distribute prop- given by the constitution” (italics supplied). erty,” was effectively “unrestrained” and tyrannical— It followed that treaties could not alter or overthrow and therefore not a republic in Taylor’s meaning. the Constitution. He gives an example: “Suppose the (Taylor has much to say about power distributing prop- treaty-making power should stipulate with England to erty, but I intend to treat that topic in another place.) declare war against France; would that deprive congress As party leader, aggregator, aider and abettor of fac- of the right of preserving peace, with which it is tions, would-be war hero, and more, the president of invested by the constitution?” Presumably not, unless the United States, whoever he might be, spearheaded we must once more endure theories of inherency and the political evolution deplored by Taylor. As Taylor sovereignty under international juridical deductivism. writes, the American executive was so constructed as James Madison,“father of the Constitution,”thought “to excite evil moral qualities . . . propelling us toward an extensive and expanding union would “dilute fac- force and fraud.” His exclusive control of military tion” and preserve liberty under an American mercan- patronage, and its extension during war, inclined the tilism. Tying liberty to territorial expansion, Madison president to initiate war. And now we understand Tay- imposed an imperial logic on the Constitution he lor’s commitment to a genuine, revitalized militia sys- helped create.Taylor, spying the state-building possibil- tem; he wanted it for practical, political—even ities of that program, came to oppose it.“A protector is liberal—reasons, and not out of an attachment to Greek, unexceptionally a master,” he noted. Almost two cen- Roman, or Renaissance Italian republicanism. turies later, under another “Republican” regime betray- Taylor can find no “reason why war, peace, appoint- ing principles it never had, we may wonder who was ments to office, or the dispensation of publick money, the better prophet over all—Madison or Taylor?

39 MAY 2008