UVU-OXFORD STUDY ABROAD PROGRAMME

FOUNDATIONS OF AMERICAN CONSTITUTIONALISM THE ANTI-FEDERALISTS Contents The Anti-Federalists Brutus I The Anti-Federalists ...... 1 Brutus I ...... 1 When the public is called to investigate and decide upon a question in which not only the present members of the community are deeply interested, but upon Brutus IV ...... 7 which the happiness and misery of generations yet unborn is in great measure suspended, the benevolent mind cannot help feeling itself peculiarly interested Brutus X ...... 10 in the result. Centinel I ...... 13 Federal Farmer I ...... 18 In this situation, I trust the feeble efforts of an individual, to lead the minds of the people to a wise and prudent determination, cannot fail of being acceptable Federal Farmer II ...... 22 to the candid and dispassionate part of the community. Encouraged by this Cato V ...... 25 consideration, I have been induced to offer my thoughts upon the present important crisis of our public affairs. The Virginia Plan ...... 27 The New Jersey Plan ...... 29 Perhaps this country never saw so critical a period in their political concerns. We have felt the feebleness of the ties by which these United States are held ‘Democracy and the Constitution’ Gordon S. Wood in How together, and the want of sufficient energy in our present confederation, to Democratic is the Constitution? Ed. William Schambra and Robert manage, in some instances, our general concerns. Various expedients have been Goldwin ...... 30 proposed to remedy these evils, but none have succeeded. At length a Convention of the states has been assembled, they have formed a constitution ‘Democracy and the Citizen: Community, Dignity, and the Crisis of which will now, probably, be submitted to the people to ratify or reject, who are Contemporary Politics in America’ in How Democratic is the the fountain of all power, to whom alone it of right belongs to make or unmake Constitution? Ed. William Schambra and Robert Goldwin ...... 39 constitutions, or forms of government, at their pleasure. The most important question that was ever proposed to your decision, or to the decision of any people under heaven, is before you, and you are to decide upon it by men of your own election, chosen specially for this purpose. If the constitution, offered to [your acceptance], be a wise one, calculated to preserve the invaluable blessings of liberty, to secure the inestimable rights of mankind, and promote human happiness, then, if you accept it, you will lay a lasting foundation of happiness for millions yet unborn; generations to come will rise up and call you blessed. You may rejoice in the prospects of this vast extended continent becoming filled with freemen, who will assert the dignity of human nature. You

may solace yourselves with the idea, that society, in this favored land, will fast

1 advance to the highest point of perfection; the human mind will expand in execute any one power vested in the general government, and that the knowledge and virtue, and the golden age be, in some measure, realized. But if, constitution and laws of every state are nullified and declared void, so far as they on the other hand, this form of government contains principles that will lead to are or shall be inconsistent with this constitution, or the laws made in pursuance the subversion of liberty — if it tends to establish a despotism, or, what is worse, of it, or with treaties made under the authority of the United States. — The a tyrannic aristocracy; then, if you adopt it, this only remaining asylum for liberty government then, so far as it extends, is a complete one, and not a will be [shut] up, and posterity will execrate your memory. . . . confederation. It is as much one complete government as that of New-York or Massachusetts, has as absolute and perfect powers to make and execute all laws, to appoint officers, institute courts, declare offences, and annex penalties, with With these few introductory remarks I shall proceed to a consideration of this respect to every object to which it extends, as any other in the world. So far constitution: therefore as its powers reach, all ideas of confederation are given up and lost. It is true this government is limited to certain objects, or to speak more properly, The first question that presents itself on the subject is, whether a confederated some small degree of power is still left to the states, but a little attention to the government be the best for the United States or not? Or in other words, whether powers vested in the general government, will convince every candid man, that if the thirteen United States should be reduced to one great republic, governed by it is capable of being executed, all that is reserved for the individual states must one legislature, and under the direction of one executive and judicial; or whether very soon be annihilated, except so far as they are barely necessary to the they should continue thirteen confederated republics, under the direction and organization of the general government. The powers of the general legislature control of a supreme federal head for certain defined national purposes only? extend to every case that is of the least importance — there is nothing valuable to human nature, nothing dear to freemen, but what is within its power. It has authority to make laws which will affect the lives, the liberty, and property of This inquiry is important, because, although the government reported by the every man in the United States; nor can the constitution or laws of any state, in convention does not go to a perfect and entire consolidation, yet it approaches any way prevent or impede the full and complete execution of every power so near to it, that it must, if executed, certainly and infallibly terminate in it. given. The legislative power is competent to lay taxes, duties, imposts, and excises; — there is no limitation to this power, unless it be said that the clause This government is to possess absolute and uncontrollable power, legislative, which directs the use to which those taxes, and duties shall be applied, may be executive and judicial, with respect to every object to which it extends, for by the said to be a limitation; but this is no restriction of the power at all, for by this last clause of section 8th, article 1st, it is declared “that the Congress shall have clause they are to be applied to pay the debts and provide for the common power to make all laws which shall be necessary and proper for carrying into defense and general welfare of the United States; but the legislature have execution the foregoing powers, and all other powers vested by this constitution, authority to contract debts at their discretion; they are the sole judges of what is in the government of the United States; or in any department or office thereof.” necessary to provide for the common defense, and they only are to determine And by the 6th article, it is declared “that this constitution, and the laws of the what is for the general welfare: this power therefore is neither more nor less, United States, which shall be made in pursuance thereof, and the treaties made, than a power to lay and collect taxes, imposts, and excises, at their pleasure; not or which shall be made, under the authority of the United States, shall be the only the power to lay taxes unlimited, as to the amount they may require, but it supreme law of the land; and the judges in every state shall be bound thereby, is perfect and absolute to raise them in any mode they please. No state any thing in the constitution, or law of any state to the contrary legislature, or any power in the state governments, have any more to do in notwithstanding.” It appears from these articles that there is no need of any carrying this into effect, than the authority of one state has to do with that of intervention of the state governments, between the Congress and the people, to another. In the business therefore of laying and collecting taxes, the idea of

2 confederation is totally lost, and that of one entire republic is embraced. It is state courts. These courts will be, in themselves, totally independent of the proper here to remark, that the authority to lay and collect taxes is the most states, deriving their authority from the United States, and receiving from them important of any power that can be granted; it connects with it almost all other fixed salaries; and in the course of human events it is to be expected, that they powers, or at least will in process of time draw all other after it; it is the great will swallow up all the powers of the courts in the respective states. mean of protection, security, and defense, in a good government, and the great engine of oppression and tyranny in a bad one. This cannot fail of being the case, How far the clause in the 8th section of the 1st article may operate to do away all if we consider the contracted limits which are set by this constitution, to the late idea of confederated states, and to effect an entire consolidation of the whole governments, on this article of raising money. No state can emit paper money — into one general government, it is impossible to say. The powers given by this lay any duties, or imposts, on imports, or exports, but by consent of the article are very general and comprehensive, and it may receive a construction to Congress; and then the net produce shall be for the benefit of the United States. justify the passing almost any law. A power to make all laws, which shall be The only mean therefore left, for any state to support its government and necessary and proper, for carrying into execution, all powers vested by the discharge its debts, is by direct taxation; and the United States have also power constitution in the government of the United States, or any department or officer to lay and collect taxes, in any way they please. Every one who has thought on thereof, is a power very comprehensive and definite, and may, for ought I know, the subject, must be convinced that but small sums of money can be collected in be exercised in a such manner as entirely to abolish the state legislatures. any country, by direct taxes[; hence,] when the federal government begins to Suppose the legislature of a state should pass a law to raise money to support exercise the right of taxation in all its parts, the legislatures of the several states their government and pay the state debt, may the Congress repeal this law, will find it impossible to raise monies to support their governments. Without because it may prevent the collection of a tax which they may think proper and money they cannot be supported, and they must dwindle away, and, as before necessary to lay, to provide for the general welfare of the United States? For all observed, their powers [will be] absorbed in that of the general government. laws made, in pursuance of this constitution, are the supreme law of the land, and the judges in every state shall be bound thereby, any thing in the It might be here shown, that the power in the federal legislative, to raise and constitution or laws of the different states to the contrary notwithstanding. — By support armies at pleasure, as well in peace as in war, and their control over the such a law, the government of a particular state might be overturned at one militia, tend, not only to a consolidation of the government, but the destruction stroke, and thereby be deprived of every means of its support. of liberty. — I shall not, however, dwell upon these, as a few observations upon the judicial power of this government, in addition to the preceding, will fully It is not meant, by stating this case, to insinuate that the constitution would evince the truth of the position. warrant a law of this kind; or unnecessarily to alarm the fears of the people, by suggesting, that the federal legislature would be more likely to pass the limits The judicial power of the United States is to be vested in a supreme court, and in assigned them by the constitution, than that of an individual state, further than such inferior courts as Congress may from time to time ordain and establish. The they are less responsible to the people. But what is meant is, that the legislature powers of these courts are very extensive; their jurisdiction comprehends all civil of the United States are vested with the great and uncontrollable powers, of causes, except such as arise between citizens of the same state; and it extends to laying and collecting taxes, duties, imposts, and excises; of regulating trade, all cases in law and equity arising under the constitution. One inferior court must raising and supporting armies, organizing, arming, and disciplining the militia, be established, I presume, in each state at least, with the necessary executive instituting courts, and other general powers. And are by this clause invested with officers appendant thereto. It is easy to see, that in the common course of things, the power of making all laws, proper and necessary, for carrying all these into these courts will eclipse the dignity, and take away from the respectability, of the execution; and they may so exercise this power as entirely to annihilate all the

3 state governments, and reduce this country to one single government. And if long subsist. In a large republic there are men of large fortunes, and they may do it, it is pretty certain they will; for it will be found that the power consequently of less moderation; there are trusts too great to be placed in any retained by individual states, small as it is, will be a clog upon the wheels of the single subject; he has interest of his own; he soon begins to think that he may be government of the United States; the latter therefore will be naturally inclined to happy, great and glorious, by oppressing his fellow citizens; and that he may raise remove it out of the way. Besides, it is a truth confirmed by the unerring himself to grandeur on the ruins of his country. In a large republic, the public experience of ages, that every man, and every body of men, invested with good is sacrificed to a thousand views; it is subordinate to exceptions, and power, are ever disposed to increase it, and to acquire a superiority over every depends on accidents. In a small one, the interest of the public is easier thing that stands in their way. This disposition, which is implanted in human perceived, better understood, and more within the reach of every citizen; abuses nature, will operate in the federal legislature to lessen and ultimately to subvert are of less extent, and of course are less protected.” Of the same opinion is the the state authority, and having such advantages, will most certainly succeed, if Marquis Beccarari.[2] the federal government succeeds at all. It must be very evident then, that what this constitution wants of being a complete consolidation of the several parts of History furnishes no example of a free republic, anything like the extent of the the union into one complete government, possessed of perfect legislative, United States. The Grecian republics were of small extent; so also was that of the judicial, and executive powers, to all intents and purposes, it will necessarily Romans. Both of these, it is true, in process of time, extended their conquests acquire in its exercise and operation. over large territories of country; and the consequence was, that their governments were changed from that of free governments to those of the most Let us now proceed to inquire, as I at first proposed, whether it be best the tyrannical that ever existed in the world. thirteen United States should be reduced to one great republic, or not? It is here taken for granted, that all agree in this, that whatever government we adopt, it Not only the opinion of the greatest men, and the experience of mankind, are ought to be a free one; that it should be so framed as to secure the liberty of the against the idea of an extensive republic, but a variety of reasons may be drawn citizens of America, and such an one as to admit of a full, fair, and equal from the reason and nature of things, against it. In every government, the will of representation of the people. The question then will be, whether a government the sovereign is the law. In despotic governments, the supreme authority being thus constituted, and founded on such principles, is practicable, and can be lodged in one, his will is law, and can be as easily expressed to a large extensive exercised over the whole United States, reduced into one state? territory as to a small one. In a pure democracy the people are the sovereign, and their will is declared by themselves; for this purpose they must all come If respect is to be paid to the opinion of the greatest and wisest men who have together to deliberate, and decide. ever thought or wrote on the science of government, we shall be constrained to conclude, that a free republic cannot succeed over a country of such immense This kind of government cannot be exercised, therefore, over a country of any extent, containing such a number of inhabitants, and these increasing in such considerable extent; it must be confined to a single city, or at least limited to rapid progression as that of the whole United States. Among the many illustrious such bounds as that the people can conveniently assemble, be able to debate, authorities which might be produced to this point, I shall content myself with understand the subject submitted to them, and declare their opinion concerning quoting only two. it.

The one is the Baron de Montesquieu, Spirit of the Laws,[1] Chap. xvi. Vol. I [Book VIII]. “It is natural to a republic to have only a small territory, otherwise it cannot

4 In a free republic, although all laws are derived from the consent of the people, their climates and productions; and their sentiments are by no means coincident. yet the people do not declare their consent by themselves in person, but by The laws and customs of the several states are, in many respects, very diverse, representatives, chosen by them, who are supposed to know the minds of their and in some opposite; each would be in favor of its own interests and customs, constituents, and to be possessed of integrity to declare this mind. and, of consequence, a legislature, formed of representatives from the respective parts, would not only be too numerous to act with any care or decision, but would be composed of such heterogeneous and discordant In every free government, the people must give their assent to the laws by which principles, as would constantly be contending with each other. they are governed. This is the true criterion between a free government and an arbitrary one. The former are ruled by the will of the whole, expressed in any manner they may agree upon; the latter by the will of one, or a few. If the people The laws cannot be executed in a republic, of an extent equal to that of the are to give their assent to the laws, by persons chosen and appointed by them, United States, with promptitude. the manner of the choice and the number chosen, must be such, as to possess, be disposed, and consequently qualified to declare the sentiments of the people; The magistrates in every government must be supported in the execution of the for if they do not know, or are not disposed to speak the sentiments of the laws, either by an armed force, maintained at the public expense for that people, the people do not govern, but the sovereignty is in a few. Now, in a large purpose; or by the people turning out to aid the magistrate upon his command, extended country, it is impossible to have a representation, possessing the in case of resistance. sentiments, and of integrity, to declare the minds of the people, without having it so numerous and unwieldy, as to be subject in great measure to the inconveniency of a democratic government. In despotic governments, as well as in all the monarchies of Europe, standing armies are kept up to execute the commands of the prince or the magistrate, and are employed for this purpose when occasion requires: But they have always The territory of the United States is of vast extent; it now contains near three proved the destruction of liberty, and [are] abhorrent to the spirit of a free millions of souls, and is capable of containing much more than ten times that republic. In England, where they depend upon the parliament for their annual number. Is it practicable for a country, so large and so numerous as they will support, they have always been complained of as oppressive and soon become, to elect a representation, that will speak their sentiments, without unconstitutional, and are seldom employed in executing of the laws; never their becoming so numerous as to be incapable of transacting public business? It except on extraordinary occasions, and then under the direction of a civil certainly is not. magistrate.

In a republic, the manners, sentiments, and interests of the people should be A free republic will never keep a standing army to execute its laws. It must similar. If this be not the case, there will be a constant clashing of opinions; and depend upon the support of its citizens. But when a government is to receive its the representatives of one part will be continually striving against those of the support from the aid of the citizens, it must be so constructed as to have the other. This will retard the operations of government, and prevent such confidence, respect, and affection of the people. Men who, upon the call of the conclusions as will promote the public good. If we apply this remark to the magistrate, offer themselves to execute the laws, are influenced to do it either condition of the United States, we shall be convinced that it forbids that we by affection to the government, or from fear; where a standing army is at hand should be one government. The United States includes a variety of climates. The to punish offenders, every man is actuated by the latter principle, and therefore, productions of the different parts of the union are very variant, and their when the magistrate calls, will obey: but, where this is not the case, the interests, of consequence, diverse. Their manners and habits differ as much as

5 government must rest for its support upon the confidence and respect which the executive offices, in a country of the extent of the United-States, must be various people have for their government and laws. The body of the people being and of magnitude. The command of all the troops and navy of the republic, the attached, the government will always be sufficient to support and execute its appointment of officers, the power of pardoning offences, the collecting of all laws, and to operate upon the fears of any faction which may be opposed to it, the public revenues, and the power of expending them, with a number of other not only to prevent an opposition to the execution of the laws themselves, but powers, must be lodged and exercised in every state, in the hands of a few. also to compel the most of them to aid the magistrate; but the people will not be When these are attended with great honor and emolument, as they always will likely to have such confidence in their rulers, in a republic so extensive as the be in large states, so as greatly to interest men to pursue them, and to be proper United States, as necessary for these purposes. The confidence which the people objects for ambitious and designing men, such men will be ever restless in their have in their rulers, in a free republic, arises from their knowing them, from their pursuit after them. They will use the power, when they have acquired it, to the being responsible to them for their conduct, and from the power they have of purposes of gratifying their own interest and ambition, and it is scarcely possible, displacing them when they misbehave: but in a republic of the extent of this in a very large republic, to call them to account for their misconduct, or to continent, the people in general would be acquainted with very few of their prevent their abuse of power. rulers: the people at large would know little of their proceedings, and it would be extremely difficult to change them. The people in Georgia and New-Hampshire These are some of the reasons by which it appears, that a free republic cannot would not know one another’s mind, and therefore could not act in concert to long subsist over a country of the great extent of these states. If then this new enable them to effect a general change of representatives. The different parts of constitution is calculated to consolidate the thirteen states into one, as it so extensive a country could not possibly be made acquainted with the conduct evidently is, it ought not to be adopted. of their representatives, nor be informed of the reasons upon which measures were founded. The consequence will be, they will have no confidence in their legislature, suspect them of ambitious views, be jealous of every measure they Though I am of opinion, that it is a sufficient objection to this government, to adopt, and will not support the laws they pass. Hence the government will be reject it, that it creates the whole union into one government, under the form of nerveless and inefficient, and no way will be left to render it otherwise, but by a republic, yet if this objection was obviated, there are exceptions to it, which are establishing an armed force to execute the laws at the point of the bayonet — a so material and fundamental, that they ought to determine every man, who is a government of all others the most to be dreaded. friend to the liberty and happiness of mankind, not to adopt it. I beg the candid and dispassionate attention of my countrymen while I state these objections — they are such as have obtruded themselves upon my mind upon a careful In a republic of such vast extent as the United-States, the legislature cannot attention to the matter, and such as I sincerely believe are well founded. There attend to the various concerns and wants of its different parts. It cannot be are many objections, of small moment, of which I shall take no notice — sufficiently numerous to be acquainted with the local condition and wants of the perfection is not to be expected in any thing that is the production of man — and different districts, and if it could, it is impossible it should have sufficient time to if I did not in my conscience believe that this scheme was defective in the attend to and provide for all the variety of cases of this nature, that would be fundamental principles — in the foundation upon which a free and equal continually arising. government must rest — I would hold my peace.

In so extensive a republic, the great officers of government would soon become above the control of the people, and abuse their power to the purpose of aggrandizing themselves, and oppressing them. The trust committed to the

6 Brutus IV if, in this paper, I pursue the subject commenced in my last number, to wit, the necessity of an equal and full representation in the legislature.—In that, I showed There can be no free government where the people are not possessed of the that it was not equal, because the smallest states are to send the same number power of making the laws by which they are governed, either in their own of members to the senate as the largest, and, because the slaves, who afford persons, or by others substituted in their stead. neither aid or defence to the government, are to encrease the proportion of members. To prove that it was not a just or adequate representation, it was urged, that so small a number could not resemble the people, or possess their Experience has taught mankind, that legislation by representatives is the most sentiments and dispositions. That the choice of members would commonly fall eligible, and the only practicable mode in which the people of any country can upon the rich and great, while the middling class of the community would be exercise this right, either prudently or beneficially. But then, it is a matter of the excluded. That in so small a representation there was no security against bribery highest importance, in forming this representation, that it be so constituted as to and corruption. be capable of understanding the true interests of the society for which it acts, and so disposed as to pursue the good and happiness of the people as its ultimate end. The object of every free government is the public good, and all The small number which is to compose this legislature, will not only expose it to lesser interests yield to it. That of every tyrannical government, is the happiness the danger of that kind of corruption, and undue influence. which will arise from and aggrandisement of one, or a few, and to this the public felicity, and every the gift of places of honor and emolument, or the more direct one of bribery, but other interest must submit.—The reason of this difference in these governments it will also subject it to another kind of influence no less fatal to the liberties of is obvious. The first is so constituted as to collect the views and wishes of the the people, though it be not so flagrantly repugnant to the principles of whole people in that of their rulers, while the latter is so framed as to separate rectitude. It is not to be expected that a legislature will be found in any country the interests of the governors from that of the governed. The principle of self that will not have some of its members, who will pursue their private ends. and love, therefore, that will nfluence the one to promote the good of the whole, will for which they will sacrifice the public good. Men of this character are, generally, prompt the other to follow its own private advantage. The great art, therefore, in artful and designing, and frequently possess brilliant talents and abilities; they forming a good constitution, appears to be this, so to frame it, as that those to commonly act in concert, and agree to share the spoils of their country among whom the power is committed shall be subject to the same feelings, and aim at them; they will keep their object ever in view, and follow it with constancy. To the same objects as the people do, who transfer to them their authority. There is effect their purpose, they will assume any shape, and, Proteus like, mould no possible way to effect this but by an equal, full and fair representation; this, themselves into any form— where they find members proof against direct therefore, is the great desideratum in politics. However fair an appearance any bribery or gifts of offices, they will endeavor to mislead their minds by specious government may make, though it may possess a thousand plausible articles and and false reasoning, to impose upon their unsuspecting honesty by an affectation be decorated with ever so many ornaments, yet if it is deficient in this essential of zeal for the public good; they will form juntos, and hold out-door meetings; principle of a full and just representation of the people, it will be only like a they will operate upon the good nature of their opponents, by a thousand little painted sepulcher—For, without this it cannot be a free government; let the attentions, and teize them into compliance by the earnestness of solicitation. administration of it be good or ill, it still will be a government, not according to Those who are acquainted with the manner of conducting business in public the will of the people, but according to the will of a few. assemblies, know how prevalent art and address are in carrying a measure, even over men of the best intentions, and of good understanding. The firmest security against this kind of improper and dangerous influence, as well as all other, is a To test this new constitution then, by this principle, is of the last importance—It strong and numerous representation: in such a house of assembly, so great a is to bring it to the touch-stone of national liberty, and I hope I shall be excused, number must be gained over, before the private views of individuals could be

7 gratified that there could be scarce a hope of success. But in the foederal In order for the people safely to repose themselves on their rulers, they should assembly, seventeen men are all that is necessary to pass a law. It is probable, it not only be of their own choice. But it is requisite they should be acquainted with will seldom happen that more than twenty-five will be requisite to form a their abilities to manage the public concerns with wisdom. They should be majority, when it is considered what a number of places of honor and satisfied that those who represent them are men of integrity, who will pursue emolument will be in the gift of the executive, the powerful influence that great the good of the community with fidelity; and will not be turned aside from their and designing men have over the honest and unsuspecting, by their art and duty by private interest, or corrupted by undue influence; and that they will have address, their soothing manners and civilities, and their cringing flattery, joined such a zeal for the good of those whom they represent, as to excite them to be with their affected patriotism; when these different species of influence are diligent in their service; but it is impossible the people of the United States combined, it is scarcely to be hoped that a legislature, composed of so small a should have sufficient knowledge of their representatives, when the numbers are number, as the one proposed by the new constitution, will long resist their force. so few, to acquire any rational satisfaction on either of these points. The people of this state will have very little acquaintance with those who may be chosen to represent them; a great part of them will, probably, not know the characters of A farther objection against the feebleness of the representation is, that it will not their own members, much less that of a majority of those who will compose the possess the confidence of the people. The execution of the laws in a free foederal assembly; they will consist of men, whose names they have never government must rest on this confidence, and this must be founded on the good heard, and whose talents and regard for the public good, they are total strangers opinion they entertain of the framers of the laws. Every government must be to; and they will have no persons so immediately of their choice so near them, of supported, either by the people having such an attachment to it, as to be ready, their neighbours and of their own rank in life, that they can feel themselves when called upon, to support it, or by a force at the command of the secure in trusting their interests in their hands. The representatives of the people government, to compel obedience. The latter mode destroys every idea of a free cannot, as they now do, after they have passed laws, mix with the people, and government; for the same force that may be employed to compel obedience to explain to them the motives which induced the adoption of any measure, point good laws, might, and probably would be used to wrest from the people their out its utility, and remove objections or silence unreasonable clamours against constitutional liberties.—Whether it is practicable to have a representation for it.—The number will be so small that but a very few of the most sensible and the whole union sufficiently numerous to obtain that confidence which is respectable yeomanry of the country can ever have any knowledge of them: necessary for the purpose of internal taxation, and other powers to which this being so far removed from the people, their station will be elevated and proposed government extends, is an important question. I am clearly of opinion, important, and they will be considered as ambitious and designing. They will not it is not, and therefore I have stated this in my first number, as one of the be viewed by the people as part of themselves, but as a body distinct from them, reasons against going into an entire consolidation of the states—one of the most and having separate interests to pursue; the consequence will be, that a capital errors in the system, is that of extending the powers of the foederal perpetual jealousy will exist in the minds of the people against them; their government to objects to which it is not adequate, which it cannot exercise conduct will be narrowly watched; their measures scrutinized; and their laws without endangering public liberty, and which it is not necessary they should opposed, evaded, or reluctantly obeyed. This is natural, and exactly corresponds possess, in order to preserve the union and manage our national concerns; of with the conduct of individuals towards those in whose hands they intrust this, however, I shall treat more fully in some future paper—But, however this important concerns. If the person confided in, be a neighbour with whom his may be. certain it is, that the representation in the legislature is not so formed as employer is intimately acquainted, whose talents, he knows, are sufficient to to give reasonable ground for public trust. manage the business with which he is charged, his honesty and fidelity unsuspected, and his friendship and zeal for the service of this principal unquestionable, he will commit his affairs into his hands with unreserved

8 confidence, and feel himself secure; all the transactions of the agent will meet It is clear that, under this article, the foederal legislature may institute such rules with the most favorable construction, and the measures he takes will give respecting elections as to lead to the choice of one description of men. The satisfaction. But, if the person employed be a stranger, whom he has never seen, weakness of the representation, tends but too certainly to confer on the rich and whose character for ability or fidelity he cannot fully learn—If he is and well-born, all honours; but the power granted in this article, may be so constrained to choose him, because it was not in his power to procure one more exercised, as to secure it almost beyond a possibility of controul. The proposed agreeable to his wishes, he will trust him with caution, and be suspicious of all his Congress may make the whole state one district, and direct, that the capital (the conduct. city of New-York, for instance) shall be the place for holding the election; the consequence would be, that none but men of the most elevated rank in society would attend, and they would as certainly choose men of their own class; as it is If then this government should not derive support from the good will of the true what the Apostle Paul saith, that “no man ever yet hated his own flesh, but people, it must be executed by force, or not executed at all; either case would nourisheth and cherisheth it.”—They may declare that those members who have lead to the total destruction of liberty.—The convention seemed aware of this, the greatest number of votes, shall be considered as duly elected; the and have therefore provided for calling out the militia to execute the laws of the consequence would be that the people, who are dispersed in the interior parts of union. If this system was so framed as to command that respect from the people, the state, would give their votes for a variety of candidates, while any order, or which every good free government will obtain, this provision was unnecessary— profession, residing in populous places, by uniting their interests, might procure the people would support the civil magistrate. This power is a novel one, in free whom they pleased to be chosen—and by this means the representatives of the governments—these have depended for the execution of the laws on the Posse state may be elected by one tenth part of the people who actually vote. This may Comitatus, and never raised an idea, that the people would refuse to aid the civil be effected constitutionally, and by one of those silent operations which magistrate in executing those laws they themselves had made. I shall now frequently takes place without being noticed, but which often produces such dismiss the subject of the incompetency of the representation, and proceed, as I changes as entirely to alter a government, subvert a free constitution, and rivet promised, to shew, that, impotent as it is, the people have no security that they the chains on a free people before they perceive they are forged. Had the power will enjoy the exercise of the right of electing this assembly, which, at best, can of regulating elections been left under the direction of the state legislatures, be considered but as the shadow of representation. where the people are not only nominally but substantially represented, it would have been secure; but if it was taken outof their hands, it surely ought to have By section 4, article I, the Congress are authorized, at any time, by law, to make, been fixed on such a basis as to have put it out of the power of the foederal or alter, regulations respecting the time, place, and manner of holding elections legislature to deprive the people of it by law. Provision should have been made for senators and representatives, except as to the places of choosing senators. By for marking out the states into districts, and for choosing, by a majority of votes, this clause the right of election itself, is, in a great measure, transferred from the a person out of each of them of permanent property and residence in the district people to their rulers.—One would think, that if any thing was necessary to be which he was to represent. made a fundamental article of the original compact, it would be, that of fixing the branches of the legislature, so as to put it out of its power to alter itself by If the people of America will submit to a constitution that will vest in the hands of modifying the election of its own members at will and pleasure. When a people any body of men a right to deprive them by law of the privilege of a fair election, once resign the privilege of a fair election, they clearly have none left worth they will submit to almost any thing. Reasoning with them will be in vain, they contending for. must be left until they are brought to reflection by feeling oppression—they will then have to wrest from their oppressors, by a strong hand. that which they now

9 possess, and which they may retain if they will exercise but a moderate share of Brutus X prudence and firmness. The liberties of a people are in danger from a large standing army, not only because the rulers may employ them for the purposes of supporting themselves I know it is said that the dangers apprehended from this clause are merely in any usurpations of power, which they may see proper to exercise, but there is imaginary, that the proposed general legislature will be disposed to regulate great hazard, that an army will subvert the forms of the government, under elections upon proper principles, and to use their power with discretion, and to whose authority, they are raised, and establish one, according to the pleasure of promote the public good. On this, I would observe, that constitutions are not so their leader. necessary to regulate the conduct of good rulers as to restrain that of bad ones.—Wise and good men will exercise power so as to promote the public happiness under any form of government. If we are to take it for granted, that We are informed, in the faithful pages of history, of such events frequently those who administer the government under this system, will always pay proper happening. — Two instances have been mentioned in a former paper. They are attention to the rights and interests of the people, nothing more was necessary so remarkable, that they are worthy of the most careful attention of every lover than to say who should be invested with the powers of government, and leave of freedom. — They are taken from the history of the two most powerful nations them to exercise it at will and pleasure. Men are apt to be deceived both with that have ever existed in the world; and who are the most renowned, for the respect to their own dispositions and those of others. Though this truth is proved freedom they enjoyed, and the excellency of their constitutions: — I mean Rome by almost every page of the history of nations, to wit, that power, lodged in the and Britain. hands of rulers to be used at discretion, is almost always exercised to the oppression of the people, and the aggrandizement of themselves; yet most men In the first, the liberties of the commonwealth was destroyed, and the think if it was lodged in their hands they would not employ it in this manner.— constitution overturned, by an army, lead by Julius Cesar, who was appointed to Thus when the prophet Elisha told Hazael, “I know the evil that thou wilt do unto the command, by the constitutional authority of that commonwealth. He the children of Israel; their strong holds wilt thou set on fire, and their young changed it from a free republic, whose fame had sounded, and is still celebrated men, wilt thou slay with the sword, and wilt dash their children, and rip up their by all the world, into that of the most absolute despotism. A standing army women with child.” Hazael had no idea that he ever should be guilty of such effected this change, and a standing army supported it through a succession of horrid cruelty, and said to the prophet, “Is thy servant a dog that he should do ages, which are marked in the annals of history, with the most horrid cruelties, this great thing.” Elisha answered, “The Lord hath shewed me that thou shalt be bloodshed, and carnage; — The most devilish, beastly, and unnatural vices, that king of Syria.” The event proved, that Hazael only wanted an opportunity to ever punished or disgraced human nature. perpetrate these enormities without restraint, and he had a disposition to do them, though he himself knew it not. The same army, that in Britain, vindicated the liberties of that people from the encroachments and despotism of a tyrant king, assisted Cromwell, their General,

in wresting from the people, that liberty they had so dearly earned.

You may be told, these instances will not apply to our case: — But those who would persuade you to believe this, either mean to deceive you, or have not themselves considered the subject.

10 I firmly believe, no country in the world had ever a more patriotic army, than the From these remarks, it appears, that the evil to be feared from a large standing one which so ably served this country, in the late war. army in time of peace, does not arise solely from the apprehension, that the rulers may employ them for the purpose of promoting their own ambitious views, but that equal, and perhaps greater danger, is to be apprehended from But had the General who commanded them, been possessed of the spirit of a their overturning the constitutional powers of the government, and assuming the Julius Cesar or a Cromwell, the liberties of this country, had in all probability, power to dictate any form they please. terminated with the war; or had they been maintained, might have cost more blood and treasure, than was expended in the conflict with Great-Britain. When an anonimous writer addressed the officers of the army at the close of the war, The advocates for power, in support of this right in the proposed government, advising them not to part with their arms, until justice was done them — the urge that a restraint upon the discretion of the legislatures, in respect to military effect it had is well known. It affected them like an electric shock. He wrote like establishments in time of peace, would be improper to be imposed, because they Cesar; and had the commander in chief, and a few more officers of rank, say, it will be necessary to maintain small garrisons on the frontiers, to guard countenanced the measure, the desperate resolution had been taken, to refuse against the depredations of the Indians, and to be prepared to repel any to disband. What the consequences of such a determination would have been, encroachments or invasions that may be made by Spain or Britain. heaven only knows. — The army were in the full vigor of health and spirits, in the habit of discipline, and possessed of all our military stores and apparatus. They The amount of this argument striped of the abundant verbages with which the would have acquired great accessions of strength from the country. — Those author has dressed it, is this: who were disgusted at our republican forms of government (for such there then were, of high rank among us) would have lent them all their aid. — We should in all probability have seen a constitution and laws, dictated to us, at the head of an It will probably be necessary to keep up a small body of troops to garrison a few army, and at the point of a bayonet, and the liberties for which we had so posts, which it will be necessary to maintain, in order to guard against the severely struggled, snatched from us in a moment. It remains a secret, yet to be sudden encroachments of the Indians, or of the Spaniards and British; and revealed, whether this measure was not suggested, or at least countenanced, by therefore, the general government ought to be invested with power to raise and some, who have had great influence in producing the present system. — keep up a standing army in time of peace, without restraint; at their discretion. Fortunately indeed for this country, it had at the head of the army, a patriot as well as a general; and many of our principal officers, had not abandoned the characters of citizens, by assuming that of soldiers, and therefore, the scheme I confess, I cannot perceive that the conclusion follows from the premises. proved abortive. But are we to expect, that this will always be the case? Are we Logicians say, it is not good reasoning to infer a general conclusion from so much better than the people of other ages and of other countries, that the particular premises: though I am not much of a Logician, it seems to me, this same allurements of power and greatness, which led them aside from their duty, argument is very like that species of reasoning. will have no influence upon men in our country? Such an idea, is wild and extravagant. — Had we indulged such a delusion, enough has appeared in a little When the patriots in the parliament in Great-Britain, contended with such force time past, to convince the most credulous, that the passion for pomp, power and of argument, and all the powers of eloquence, against keeping up standing greatness, works as powerfully in the hearts of many of our better sort, as it ever armies in time of peace, it is obvious, they never entertained an idea, that small did in any country under heaven. — Were the same opportunity again to offer, garrisons on their frontiers, or in the neighbourhood of powers, from whom they we should very probably be grossly disappointed, if we made dependence, that were in danger of encroachments, or guards, to take care of public arsenals all who then rejected the overture, would do it again. would thereby be prohibited.

11 The advocates for this power farther urge that it is necessary, because it may, such purposes and on such occasions, is not included in the idea, of keeping up and probably will happen, that circumstances will render it requisite to raise an standing armies in times of peace. army to be prepared to repel attacks of an enemy, before a formal declaration of war, which in modern times has fallen into disuse. If the constitution prohibited It is a thing very practicable to give the government sufficient authority to the raising an army, until a war actually commenced, it would deprive the provide for these cases, and at the same time to provide a reasonable and government of the power of providing for the defence of the country, until the competent security against the evil of a standing army — a clause to the enemy were within our territory. If the restriction is not to extend to the raising following purpose would answer the end: armies in cases of emergency, but only to the keeping them up, this would leave the matter to the discretion of the legislature; and they might, under the pretence that there was danger of an invasion, keep up the army as long as they As standing armies in time of peace are dangerous to liberty, and have often judged proper — and hence it is inferred, that the legislature should have been the means of overturning the best constitutions of government, no authority to raise and keep up an army without any restriction. But from these standing army, or troops of any description whatsoever, shall be raised or kept premises nothing more will follow than this, that the legislature should not be so up by the legislature, except so many as shall be necessary for guards to the restrained, as to put it out of their power to raise an army, when such exigencies arsenals of the United States, or for garrisons to such posts on the frontiers, as it as are instanced shall arise. But it does not thence follow, that the government shall be deemed absolutely necessary to hold, to secure the inhabitants, and should be empowered to raise and maintain standing armies at their discretion facilitate the trade with the Indians: unless when the United States are as well in peace as in war. If indeed, it is impossible to vest the general threatened with an attack or invasion from some foreign power, in which case government with the power of raising troops to garrison the frontier posts, to the legislature shall be authorised to raise an army to be prepared to repel the guard arsenals, or to be prepared to repel an attack, when we saw a power attack; provided that no troops whatsoever shall be raised in time of peace, preparing to make one, without giving them a general and indefinite authority, to without the assent of two thirds of the members, composing both houses of the raise and keep up armies, without any restriction or qualification, then this legislature. reasoning might have weight; but this has not been proved nor can it be. A clause similar to this would afford sufficient latitude to the legislature to raise It is admitted that to prohibit the general government, from keeping up standing troops in all cases that were really necessary, and at the same time competent armies, while yet they were authorised to raise them in case of exigency, would security against the establishment of that dangerous engine of despotism a be an insufficient guard against the danger. A discretion of such latitude would standing army. give room to elude the force of the provision. The same writer who advances the arguments I have noticed, makes a number of It is also admitted that an absolute prohibition against raising troops, except in other observations with a view to prove that the power to raise and keep up cases of actual war, would be improper; because it will be requisite to raise and armies, ought to be discretionary in the general legislature; some of them are support a small number of troops to garrison the important frontier posts, and to curious; he instances the raising of troops in Massachusetts and Pennsylvania, to guard arsenals; and it may happen, that the danger of an attack from a foreign shew the necessity of keeping a standing army in time of peace; the least power may be so imminent, as to render it highly proper we should raise an reflection must convince every candid mind that both these cases are totally army, in order to be prepared to resist them. But to raise and keep up forces for foreign to his purpose — Massachusetts raised a body of troops for six months, at the expiration of which they were to disband of course; this looks very little

12 like a standing army. But beside, was that commonwealth in a state of peace at confident that I am well founded in this opinion, that I am persuaded, if it was to that time? So far from it that they were in the most violent commotions and be adopted or rejected, upon a fair discussion of its merits, without taking into contents, and their legislature had formally declared that an unnatural rebellion contemplation circumstances extraneous to it, as reasons for its adoption, existed within the state. The situation of Pennsylvania was similar; a number of nineteen-twentieths of the sensible men in the union would reject it on this armed men had levied war against the authority of the state, and openly avowed account alone; unless its powers were confined to much fewer objects than it their intention of withdrawing their allegiance from it. To what purpose embraces. examples are brought, of states raising troops for short periods in times of war or insurrections, on a question concerning the propriety of keeping up standing armies in times of peace, the public must judge.

Centinel I It is farther said, that no danger can arise from this power being lodged in the hands of the general government, because the legislatures will be a check upon To the Freemen of Pennsylvania them, to prevent their abusing it.

Friends, Countrymen and Fellow Citizens, Permit one of yourselves to put you in This is offered, as what force there is in it will hereafter receive a more particular mind of certain liberties and privileges secured to you by the constitution of this examination. At present, I shall only remark, that it is difficult to conceive how commonwealth, and to beg your serious attention to his uninterested opinion the state legislatures can, in any case, hold a check over the general legislature, upon the plan of federal government submitted to your consideration, before in a constitutional way. The latter has, in every instance to which their powers you surrender these great and valuable privileges up forever. Your present frame extend, complete controul over the former. The state legislatures can, in no case, of government, secures to you a right to hold yourselves, houses, papers and by law, resolution, or otherwise, of right, prevent or impede the general possessions free from search and seizure, and therefore warrants granted government, from enacting any law, or executing it, which this constitution without oaths or affirmations first made, affording sufficient foundation for authorizes them to enact or execute. If then the state legislatures check the them, whereby any officer or messenger may be commanded or required to general legislatures [sic], it must be by exciting the people to resist constitutional search your houses or seize your persons or property, not particularly described laws. In this way every individual, or every body of men, may check any in such warrant, shall not be granted. Your constitution further provides “that in government, in proportion to the influence they may have over the body of the controversies respecting property, and in suits between man and man, the people. But such kinds of checks as these, though they sometimes correct the parties have a right to trial by jury, which ought to be held sacred.” It also abuses of government, oftner destroy all government. provides and declares “that the people have a right of FREEDOM OF SPEECH, and of WRITING and PUBLISHING their sentiments, therefore THE FREEDOM OF THE It is further said, that no danger is to be apprehended from the exercise of this PRESS OUGHT NOT TO BE RESTRAINED.” The constitution of Pennsylvania is yet power, because it is lodged in the hands of representatives of the people; if they in existence, as yet you have the right to freedom of speech, and of publishing abuse it, it is in the power of the people to remove them, and chuse others who your sentiments. How long those rights will appertain to you, you yourselves are will pursue their interests. Not to repeat what has been said before, That it is called upon to say, whether your houses shall continue to be your castles; unwise in any people, to authorize their rulers to do, what, if done, would prove whether your papers, your persons and your property, are to be held sacred and injurious — I have, in some former numbers, shewn, that the representation in free from general warrants, you are now to determine. Whether the trial by jury the proposed government will be a mere shadow without the substance. I am so

13 is to continue as your birth-right, the freemen of Pennsylvania, nay, of all I am fearful that the principles of government inculcated in Mr. [John] Adams’s America, are now called upon to declare. treatise,[2] and enforced in the numerous essays and paragraphs in the newspapers, have misled some well designing members of the late Convention. But it will appear in the sequel, that the construction of the proposed plan of Without presuming upon my own judgment, I cannot think it an unwarrantable government is infinitely more extravagant. presumption to offer my private opinion, and call upon others for theirs; and if I use my pen with the boldness of a freeman, it is because I know that the liberty of the press yet remains unviolated, and juries yet are judges. I have been anxiously expecting that some enlightened patriot would, ere this, have taken up the pen to expose the futility, and counteract the baneful tendency of such principles. Mr. Adams’s sine qua non[3] of a good government The late Convention have submitted to your consideration a plan of a new is three balancing powers, whose repelling qualities are to produce an federal government — The subject is highly interesting to your future welfare — equilibrium of interests, and thereby promote the happiness of the whole Whether it be calculated to promote the great ends of civil society, viz.[1] the community. He asserts that the administrators of every government, will ever be happiness and prosperity of the community; it behoves you well to consider, actuated by views of private interest and ambition, to the prejudice of the public uninfluenced by the authority of names. Instead of that frenzy of enthusiasm, good; that therefore the only effectual method to secure the rights of the people that has actuated the citizens of Philadelphia, in their approbation of the and promote their welfare, is to create an opposition of interests between the proposed plan, before it was possible that it could be the result of a rational members of two distinct bodies, in the exercise of the powers of government, investigation into its principles; it ought to be dispassionately and deliberately and balanced by those of a third. This hypothesis supposes human wisdom examined, and its own intrinsic merit the only criterion of your patronage. If ever competent to the task of instituting three co-equal orders in government, and a free and unbiased discussion was proper or necessary, it is on such an occasion. corresponding weight in the community to enable them respectively to exercise — All the blessings of liberty and the dearest privileges of freemen, are now at their several parts, and whose views and interests should be so distinct as to stake and dependent on your present conduct. Those who are competent to the prevent a coalition of any two of them for the destruction of the third. Mr. task of developing the principles of government, ought to be encouraged to Adams, although he has traced the constitution of every form of government come forward, and thereby the better enable the people to make a proper that ever existed, as far as history affords materials, has not been able to adduce judgment; for the science of government is so abstruse, that few are able to a single instance of such a government; he indeed says that the British judge for themselves; without such assistance the people are too apt to yield an constitution is such in theory, but this is rather a confirmation that his principles implicit assent to the opinions of those characters, whose abilities are held in the are chimerical[4] and not to be reduced to practice. If such an organization of highest esteem, and to those in whose integrity and patriotism they can confide; power were practicable, how long would it continue? not a day — for there is so not considering that the love of domination is generally in proportion to talents, great a disparity in the talents, wisdom and industry of mankind, that the scale abilities, and superior acquirements; and that the men of the greatest purity of would presently preponderate to one or the other body, and with every intention may be made instruments of despotism in the hands of the artful and accession of power the means of further increase would be greatly extended. designing. If it were not for the stability and attachment which time and habit The state of society in England is much more favorable to such a scheme of gives to forms of government it would be in the power of the enlightened and government than that of America. There they have a powerful hereditary aspiring few, if they should combine, at any time to destroy the best nobility, and real distinctions of rank and interests; but even there, for want of establishments, and even make the people the instruments of their own that perfect equality of power and distinction of interests, in the three orders of subjugation. . . . government, they exist but in name; the only operative and efficient check, upon the conduct of administration, is the sense of the people at large.

14 Suppose a government could be formed and supported on such principles, would is neither founded on those balancing restraining powers, recommended by Mr. it answer the great purposes of civil society; If the administrators of every Adams and attempted in the British constitution, or possessed of that government are actuated by views of private interest and ambition, how is the responsibility to its constituents, which, in my opinion, is the only effectual welfare and happiness of the community to be the result of such jarring adverse security for the liberties and happiness of the people; but on the contrary, that it interests? is the most daring attempt to establish a despotic aristocracy among freemen, that the world has ever witnessed. Therefore, as different orders in government will not produce the good of the whole, we must recur to other principles. I believe it will be found that the form I shall previously consider the extent of the powers intended to be vested in of government, which holds those entrusted with power, in the greatest Congress, before I examine the construction of the general government. responsibility to their constituents, the best calculated for freemen. A republican, or free government, can only exist where the body of the people are virtuous, It will not be controverted[5] that the legislative is the highest delegated power in and where property is pretty equally divided; in such a government the people government, and that all others are subordinate to it. The celebrated are the sovereign and their sense or opinion is the criterion of every public Montesquieu[6] establishes it as a maxim, that legislation necessarily follows the measure; for when this ceases to be the case, the nature of the government is power of taxation. By sect. 8, of the first article of the proposed plan of changed, and an aristocracy, monarchy or despotism will rise on its ruin. The government, “the Congress are to have power to lay and collect taxes, duties, highest responsibility is to be attained, in a simple structure of government, for imposts and excises, to pay the debts and provide for the common defense and the great body of the people never steadily attend to the operations of general welfare of the United States, but all duties, imposts and excises, shall be government, and for want of due information are liable to be imposed on — If uniform throughout the United States.” Now what can be more comprehensive you complicate the plan by various orders, the people will be perplexed and than these words; not content by other sections of this plan, to grant all the divided in their sentiments about the source of abuses or misconduct, some will great executive powers of a confederation, and a STANDING ARMY IN TIME OF impute it to the senate, others to the house of representatives, and so on, that PEACE, that grand engine of oppression, and moreover the absolute control over the interposition of the people may be rendered imperfect or perhaps wholly the commerce of the United States and all external objects of revenue, such as abortive. But if, imitating the constitution of Pennsylvania, you vest all the unlimited imposts upon imports, etc. — they are to be vested with every species legislative power in one body of men (separating the executive and judicial) of internal taxation — whatever taxes, duties and excises that they may deem elected for a short period, and necessarily excluded by rotation from requisite for the general welfare, may be imposed on the citizens of these states, permanency, and guarded from precipitancy and surprise by delays imposed on levied by the officers of Congress, distributed through every district in America; its proceedings, you will create the most perfect responsibility, for then, and the collection would be enforced by the standing army, however grievous or whenever the people feel a grievance they cannot mistake the authors, and will improper they may be. The Congress may construe every purpose for which the apply the remedy with certainty and effect, discarding them at the next election. state legislatures now lay taxes, to be for the general welfare, and thereby seize This tie of responsibility will obviate all the dangers apprehended from a single upon every object of revenue. legislature, and will the best secure the rights of the people.

The judicial power by 1st sect. of article 3 “shall extend to all cases, in law and Having premised this much, I shall now proceed to the examination of the equity, arising under this constitution, the laws of the United States, and treaties proposed plan of government, and I trust, shall make it appear to the meanest made or which shall be made under their authority; to all cases affecting capacity, that it has none of the essential requisites of a free government; that it ambassadors, other public ministers and consuls; to all cases of admiralty and

15 maritime jurisdiction, to controversies to which the United States shall be a times, places and manner of holding elections for senators and representatives, party, to controversies between two or more states, between a state and citizens shall be prescribed in each state by the legislature thereof; but the Congress may of another state, between citizens of different states, between citizens of the at any time, by law, make or alter such regulations, except as to the place of same state claiming lands under grants of different states, and between a state, choosing senators.” The plain construction of which is, that when the state or the citizens thereof, and foreign states, citizens or subjects.” legislatures drop out of sight, from the necessary operation [of] this government, then Congress are to provide for the election and appointment of representatives and senators. The judicial power to be vested in one Supreme Court, and in such Inferior Courts as the Congress may from time to time ordain and establish. If the foregoing be a just comment — if the united states are to be melted down into one empire, it becomes you to consider, whether such a government, The objects of jurisdiction recited above, are so numerous, and the shades of however constructed, would be eligible in so extended a territory; and whether it distinction between civil causes are oftentimes so slight, that it is more than would be practicable, consistent with freedom? It is the opinion of the greatest probable that the state judicatories would be wholly superseded; for in contests writers, that a very extensive country cannot be governed on democratical about jurisdiction, the federal court, as the most powerful, would ever prevail. principles, on any other plan, than a confederation of a number of small Every person acquainted with the history of the courts in England, knows by republics, possessing all the powers of internal government, but united in the what ingenious sophisms they have, at different periods, extended the sphere of management of their foreign and general concerns. their jurisdiction over objects out of the line of their institution, and contrary to their very nature; courts of a criminal jurisdiction obtaining cognizance in civil causes. It would not be difficult to prove, that any thing short of despotism, could not bind so great a country under one government; and that whatever plan you might, at the first setting out, establish, it would issue in a despotism. To put the omnipotency of Congress over the state government and judicatories out of all doubt, the 6th article ordains that “this constitution and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or If one general government could be instituted and maintained on principles of which shall be made under the authority of the United States, shall be the freedom, it would not be so competent to attend to the various local concerns supreme law of the land, and the judges in every state shall be bound thereby, and wants, of every particular district, as well as the peculiar governments, who any thing in the constitution or laws of any state to the contrary are nearer the scene, and possessed of superior means of information, besides, if notwithstanding.” the business of the whole union is to be managed by one government, there would not be time. Do we not already see, that the inhabitants in a number of larger states, who are remote from the seat of government, are loudly By these sections the all-prevailing power of taxation, and such extensive complaining of the inconveniencies and disadvantages they are subjected to on legislative and judicial powers are vested in the general government, as must in this account, and that, to enjoy the comforts of local government, they are their operation, necessarily absorb the state legislatures and judicatories; and separating into smaller divisions. that such was in the contemplation of the framers of it, will appear from the provision made for such event, in another part of it; (but that, fearful of alarming the people by so great an innovation, they have suffered the forms of the Having taken a review of the powers, I shall now examine the construction of the separate governments to remain, as a blind.) By sect. 4th of the 1st article, “the proposed general government.

16 Art. 1. Sect. 1. “All legislative powers herein granted shall be vested in a Congress control over both, they may govern the choice, by ordering the representatives of the United States, which shall consist of a senate and house of of a whole state, to be elected in one place, and that too may be the most representatives.” By another section, the president (the principal executive inconvenient. officer) has a conditional control over their proceedings. The senate, the great efficient body in this plan of government, is constituted on Sect. 2. “The house of representatives shall be composed of members chosen the most unequal principles. The smallest state in the union has equal weight every second year, by the people of the several states. The number of with the great states of Virginia, Massachusetts, or Pennsylvania—The Senate, representatives shall not exceed one for every 30,000 inhabitants.” besides its legislative functions, has a very considerable share in the Executive; none of the principal appointments to office can be made without its advice and consent. The term and mode of its appointment, will lead to permanency; the The senate, the other constituent branch of the legislature, is formed by the members are chosen for six years, the mode is under the control of Congress, legislature of each state appointing two senators, for the term of six years. and as there is no exclusion by rotation, they may be continued for life, which, from their extensive means of influence, would follow of course. The President, The executive power by Art. 2, Sect. 1. is to be vested in a president of the United who would be a mere pageant of state, unless he coincides with the views of the States of America, elected for four years: Sect. 2. gives him “power, by and with Senate, would either become the head of the aristocratic junto in that body, or the consent of the senate to make treaties, provided two thirds of the senators its minion, besides, their influence being the most predominant, could the best present concur; and he shall nominate, and by and with the advice and consent secure his re-election to office. And from his power of granting pardons, he might of the senate, shall appoint ambassadors, other public ministers and consuls, screen from punishment the most treasonable attempts on liberties of the judges of the Supreme Court, and all other officers of the United States, whose people, when instigated by the Senate. appointments are not herein otherwise provided for, and which shall be established by law,” etc. And by another section he has the absolute power of From this investigation into the organization of this government, it appears that granting reprieves and pardons for treason and all other high crimes and it is devoid of all responsibility or accountability to the great body of the people, misdemeanors, except in case of impeachment. and that so far from being a regular balanced government, it would be in practice a permanent ARISTOCRACY. The foregoing are the outlines of the plan. The framers of it, actuated by the true spirit of such a government, which ever Thus we see, the house of representatives, are on the part of the people to abominates and suppresses all free enquiry and discussion, have made no balance the senate, who I suppose will be composed of the better sort, the well provision for the liberty of the press, that grand palladium of freedom, and born, etc. The number of the representatives (being only one for every 30,000 scourge of tyrants, but observed a total silence on that head. It is the opinion of inhabitants) appears to be too few, either to communicate the requisite some great writers, that if the liberty of the press, by an institution of religion, or information, of the wants, local circumstances and sentiments of so extensive an otherwise, could be rendered sacred, even in Turkey, that despotism would fly empire, or to prevent corruption and undue influence, in the exercise of such before it. great powers; the term for which they are to be chosen, too long to preserve a due dependence and accountability to their constituents; and the mode and places of their election not sufficiently ascertained, for as Congress have the

17 And it is worthy of remark, that there is no declaration of personal rights, Who’s here so vile, that will not love his country? premised in most free constitutions; and that trial by jury in civil cases is taken away; for what other construction can be put on the following, viz. Article 3. Sect. If any, speak; for him have I offended. 2d. “In all cases affecting ambassadors, other public ministers and consuls, and those in which a State shall be party, the Supreme Court shall have original jurisdiction. In all the other cases above mentioned, the Supreme Court shall —Julius Caesar, Act 3, Scene 2 have appellate jurisdiction, both as to law and fact”? It would be a novelty in jurisprudence, as well as evidently improper to allow an appeal from the verdict of a jury, on the matter of fact; therefore, it implies and allows of a dismissal of Centinel. the jury in civil cases, and especially when it is considered, that jury trial in criminal cases is expressly stipulated for, but not in civil cases.

But our situation is represented to be so critically dreadful that, however Federal Farmer I reprehensible and exceptionable the proposed plan of government may be, there is no alternative, between the adoption of it and absolute ruin. DEAR SIR,

My fellow citizens, things are not at that crisis, it is the argument of tyrants; the MY letters to you last winter, on the subject of a well balanced national present distracted state of Europe secures us from injury on that quarter, and as government for the United States, were the result of a free enquiry; when I to domestic dissensions, we have not so much to fear from them, as to passed from that subject to enquiries relative to our commerce, revenues, past precipitate us into this form of government, without it is[7] a safe and a proper administration, &c. I anticipated the anxieties I feel, on carefully examining the one. For remember, of all possible evils that of despotism is the worst and the plan of government proposed by the convention. It appears to be a plan retaining most to be dreaded. some federal features; but to be the first important step, and to aim strongly at one consolidated government of the United States. It leaves the powers of Besides, it cannot be supposed, that the first essay on so difficult a subject, is so government, and the representation of the people, so unnaturally divided well digested, as it ought to be, — if the proposed plan, after a mature between the general and state governments, that the operations of our system deliberation, should meet the approbation of the respective States, the matter must be very uncertain. My uniform federal attachments, and the interest I have will end, but if it should be found to be fraught with dangers and in the protection of property, and a steady execution of the laws, will convince inconveniencies, a future general Convention being in possession of the you, that, if I am under any bias at all, it is in favor of any general system which objections, will be the better enabled to plan a suitable government. shall promise those advantages. The instability of our laws increases my wishes for firm and steady government; but then, I can consent to no government, which, in my opinion, is not calculated equally to preserve the rights of all orders Who’s here so base, that would a bondsman be? of men in the community. My object has been to join with those who have endeavored to supply the defects in the forms of our governments by a steady and proper administration of them. Though I have long apprehended that If any, speak; for him have I offended. fraudulent debtors, and embarrassed men, on the one hand, and men, on the

18 other, unfriendly to republican equality, would produce an uneasiness among the exigencies, except the regulation of trade, securing credit, in some cases, and people, and prepare the way, not for cool and deliberate reforms in the providing for the interest, in some instances, of the public debts; and whether we governments, but for changes calculated to promote the interests of particular adopt a change three or nine months hence, can make but little odds with the orders of men. Acquit me, sir, of any agency in the formation of the new system; private circumstances of individuals; their happiness and prosperity, after all, I shall be satisfied with seeing, if it shall be adopted with a prudent depend principally upon their own exertions. We are hardly recovered from a administration. Indeed I am so much convinced of the truth of Pope’s maxim, long and distressing war: The farmers, fishermen, &c. have not fully repaired the that “That which is best administered is best,” that I am much inclined to waste made by it. Industry and frugality are again assuming their proper station. subscribe to it from experience. I am not disposed to unreasonably contend Private debts are lessened, and public debts incurred by the war have been, by about forms. I know our situation is critical, and it behooves us to make the best various ways, diminished; and the public lands have now become a productive of it. A federal government of some sort is necessary. We have suffered the source for diminishing them much more. I know uneasy men, who with very present to languish; and whether the confederation was capable or not originally much to precipitate, do not admit all these facts; but they are facts well known to of answering any valuable purposes, it is now but of little importance. I will pass all men who are thoroughly informed in the affairs of this country. It must, by the men, and states, who have been particularly instrumental in preparing the however, be admitted, that our federal system is defective, and that some of the way for a change, and perhaps, for governments not very favorable to the people state governments are not well administered; but, then, we impute to the at large. A constitution is now presented which we may reject, or which we may defects in our governments many evils and embarrassments which are most accept with or without amendments, and to which point we ought to direct our clearly the result of the late war. We must allow men to conduct on the present exertions is the question. To determine this question with propriety; we must occasion, as on all similar one’s. They will urge a thousand pretenses to answer attentively examine the system itself, and the probable consequences of either their purposes on both sides. When we want a man to change his condition, we step. This I shall endeavor to do, so far as I am able, with candor and fairness; describe it as wretched, miserable, and despised; and draw a pleasing picture of and leave you to decide upon the propriety of my opinions, the weight of my that which we would have him assume. And when we wish the contrary, we reasons, and how far my conclusions are well drawn. Whatever may be the reverse our descriptions. Whenever a clamor is raised, and idle men get to work, conduct of others, on the present occasion, I do not mean hastily and positively it is highly necessary to examine facts carefully, and without unreasonably to decide on the merits of the constitution proposed. I shall be open to suspecting men of falsehood, to examine, and enquire attentively, under what conviction and always disposed to adopt that which, all things considered, shall impressions they act. It is too often the case in political concerns that men state appear to me to be most for the happiness of the community. It must be granted, facts not as they are, but as they wish them to be; and almost every man, by that if men hastily and blindly adopt a system of government, they will as hastily calling to mind past scenes, will find this to be true. and as blindly be led to alter or abolish it; and changes must ensue, one after another, till the peaceable and better part of the community will grow weary Nothing but the passions of ambitious, impatient, or disorderly men, I conceive, with changes, tumults and disorders, and be disposed to accept any government will plunge us into commotions, if time should be taken fully to examine and however despotic, that shall promise stability and firmness. consider the system proposed. Men who feel easy in their circumstances, and such as are not sanguine in their expectations relative to the consequences of The first principal question that occurs, is, Whether, considering our situation, we the proposed change, will remain quiet under the existing governments. Many ought to precipitate the adoption of the proposed constitution? If we remain commercial and monied men, who are uneasy, not without just cause, ought to cool and temperate, we are in no immediate danger of any commotions; we are be respected; and by no means, unreasonably disappointed in their expectations in a state of perfect peace, and in no danger of invasions; the state governments and hopes; but as to those who expect employments under the new constitution; are in the full exercise of their powers; and our governments answer all present as to those weak and ardent men who always expect to be gainers by

19 revolutions, and whose lot it generally is to get out of one difficulty into another, of it, to guard against usurpation, so limited, and checked the powers, that, in they are very little to be regarded; and as to those who designedly avail many respects, they are inadequate to the exigencies of the union. We find, themselves of this weakness and ardor, they are to be despised. It is natural for therefore, members of congress urging alterations in the federal system almost men, who wish to hasten the adoption of a measure, to tell us, now is the crisis- as soon as it was adopted. It was early proposed to vest congress with powers to now is the critical moment which must be seized or all will be lost; and to shut levy an impost, to regulate trade, &c. but such was known to be the caution of the door against free enquiry, whenever conscious the thing presented has the states in parting with power, that the vestment even of these, was proposed defects in it, which time and investigation will probably discover. This has been to be under several checks and limitations. During the war, the general the custom of tyrants, and their dependents in all ages. If it is true, what has confusion, and the introduction of paper money, infused in the minds of people been so often said, that the people of this country cannot change their condition vague ideas respecting government and credit. We expected too much from the for the worse, I presume it still behooves them to endeavor deliberately to return of peace, and of course we have been disappointed. Our governments change it for the better. The fickle and ardent, in any community are the proper have been new and unsettled; and several legislatures, by making tender, tools for establishing despotic government. But it is deliberate and thinking men, suspension, and paper money laws, have given just cause of uneasiness to who must establish and secure governments on free principles. Before they creditors. By these and other causes, several orders of men in the community decide on the plan proposed, they will enquire whether it will probably be a have been prepared, by degrees, for a change of government; and this very blessing or a curse to this people. abuse of power in the legislatures, which in some cases has been charged upon the democratic part of the community, has furnished aristocratical men with those very weapons, and those very means, with which, in great measure, they The present moment discovers a new face in our affairs. Our object has been all are rapidly effecting their favorite object. And should an oppressive government along, to reform our federal system and to strengthen our governments-to be the consequence of the proposed change, prosperity may reproach not only a establish peace, order and justice in the community-but a new object now few overbearing, unprincipled men, but those parties in the states which have presents. The plan of government now proposed is evidently calculated totally to misused their powers. change, in time, our condition as a people. Instead of being thirteen republics, under a federal head, it is clearly designed to make us one consolidated government. Of this, I think, I shall fully convince you, in my following letters on The conduct of several legislatures, touching paper money, and tender laws, has this subject. This consolidation of the states has been the object of several men prepared many honest men for changes in government, which otherwise they in this country for some time past. Whether such a change can ever be effected, would not have thought of-when by the evils, on the one hand, and by the secret in any manner; whether it can be effected without convulsions and civil wars; instigations of artful men, on the other, the minds of men were become whether such a change will not totally destroy the liberties of this country-time sufficiently uneasy, a bold step was taken, which is usually followed by a only can determine. revolution, or a civil war. A general convention for mere commercial purposes was moved for-the authors of this measure saw that the people’s attention was turned solely to the amendment of the federal system; and that, had the idea of To have a just idea of the government before us, and to show that a consolidated a total change been started, probably no state would have appointed members one is the object in view, it is necessary not only to examine the plan, but also its to the convention. The idea of destroying ultimately, the state government, and history, and the politics of its particular friends. forming one consolidated system, could not have been admitted-a convention, therefore, merely for vesting in congress power to regulate trade was proposed. The confederation was formed when great confidence was placed in the This was pleasing to the commercial towns; and the landed people had little or voluntary exertions of individuals, and of the respective states; and the framers no concern about it. September, 1786, a few men from the middle states met at

20 Annapolis, and hastily proposed a convention to be held in May, 1787, for the convention with proper respect-and, at the same time, that we reflect there purpose, generally, of amending the confederation-this was done before the were men of abilities and integrity in it, we must recollect how delegates of Massachusetts, and of the other states arrived-still not a word was disproportionately the democratic and aristocratic parts of the community were said about destroying the old constitution, and making a new one.The states still represented.Perhaps the judicious friends and opposers of the new constitution unsuspecting, and not aware that they were passing the Rubicon, appointed will agree, that it is best to let it rely solely on its own merits, or be condemned members to the new convention, for the sole and express purpose of revising for its own defects. and amending the confederation-and, probably, not one man in ten thousand in the United States, till within these ten or twelve days, had an idea that the old In the first place, I shall premise, that the plan proposed is a plan of ship was to be destroyed, and he put to the alternative of embarking in the new accommodation-and that it is in this way only, and by giving up a part of our ship presented, or of being left in danger of sinking.The States, I believe, opinions, that we can ever expect to obtain a government founded in freedom universally supposed the convention would report alterations in the and compact. This circumstance candid men will always keep in view, in the confederation, which would pass an examination in congress, and after being discussion of this subject. agreed to there, would be confirmed by all the legislatures, or be rejected. Virginia made a very respectable appointment, and placed at the head of it the first man in America. In this appointment there was a mixture of political The plan proposed appears to be partly federal, but principally however, characters; but Pennsylvania appointed principally those men who are esteemed calculated ultimately to make the states one consolidated government. aristocratical. Here the favorite moment for changing the government was evidently discerned by a few men, who seized it with address. Ten other states appointed, and tho- they chose men principally connected with commerce and The first interesting question, therefore suggested, is, how far the states can be the judicial department yet they appointed many good republican characters-had consolidated into one entire government on free principles. In considering this they all attended we should now see, I am persuaded, a better system presented. question extensive objects are to be taken into view, and important changes in The non-attendance of eight or nine men, who were appointed members of the the forms of government to be carefully attended to in all their consequences. convention, I shall ever consider as a very unfortunate event to the United The happiness of the people at large must be the great object with every honest States.-Had they attended, I am pretty clear that the result of the convention statesman, and he will direct every movement to this point. If we are so situated would not have had that strong tendency to aristocracy now discernable in every as a people, as not to be able to enjoy equal happiness and advantages under part of the plan. There would not have been so great an accumulation of powers, one government, the consolidation of the states cannot be admitted. especially as to the internal police of this country in a few hands as the constitution reported proposes to vest in them-the young visionary men, and the There are three different forms of free government under which the United consolidating aristocracy, would have been more restrained than they have States may exist as one nation; and now is, perhaps, the time to determine to been. Eleven states met in the convention, and after four months close attention which we will direct our views. 1. Distinct republics connected under a federal presented the new constitution, to be adopted or rejected by the people. The head. In this case the respective state governments must be the principal uneasy and fickle part of the community may be prepared to receive any form of guardians of the peoples rights, and exclusively regulate their internal police; in government; but I presume the enlightened and substantial part will give any them must rest the balance of government. The congress of the states, or federal constitution presented for their adoption a candid and thorough examination; head, must consist of delegates amenable to, and removable by the respective and silence those designing or empty men, who weakly and rashly attempt to states: This congress must have general directing powers; powers to require men precipitate the adoption of a system of so much importance. We shall view the and monies of the states; to make treaties; peace and war; to direct the

21 operations of armies, &c. Under this federal modification of government, the appear to be improper, is my object. The convention appears to have proposed powers of congress would be rather advisory or recommendatory than coercive. the partial consolidation evidently with a view to collect all powers ultimately, in 2. We may do away the federal state governments, and form or consolidate all the United States into one entire government; and from its views in this respect, the states into one entire government, with one executive, one judiciary, and and from the tenacity of the small states to have an equal vote in the senate, one legislature, consisting of senators and representatives collected from all probably originated the greatest defects in the proposed plan. parts of the union: In this case there would be a complete consolidation of the states. 3. We may consolidate the states as to certain national objects, and leave Independent of the opinions of many great authors, that a free elective them severally distinct independent republics, as to internal police generally. Let government cannot be extended over large territories, a few reflections must the general government consist of an executive, a judiciary, and balanced evince, that one government and general legislation alone never can extend legislature, and its powers extend exclusively to all foreign concerns, causes equal benefits to all parts of the United States: Different laws, customs, and arising on the seas to commerce, imports, armies, navies, Indian affairs, peace opinions exist in the different states, which by a uniform system of laws would be and war, and to a few internal concerns of the community; to the coin, post unreasonably invaded. The United States contain about a million of square miles, offices, weights and measures, a general plan for the militia, to naturalization, and in half a century will, probably, contain ten millions of people; and from the and, perhaps to bankruptcies, leaving the internal police of the community, in center to the extremes is about 800 miles. other respects, exclusively to the state governments; as the administration of justice in all causes arising internally, the laying and collecting of internal taxes, and the forming of the militia according to a general plan prescribed. In this case Before we do away the state governments or adopt measures that will tend to there would be a complete consolidation, quoad certain objects only. abolish them, and to consolidate the states into one entire government several principles should be considered and facts ascertained:-These, and my examination into the essential parts of the proposed plan, I shall pursue in my Touching the first, or federal plan, I do not think much can be said in its favor: next. The sovereignty of the nation, without coercive and efficient powers to collect the strength of it, cannot always be depended on to answer the purposes of government; and in a congress of representatives of foreign states, there must Your’s, &c. necessarily be an unreasonable mixture of powers in the same hands. THE FEDERAL FARMER. As to the second, or complete consolidating plan, it deserves to be carefully considered at this time by every American: If it be impracticable, it is a fatal error to model our governments, directing our views ultimately to it.

The third plan, or partial consolidation, is, in my opinion, the only one that can Federal Farmer II secure the freedom and happiness of this people. I once had some general ideas that the second plan was practicable, but from long attention, and the Dear Sir, proceedings of the convention, I am fully satisfied, that this third plan is the only one we can with safety and propriety proceed upon. Making this the standard to The essential parts of a free and good government are a full and equal point out, with candor and fairness, the parts of the new constitution which representation of the people in the legislature, and the jury trial of the vicinage

22 in the administration of justice a full and equal representation, is that which citizen, on an average, would travel 150 or 200 miles to find this court that, possesses the same interests, feelings, opinions, and views the people however, inferior courts might be properly placed in the different counties, and themselves would were they all assembled a fair representation, therefore, districts of the union, the appellate jurisdiction would be intolerable and should be so regulated, that every order of men in the community, according to expensive. the common course of elections, can have a share in it in order to allow professional men, merchants, traders, farmers, mechanics, &c. to bring a just If it were possible to consolidate the states, and preserve the features of a free proportion of their best informed men respectively into the legislature, the government, still it is evident that the middle states, the parts of the union, representation must be considerably numerous. We have about 200 state about the seat of government, would enjoy great advantages, while the remote senators in the United States, and a less number than that of federal states would experience the many inconveniences of remote provinces. Wealth, representatives cannot, clearly, be a full representation of this people, in the offices, and the benefits of government would collect in the centre: and the affairs of internal taxation and police, were there but one legislature for the extreme states and their principal towns, become much less important. whole union. The representation cannot be equal, or the situation of the people proper for one government only if the extreme parts of the society cannot be represented as fully as the central. It is apparently impracticable that this should There are other considerations which tend to prove that the idea of one be the case in this extensive country it would be impossible to collect a consolidated whole, on free principles, is ill-founded the laws of a free representation of the parts of the country five, six, and seven hundred miles from government rest on the confidence of the people, and operate gently and never the seat of government. can extend their influence very far if they are executed on free principles, about the centre, where the benefits of the government induce the people to support it voluntarily; yet they must be executed on the principles of fear and force in the Under one general government alone, there could be but one judiciary, one extremes. This has been the case with every extensive republic of which we have supreme and a proper number of inferior courts. I think it would be totally any accurate account. impracticable in this case to preserve a due administration of justice, and the real benefits of the jury trial of the vicinage, there are now supreme courts in each state in the union; and a great number of county and other courts subordinate to There are certain unalienable and fundamental rights, which in forming the social each supreme court most of these supreme and inferior courts are itinerant, and compact, ought to be explicitly ascertained and fixed a free and enlightened hold their sessions in different parts every year of their respective states, people, in forming this compact, will not resign all their rights to those who counties and districts with all these moving courts, our citizens, from the vast govern, and they will fix limits to their legislators and rulers, which will soon be extent of the country must travel very considerable distances from home to find plainly seen by those who are governed, as well as by those who govern: and the the place where justice is administered. I am not for bringing justice so near to latter will know they cannot be passed unperceived by the former, and without individuals as to afford them any temptation to engage in law suits; though I giving a general alarm. These rights should be made the basis of every think it one of the greatest benefits in a good government, that each citizen constitution: and if a people be so situated, or have such different opinions that should find a court of justice within a reasonable distance, perhaps, within a they cannot agree in ascertaining and fixing them, it is a very strong argument day’s travel of his home; so that, without great inconveniences and enormous against their attempting to form one entire society, to live under one system of expences, he may have the advantages of his witnesses and jury it would be laws only. I confess, I never thought the people of these states differed impracticable to derive these advantages from one judiciary the one supreme essentially in these respects; they having derived all these rights from one court at most could only set in the centre of the union, and move once a year common source, the British systems; and having in the formation of their state into the centre of the eastern and southern extremes of it and, in this case, each constitutions, discovered that their ideas relative to these rights are very similar.

23 However, it is now said that the states differ so essentially in these respects, and representatives, officers and expences; in these will be nineteen-twentieths of even in the important article of the trial by jury, that when assembled in the representatives of the people; they will have a near connection, and their convention, they can agree to no words by which to establish that trial, or by members an immediate intercourse with the people; and the probability is, that which to ascertain and establish many other of these rights, as fundamental the state governments will possess the confidence of the people, and be articles in the social compact. If so, we proceed to consolidate the states on no considered generally as their immediate guardians. solid basis whatever. The general government will consist of a new species of executive, a small But I do not pay much regard to the reasons given for not bottoming the new senate, and a very small house of representatives. As many citizens will be more constitution on a better bill of rights. I still believe a complete federal bill of rights than three hundred miles from the seat of this government as will be nearer to it, to be very practicable. Nevertheless I acknowledge the proceedings of the its judges and officers cannot be very numerous, without making our convention furnish my mind with many new and strong reasons, against a governments very expensive. Thus will stand the state and the general complete consolidation of the states. They tend to convince me, that it cannot be governments, should the constitution be adopted without any alterations in their carried with propriety very far that the convention have gone much farther in organization; but as to powers, the general government will possess all essential one respect than they found it practicable to go in another; that is, they propose ones, at least on paper, and those of the states a mere shadow of power. And to lodge in the general government very extensive powers, powers nearly, if not therefore, unless the people shall make some great exertions to restore to the altogether, complete and unlimited, over the purse and the sword. But, in its state governments their powers in matters of internal police; as the powers to organization, they furnish the strongest proof that the proper limbs, or parts of a lay and collect, exclusively, internal taxes, to govern the militia, and to hold the government, to support and execute those powers on proper principles (or in decisions of their own judicial courts upon their own laws final, the balance which they can be safely lodged) cannot be formed. These powers must be cannot possibly continue long; but the state governments must be annihilated, or lodged somewhere in every society; but then they should be lodged where the continue to exist for no purpose. strength and guardians of the people are collected. They can be wielded, or safely used, in a free country only by an able executive and judiciary, a It is however to be observed, that many of the essential powers given the respectable senate, and a secure, full, and equal representation of the people. I national government are not exclusively given; and the general government may think the principles I have premised or brought into view, are well founded I have prudence enough to forbear the exercise of those which may still be think they will not be denied by any fair reasoner. It is in connection with these, exercised by the respective states. But this cannot justify the impropriety of and other solid principles, we are to examine the constitution. It is not a few giving powers, the exercise of which prudent men will not attempt, and democratic phrases, or a few well formed features, that will prove its merits; or a imprudent men will, or probably can, exercise only in a manner destructive of few small omissions that will produce its rejection among men of sense; they will free government. The general government, organized as it is, may be adequate enquire what are the essential powers in a community, and what are nominal to many valuable objects, and be able to carry its laws into execution on proper ones; where and how the essential powers shall be lodged to secure principles in several cases; but I think its warmest friends will not contend, that it government, and to secure true liberty. can carry all the powers proposed to be lodged in it into effect, without calling to its aid a military force, which must very soon destroy all elective governments in In examining the proposed constitution carefully, we must clearly perceive an the country, produce anarchy, or establish despotism. Though we cannot have unnatural separation of these powers from the substantial representation of the now a complete idea of what will be the operations of the proposed system, we people. The state governments will exist, with all their governors, senators, may, allowing things to have their common course, have a very tolerable one.

24 The powers lodged in the general government, if exercised by it, must ultimately this government, you will incline to an arbitrary and odious aristocracy or effect the internal police of the states, as well as external concerns; and there is monarchy the that the president possessed of the power, given him by this frame no reason to expect the numerous state governments, and their connections, will of government differs but very immaterially from the establishment of monarchy be very friendly to the execution of federal laws in those internal affairs, which in Great-Britain, and I warned you to beware of the fallacious resemblance that is hitherto have been under their own immediate management. There is more held out to you by the advocates of this new system between it and your own reason to believe, that the general government, far removed from the people, state governments. and none of its members elected oftener than once in two years, will be forgot or neglected, and its laws in many cases disregarded, unless a multitude of officers And here I cannot help remarking, that inexplicitness seems to pervade this and military force be continually kept in view, and employed to enforce the whole political fabric: certainty in political compacts, which Mr. Coke calls the execution of the laws, and to make the government feared and respected. No mother and nurse of repose and quietness, the want of which induced men to position can be truer than this, That in this country either neglected laws, or a engage in political society, has ever been held by a wise and free people as military execution of them, must lead to a revolution, and to the destruction of essential to their security; as, on the one hand it fixes barriers which the freedom. Neglected laws must first lead to anarchy and confusion; and a military ambitious and tyrannically disposed magistrate dare not overleap, and on the execution of laws is only a shorter way to the same point despotic government. other, becomes a wall of safety to the community–otherwise stipulations between the governors and governed are nugatory; and you might as well Your’s, &c deposit the important powers of legislation and execution in one or a few and permit them to govern according to their disposition and will; but the world is too full of examples, which prove that to live by one man’s will became the cause

of all men’s misery. Before the existence of express political compacts it was reasonably implied that the magistrate should govern with wisdom and Justice, Cato V but mere implication was too feeble to restrain the unbridled ambition of a bad man, or afford security against negligence, cruelty, or any other defect of mind. It To the Citizens of the State of New York, is alledged that the opinions and manners of the people of America, are capable to resist and prevent an extension of prerogative or oppression; but you must recollect that opinion and manners are mutable, and may not always be a In my last number I endeavored to prove that the language of the article relative permanent obstruction against the encroachments of government; that the to the establishment of the executive of this new government was vague and progress of a commercial society begets luxury, the parent of inequality, the foe inexplicit, that the great powers of the President, connected with his duration in to virtue, and the enemy to restraint; and that ambition and voluptuousness office would lead to oppression and ruin. That he would be governed by favorites aided by flattery, will teach magistrates, where limits are not explicitly fixed to and flatterers, or that a dangerous council would be collected from the great have separate and distinct interests from the people, besides it will not be officers of state;—that the ten miles square, if the remarks of one of the denied that government assimilates the manners and opinions of the community wisest men, drawn from the experience of mankind, may be credited, would be to it. Therefore, a general presumption that rulers will govern well is not a the asylum of the base, idle, avaricious and ambitious, and that the court would sufficient security.–You are then under a sacred obligation to provide for the possess a language and manners different from yours; that a vice president is as safety of your posterity, and would you now basely desert their interests, when unnecessary, as he is dangerous in his influence–that the president cannot by a small share of prudence you may transmit to them a beautiful political represent you because he is not of your own immediate choice, that if you adopt patrimony, that will prevent the necessity of their travelling through seas of

25 blood to obtain that, which your wisdom might have secured:–It is a duty you But with respect to the first objection, it may be remarked that a well digested owe likewise to your own reputation, for you have a great name to lose; you are democracy has this advantage over all others, to wit, that it affords to many the characterised as cautious, prudent and jealous in politics; whence is it therefore, opportunity to be advanced to the supreme command, and the honors they that you are about to precipitate yourselves into a sea of uncertainty, and adopt thereby enjoy fill them with a desire of rendering themselves worthy of them; a system so vague, and which has discarded so many of your valuable rights.–Is it hence this desire becomes part of their education, is matured m manhood, and because you do not believe that an American can be a tyrant? If this be the case produces an ardent affection for their country, and it is the opinion of the great you rest on a weak basis; Americans are like other men in similar situations, Sidney, and Montesquieu that this is in a great measure produced by annual when the manners and opinions of the community are changed by the causes I election of magistrates. mentioned before, and your political compact inexplicit, your posterity will find that great power connected with ambition, luxury, and flattery, will as readily If annual elections were to exist in this government, and learning and produce a Caesar, Caligula, Nero, and Domitian in America, as the same causes information to become more prevalent, you never will want men to execute did in the Roman empire. whatever you could design–Sidney observes that a well governed state is as fruitful to all good purposes as the seven headed serpent is said to have been in But the next thing to be considered in conformity to my plan, is the first article of evil; when one head is cut off, many rise up in the place of it. He remarks further, this new government, which comprises the erection of the house of that it was also thought, that free cities by frequent elections of magistrates representatives and senate, and prescribes their various powers and objects of became nurseries of great and able men, every man endeavoring to excel others, legislation. The most general objections to the first article, are that biennial that he might be advanced to the honor he had no other title to, than what might elections for representatives are a departure from the safe democratical arise from his merit, or reputation, but the framers of this perfect government, as principles of annual ones–that the number of representatives are too few; that it is called, have departed from this democratical principle, and established bi- the apportionment and principles of increase are unjust; that no attention has ennial elections for the house of representatives, who are to be chosen by the been paid to either the numbers or property in each state in forming the senate; people, and sextennial for the senate, who are to be chosen by the legislatures of that the mode in which they are appointed and their duration, will lead to the the different states, and have given to the executive the unprecedented power establishment of an aristocracy; that the senate and president are improperly of making temporary senators, in case of vacancies, by resignation or otherwise, connected, both as to appointments, and the making of treaties, which are to and so far forth establishing a precedent for virtual representation (though in become the supreme law of the land; that the judicial in some measure, to wit, fact their original appointment is virtual) thereby influencing the choice of the as to the trial of impeachments, is placed in the senate, a branch of the legislatures, or if they should not be so complaisant as to conform to his legislative, and some times a branch of the executive: that Congress have the appointment–offence will be given to the executive and the temporary members improper power of making or altering the regulations prescribed by the different will appear ridiculous by rejection; this temporary member, during his time of legislatures, respecting the time, place, and manner of holding elections for appointment, will of course act by a power derived from the executive, and for, representatives, and the time and manner of choosing senators; that standing and under his immediate influence. armies may be established, and appropriation of money made for their support for two years; that the militia of the most remote state may be marched into It is a very important objection to this government, that the representation those states situated at the opposite extreme of this continent; that the slave consists of so few; too few to resist the influence of corruption, and the trade is, to all intents and purposes permanently established; and a slavish temptation to treachery, against which all governments ought to take capitation, or poll-tax, may at any time be levied–these are some of the many precautions–how guarded you have been on this head, in your own state evils that will attend the adoption of this government.

26 constitution, and yet the number of senators and representatives proposed for this vast continent, does not equal those of your own state; how great the The Virginia Plan disparity, if you compare them with the aggregate numbers in the United States. The history of representation in England, from which we have taken our model of 1. Resolved, That the articles of the confederation ought to be so corrected and legislation, is briefly this: before the institution of legislating by deputies, the enlarged, as to accomplish the objects proposed by their institution, namely, whole free part of the community usually met for that purpose; when this common defence, security of liberty, and general welfare. became impossible by the increase of numbers the community was divided into districts, from each of which was sent such a number of deputies as was a complete representation of the various numbers and orders of citizens within 2. Resolved, therefore, that the right of suffrage, in the national legislature, ought them; but can it be asserted with truth, that six men can be a complete and full to be proportioned to the quotas of contribution, or to the number of free representation of the numbers and various orders of the people in this state? inhabitants, as the one or the other may seem best, in different cases. Another thing [that] may be suggested against the small number of representatives is, that but few of you will have the chance of sharing even in this 3. Resolved, That the national legislature ought to consist of two branches. branch of the legislature; and that the choice will be confined to a very few; the more complete it is, the better will your interests be preserved, and the greater the opportunity you will have to participate in government, one of the principal 4. Resolved, That the members of the first branch of the national legislature securities of a free people; but this subject has been so ably and fully treated by a ought to be elected by the people of the several States, every ______for the writer under the signature of Brutus, that I shall content myself with referring term of ______to be of the age of years at least; to receive liberal stipends, by you to him thereon, reserving further observations on the other objections I have which they may be compensated for the devotion of their time to public service; mentioned, for my future numbers. to be ineligible to any office established by a particular State, or under the authority of the United States (except those peculiarly belonging to the functions of the first branch) during the term of service and for the space of ______after CATO its expiration; to be incapable of reselection for the space of _____ after the expiration of their term of service,; and to be subject to recall.

5. Resolved, That the members of the second branch of the national legislature ought to be elected by those of the first, out of a proper number of persons nominated by the individual legislatures; to be of ______the age of years, at least; to hold their offices for a term sufficient to ensure their independency; to receive liberal stipends, by which they may be compensated for the devotion of their time to the public service; and to be ineligible to any office established by a particular State, or under the authority of the United States, (except those peculiarly belonging to the functions of the second branch) during the term of service; and for the space of ______after the expiration thereof.

27 6. Resolved, That each branch ought to possess the right of originating acts; that of the national revenue; impeachments of any national officer; and questions the national legislature ought to be empowered to enjoy the legislative right which involve the national peace or harmony. vested in congress, by the confederation; and moreover to legislate in all cases to which the separate States are incompetent, or in which the harmony of the 10. Resolved, That provision ought to be made for the admission of States, United States may be interrupted by the exercise of individual legislation; to lawfully arising within the limits of the United States, whether from a voluntary negative all laws passed by the several States, contravening in the opinion of the junction of government and territory, or otherwise, with the consent of a national legislature, the articles of union, or any treaty subsisting under the number of voices in the national legislature less than the whole. authority of the union; and to call forth the force of the union against any member of the union failing to fulfill its duty under the articles thereof. 11. Resolved, That a republican government, and the territory of each State (except in the instance of a voluntary junction of government and territory) 7. Resolved, That a national executive be instituted, to be chosen by the national ought to be guaranteed by the United States to each State. legislature for the term of ______years, to receive punctually, at stated times, a fixed compensation for the services rendered, in which no increase or diminution shall be made, so as to affect the magistracy existing at the time of the increase 12. Resolved, That provision ought to be made for the continuance of a congress, or diminution; to be ineligible a second time; and that, besides a general and their authorities and privileges, until a given day, after the reform of the authority to execute the national laws, it ought to enjoy the executive rights articles of union shall be adopted, and for the completion of all their vested in congress by the confederation. engagements.

8. Resolved, That the executive, and a convenient number of the national 13. That provision ought to be made for the amendment of the articles of union judiciary, ought to compose a council of revision, with authority to examine every whensoever it shall seem necessary; and that the assent of the national act of the national legislature, before it shall operate, and every act of a legislature ought not to be required thereto. particular legislature before a negative thereon shall be final; and that the dissent of the said council shall amount to a rejection, unless the act of the national legislature be again passed, or that of a particular legislature be again 14. Resolved, That the legislative, executive, and judiciary powers within the negatived by _____ of the members of each branch. several States, ought to be bound by oath to support the articles of union.

9. Resolved, That a national judiciary be established to hold their offices during 15. Resolved, That the amendments, which shall be offered to the confederation good behavior, and to receive punctually, at stated times, fixed compensations by the convention, ought, at a proper time or times, after the approbation of for their services, in which no increase or diminution shall be made, so as to congress, to be submitted to an assembly or assemblies of representatives, affect the person actually in office at the time of such increase or recommended by the several legislatures, to be expressly chosen by the people diminution— That the jurisdiction of the inferior tribunals shall be, to hear to consider and decide thereon. and determine, in the first instance, and of the supreme tribunal to hear and determine, in the dernier resort, all piracies and felonies on the high seas; captures from an enemy; cases in which foreigners, or citizens of other States, applying to such jurisdictions, may be interested, or which respect the collection

28 congress shall be exercised without the consent of at least ____ States, and in The New Jersey Plan that proportion, if the number of confederated States should be hereafter increased or diminished. 1. Resolved, that the Articles of Confederation ought to be so revised, corrected, and enlarged as to render the federal Constitution adequate to the exigencies of 4. Resolved, that the United States in Congress be authorized to elect a federal Government, and the preservation of the Union. Executive to consist of 0000000 persons, to continue in office for the Term of 00000000 years; to receive punctually at stated times a fixed compensation for 2. Resolved, that in addition to the Powers vested in the United States in their services in which no increase or diminution shall be made so as to affect the Congress by the present existing Articles of Confederation, they be authorized to persons composing the Executive at the time of such increase or diminution; to pass Acts for raising a Revenue by levying a duty or duties on all goods or be paid out of the Federal Treasury; to be incapable of holding any other office or merchandise of foreign growth or manufacture, imported into any part of the appointment during their time of service, and for ____ years thereafter; to be United States,—by Stamps on Paper vellum or parchment,—and by a postage on ineligible a second time, and removable by Congress on application by a majority all letters or packages passing through the general Post Office, to be applied to of the Executives of the several States; that the Executive, besides their general such federal purposes as they shall deem proper and expedient; to make rules authority to execute the federal Acts, ought to appoint all federal officers not and regulations for the collection thereof, and the same from time to time, to otherwise provided for, and to direct all military operations; provided that none of the persons composing the federal Executive shall on any occasion take alter and amend in such manner as they shall think proper: to pass Acts for the command of any troops so as personally to conduct any enterprise as General or regulation of trade and commerce, as well with foreign Nations, as with each in any other capacity. other; provided that all punishments, fines, forfeitures and penalties to be incurred for contravening such acts, rules, and regulations shall be adjudged by the common Law Judiciarys of the State in which any offence contrary to the true 5. Resolved, that a federal Judiciary be established, to consist of a supreme intent and mean-ing of such acts and regulations shall have been committed or Tribunal, the Judges of which to be appointed by the Executive, and to hold their perpetrated; with liberty of commencing in the first instance all suits and Offices during good behaviour, to receive punctually at stated times a fixed prosecutions for that purpose in the superior Common Law Judiciary of such compensation for their services, in which no increase or diminution shall be State, subject nevertheless, for the correction of all errors, both in law and fact, made so as to affect the persons actually in office at the time of such increase or in rendering judgment, to an appeal to the Judiciary of the United States. diminution;—That the Judiciary so established shall have authority to hear and determine in the first instance on all impeachments of federal officers, and by 3. Resolved, that whenever requisitions shall be necessary, instead of the rule for way of appeal in the dernier resort in all cases touching the rights of making requisition mentioned in the Articles of Confederation, the United States Ambassadors, in all cases of captures from an enemy, in all cases of piracies and in Congress be authorized to make such requisitions in proportion to the whole felonies on the high Seas, in all cases in which foreigners may be interested in the number of white and other free citizens and Inhabitants of every age, sex and construction of any treaty or treaties, or which may arise on any of the Acts for condition, including those bound to servitude for a term of years, and three fifths regulation of trade, or the collection of the federal Revenue: that none of the of all other persons not comprehended in the foregoing description—(except Judiciary shall during the time they remain in Office be capable of receiving or holding any other Office or appointment during their time of service, or for Indians not paying Taxes); that if such requisitions be not complied with, in the time to be specified therein, to direct the collection thereof in the non-complying ______thereafter. States and for that purpose to devise and pass Acts directing and authorizing the same; provided that none of the powers hereby vested in the United States in

29 6. Resolved, that all Acts of the United States in Congress made by virtue and in ‘Democracy and the Constitution’ Gordon S. Wood in How Democratic is the pursuance of the powers hereby vested in them, and all Treaties made and Constitution? Ed. William Schambra and Robert Goldwin ratified under the authority of the United States, shall be the supreme law of the respective States, as far as those Acts or Treaties shall relate to the said States or their Citizens, and that the Judiciary of the several States shall be bound thereby in their decisions, anything in the respective laws of the Individual States to the contrary notwithstanding; and that if any State, or any body of men in any State, 1 shall oppose or prevent the carrying into execution such acts or treaties, the Democracy and the Constitution federal Executive shall be authorized to call forth the power of the Confederated Gordon S. Wood States, or so much thereof as may be necessary to enforce and compel an obedience to such Acts, or an Observance of such Treaties.

7. Resolved, that provision be made for the admission of new States into the Union. How democratic is the Constitution? is a loaded question. It implies that the fundamental document of our national political system may be at odds with our democratic political faith. Yet, this was the central 8. Resolved, that the Rule for naturalization ought to be the same in every State. question asked at the time the Constitution was framed, and it is a question that Americans have raised ever since. Throughout most of the nineteenth century, the Constitution's 9. Resolved, that a Citizen of one State committing an offence in another State of relation to democracy was usually taken for granted. In George Bancroft's view, the Constitution was the providential expression the Union, shall be deemed guilty of the same offence, as if it had been of the American people's progress toward democracy. To be sure, committed by a Citizen of the State in which the Offence was committed. antebellum Southerners tried to make the Constitution their own, and some Northern abolitionists thought that the Constitution's recogni- tion of slavery made the Constitution an abomination. The Civil War and several amendments to the Constitution cut off any serious questioning of the Constitution's democratic character. It was left to the Progressive Era at the end of the nineteenth century and beginning of the twentieth century to open up the origins of the Constitution to critical scholarly investigation and to mount a mas- sive challenge to the identity between the Constitution and democracy. During the last three decades of the nineteenth century, the Supreme Court declared unconstitutional a number of state laws attempting economic and social reforms. These decisions, which seemed to be frustrating the ability of the people to carry out their wishes, provoked a far-reaching debate over judicial review, the nature of the Constitution, and its relation to democracy. By the early twentieth century, this debate had generated more books and documents on the Constitution and its origins than at any other time in our history. While this controversy led some scholars to stress the importance of the rule of fundamental and natural law in

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30 HOW DEMOCRATIC IS THE CONSTITUTION? GORDON S. WOOD

American political life, others sought to probe beneath the surface Since World War II this Beardian or Progressive interpretation of public events and to understand judicial decisions, legislation, of the Constitution has been challenged in a variety of ways, and and constitutions not as the creations of abstract reasoning but as Beard's book itself has been torn to shreds. Yet the Progressive the products of the political process and interacting economic and generation's historiographical achievement still casts a long shadow social interests.1 over much current writing about the origins of the Constitution. The The common result of these different scholarly efforts-both issue of the Constitution's relation to democracy, once opened up by the insistence on the importance of natural rights and higher law in Beard and others, can no longer be taken for granted. In reaction American thought and the emphasis on underlying social and eco- to a half century of doubt about the democratic character of the nomic interests in shaping law and political institutions-was to Constitution, scholars during the past three decades have felt con- separate the Constitution from popular will and to make it some- tinually pressed to bring the Constitution within the democratic thing other than the natural expression of democracy. It became fold. They have done so largely by expanding our conception of increasingly evident that the Constitution was not identical with democracy to the point where checks and balances, judicial review, what "the people" wanted but was designed through its checks and and the concern for minority rights and individual liberties that once balances, difficulty of amendment, and judicial review to thwart seemed antithetical to democracy have become as democratic as the these popular desires. Those scholars such as Edward S. Corwin majority will of popularly elected legislatures. Through this kind of and Charles G. Haines, who stressed the natural rights and higher- expansion in the meaning of democracy, the Constitution has become law background of American thinking, tried to put the best face for many scholars more democratic than anything it was designed to they could on the undemocratic character of the Constitution.2 Others, replace. following the lead of Max Farrand, attempted to blur the issue of democracy by emphasizing the pragmatic character of the Constitu- The Debate over the Constitution tion as "a bundle of compromises" designed to correct specific de- fects in the Articles of Confederation.:! Many other scholars, es- The historical debate over the Constitution and democracy continues, pecially after the explosive publication of Charles Beard's An Eco- for the debate is rooted in the original controversy that surrounded nomic Interpretation of the Constitution in 1913, concluded outright the creation of the Constitution in 1787-1788. In fact, all the his- that the Constitution was an aristocratic document, created by reac- torical debates over the democratic nature of the Constitution are tionary mercantile and creditor elements frightened by the popular essentially reverberations of this original dispute at the time of the agrarian tendencies of the Revolution and calculated to limit, not framing. The creators and supporters of the Constitution, the Fed- promote, democracy. With Beard's book, certainly the most influen- eralists as they called themselves, argued strenuously that the Consti- tial history book ever written in America, the image of the Constitu- tution was a fulfillment, not a repudiation, of the Revolution and that tion could never again be quite the same.4 it provided for a thoroughly republican and popular government. The opponents of the Constitution, the Antifederalists, charged that 1 For a summary of this literature, see H. Hale Bellot, "The Literature of the Last Half Century on the Constitutional History of the United States," Royal Historical the Constitution was a denial of the principles of 1776 and that it Society, Transactions, 5th seT., vol. 7 (1957), pp. 159-82. was an aristocratic document calculated to create an undemocratic 2 See Edward S. Corwin, The Doctrine of Judicial Review, Its Legal and Historical government benefiting the few at the expense of the many. It is Basis, and Other Essays (Princeton: Princeton University Press, 1914) andC. G. Haines, The American Doctrine of Judicial Supremacy (New York: Macmillan, essentially these two contrasting viewpoints of 1787-1788 that have 1914). been echoing through our historical writing on the origins of the 3 Max Farrand, The Framing of the Constitution of the United States (New Constitution ever since. We are forever trying to decide in these Haven: Yale University Press, 1913). debates who was more right in their interpretation of the Constitu- 4 Before Beard's book, the most important work arguing the undemocratic char- acter of the Constitution was J. Allen Smith, The Spirit of American Govern- tion, the Federalists or the Antifederalists. ment, A Study of the Constitution: Its Origin, Influence and Relation to Democracy Cast in this way, the question will inevitably force us to take (New York: Macmillan, 1907). For a constitutional historian's shrewd discussion sides and argue that either the Federalists or the Antifederalists had of the issue on the eve of the publication of Beard's book, see Andrew C. McLaughlin, "Democracy and the Constitution," American Antiquarian Society, a more "correct" view of the "real" Constitution. But there was and Proceedings, n.s., vol. 22 (1912), pp. 293-320. is no "real" Constitution against which we can measure the con-

2 3

31 HOW DEMOCRATIC IS THE CONSTITUTION? GORDON S. WOOD flicting statements of the Federalists and Antifederalists. The only even the most fervent advocates in 1776-1777 of a stronger con- Constitution that existed in 1787-1788 was the one men at the time federation, like John Dickinson, never envisioned a national govern- believed in and described; and these beliefs and descriptions were ment like that of 1787. For most revolutionaries, the confederation very different." Instead of asking whether the Constitution was demo- was a simple political response to the need for union against Britain. cratic, we should be asking what the historical participants were up They were interested less in creating an enduring nation-state than to and why they described the Constitution in such different ways. in legitimizing the resistance movement and the activity of the When the questions are posed in this way, the answers will show Continental Congress. At most, they wanted a strong union of that neither the Federalists nor the Antifederalists were more right the separate states that would have substantial authority over mat- in their interpretation of the Constitution; both had good reason to ters of general concern such as war, trade, interstate disputes, and think as they did about the Constitution. western lands. However substantial such a confederation might be, From the vantage point of 1776, which was generally the per- it was still to be a confederation--a union of separate and remark- spective of the Antifederalists, the Constitution of 1787 looms as an ably independent states. The actual Articles of Confederation that extraordinary, even unbelievable, creation. None of the revolutionary emerged from the congressional discussions of 1776-1777 were leaders at the time of independence even contemplated, let alone sug- weaker than some had wanted, but this limited union represented gested, the possibility of erecting over all America such a strong, the views of most Americans at the time.G overarching national government as the Constitution provided. Such Given these American fears of far-removed central power, ex- a powerful central government operating directly on individuals plaining the adoption of the Constitution in 1787-1788 becomes was diametrically opposed to all the principles of the Revolution. quite a problem. Indeed, the formation of the Constitution seems More than anything else, the Revolution intended to reduce the over- to be such an unexpected and unprecedented event that historians weening power of the government, particularly far-removed central of all persuasions have felt compelled to rely on some version of a government associated with the British imperial system. Any revolu- "great men" explanation to account for it. Some have followed tionary in 1776 suggesting a national government resembling the Beard and stressed the conspiratorial character of the movement one eventually created by the Constitution of 1787 would have been for the Constitution by a dynamic minority of nationalists who "con- branded a lunatic or, worse, a British monarchist. jured up" a crisis.' Others writing against a Beardian view have also emphasized the youthful energy and political effectiveness of The Articles of Confederation a small group of farsighted Federalist leaders. In fact, the adulation Of course, some Americans in 1776 wanted a stronger central gov- of recent historians for the Federalists' elan and dash has become so ernment than that provided by the Articles of Confederation. But great-one called them "giants in the earth"-that we may be re- " The assertion that "there was and is no 'real' Constitution" is open to misunder- turning to the nineteenth-century image of the Founding Fathers standing and criticism, which I would like to forestall. I am arguing that there as demigods.s Apparently the formation of the Constitution is so was not in 1787 a single "true" or "correct" interpretation of the Constitution. The Constitution was what people thought it was; hence, the disagreement over IJ For the most recent and most persuasive account of the Confederation Congress, its meaning. The continuing struggle over the meaning of the Constitution, see Jack N. Rakove, The Beginnings of National Politics: An Interpretative exemplified in the essays in this volume, only substantiates my point. That History of the Continental Congress (New York: Knopf, 1979). struggle will never end because the "true" meaning, the "true reality" of the Constitution will never be finallv discovered; no such animal exists. 7 See E. James Ferguson, The Power of the Purse: A History of American Public It should not be thought that" I am saying we haven't had a Constitution at Finance, 1776-1790 (Chapel Hill: University of North Carolina Press, 1961), p. 337; all to debate. The Constitution is a very different thing from what it was in Merrill Jensen, The New Nation: A History of the United States, 1781-1789 (New 1787, and not just because of the amendments. It can be argued that many, if York: Knopf, 1950), pp. 348-49; and Jackson Turner Main, The Antifederalists: not all, of these changes and additions are "illegitimate," but, if the political Critics of the Constitution, 1781-1788 (Chapel Hill: University of North Carolina culture generally comes to hold them as legitimate, then for most people this Press, 1961), pp. 177-78. changed Constitution becomes the "real" Constitution. It is because of this 8 See Stanley Elkins and Eric McKitrick, "The Founding Fathers: Young Men of process of constant accretion and change that we have continuous arguments the Revolution," Political Science Quarterly, vol. 76 (1961), pp. 181-216; John P. among ourselves over the meaning of the Constitution. The participants in the Roche, "The Founding Fathers: A Reform Caucus in Action," American Political struggle obviously have to believe that their particular contesting interpretations Science Review, vol. 55 (1961), pp. 799-816; Robert A. Rutland, Ordeal of the are more "true" or "right" than others. Constitution: The Antifederalists and the Ratification Struggle of 1787-1788

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32 HOW DEMOCRATIC IS THE CONSTITUTION? GORDON S. WOOD inexplicable that it cannot be accounted for except in terms of the The Problem of Democracy in the States heroic actions of a few great men. Of course, many historians have described the accumulating Something besides the obvious debility of the confederation lay behind problems of the confederation in order to explain the writing of the such a radical political transformation. Only political conditions in Constitution. Although no one today endorses John Fiske's view the states--political conditions of the most threatening kind-ean that the decade of the 1780s was "the most critical moment in all ultimately explain the creation of the Constitution. There in the the history of the American people"-a time of near chaos and states, the political entities the revolutionaries cared about most, the anarchy-historians have pointed out that the confederation was problem of democracy was revealed; and it is that problem the Con- suffering from a number of visible weaknesses.9 In international af- stitution sought to solve. fairs, the confederation was hard-pressed to maintain its territorial The state republics created in 1776 were at the heart of the integrity. Great Britain refused to vacate the Northwest posts; Spain Revolution. Winning the war and forming the Articles of Confedera- claimed a huge chunk of the Southwest and closed the Mississippi tion were crucial, no doubt, but creating new state constitutions, as to traffic. The Barbary pirates were seizing American ships and Thomas Jefferson said in 1776, was "the whole object of the present crews because Congress had no money to pay the necessary tributes. controversy." In their new commonwealths, Americans aimed to test Lacking any taxing power, the United States government could not all that they had learned about tyranny and liberty from their colonial even pay the interest on its debt to its creditors at home or abroad. experience and their debate with Britain in the 1760s and 1770s. Congress had no authority to regulate commerce and thus had no Republicanism and popular government in America, and indeed in way of forcing any openings in the European mercantile empires the world, would live or die by what happened in these individual for American traders. Efforts to get even limited taxing and com- states.10 mercial regulatory powers foundered on the requirements for the In 1776 Americans as yet did not call their new governments unanimous consent of all the states for amendment of the Articles democracies; it is important for our understanding of the Con- of Confederation. stitution's relationship to democracy to know why they did not. Pressing and serious as these problems of the confederation It is true that the new state governments were very popular, more were, they cannot by themselves explain the formation of the Con- popular surely than any other government in the eighteenth-century stitution. The Constitution created a national government whose world. In the American states, a greater proportion of people could strength and charader were out of proportion to the obvious and vote and a greater proportion of government officials were elected acknowledged weaknesses of the confederation. Indeed, by 1787 than in any other country. The most popular part of the state gov- almost everyone recognized the debility of the Articles and was pre- ernments, the lower houses of the legislatures, were given an extraor- pared to grant additional powers to Congress. They were not pre- dinary amount of power, including many prerogatives, like the pared for what came out of the Philadelphia Convention of 1787- granting of pardons and the appointment of judges, that were tradi- a revolutionary transformation of the entire American political system tionally exercised only by magisterial authority in other countries. including a radical diminishing of the independence and power of the Still, these new governments were not called democracies because, as the eighteenth century commonly understood the term, they were states. This was no invigorated league of states that the Constitution not democracies. created. This totally new and extraordinarily powerful national gov- Americans in 1776 thought of democracy in a traditionally classi- ernment operating directly on individuals went well beyond what cal manner. Democracy was not what it has become for us-a gen- the difficulties of credit and commerce and the humiliations in foreign eral set of values embracing popular government, equality, and liberty. affairs demanded in additional central powers. It was still a rather technical term of political science used much as Aristotle had used it. It meant literally government by the people, (Norman: University of Oklahoma Press, 1966); and Forrest McDonald, E Pluri- bus Unum: The Formation of the American Republic, 1776-1790 (Boston: Houghton Mifflin, 1965), p. 236. In For the importance of the state constitutions to the Revolution of 1776, see 9 John Fiske, The Critical Period of American History (New York: Houghton Gordon S. Wood, The Creation of the American Republic, 1776-1787 (Chapel Mifflin, 1888), p. 55. Hill: University of North Carolina Press, 1969), pp. 127-255.

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33 HOW DEMOCRATIC IS THE CONSTITUTION? GORDON S. WOOD referring in the strictest sense to political gatherings of the people instantly thinks how it will affect his constituents." 12 In short, the in person in town meetings and the like. Since such pure democracy representatives of the people-the democratic parts of the mixed was impractical for most governmental affairs, Americans recog- constitutions-were responding too readily to the wishes of the people nized as democratic the modern refinement of representation, which they represented. When the federalists in 1787 came to complain allowed elected agents to participate in government in place of the of "the turbulence and follies of democracy," this is what they people. Representation was not yet equated, as it is now, with mere meant. 18 popular election. The representatives of the people were exclusively American leaders tried several approaches to these democratic those elected members of the lower houses of the legislatures-the abuses in the states. Some attempted to reform the revolutionary houses of representatives. The officials of the other branches of the state constitutions by reducing the power of the popular assemblies government-whether governors or senators-even though elected and enhancing that of the governors and senates. The Massachusetts by the people, were not yet considered to be in any way "representa- constitution of 1780 embodied many of these second thoughts, and tives" of the people. They stood "for" the people but were not "of" during the 1780s other states sought to remake their constitutions in them. Thus, any state that possessed a governor and a senate, al- Massachusetts' image. Others tried to use the judiciary against what though popularly elected, could not be a democracy. Americans in were thought to be unconstitutional acts of the legislatures; there 1776 therefore saw themselves creating mixed republics, with the were scattered and rudimentary expressions of what would become democratic element, the lower assemblies, playing a very dominant judicial review. Many leaders, however, thought such judicial over- role. turnings of law enacted by popularly elected legislatures smacked of By the 1780s, many American leaders realized that these state despotism and were contrary to republican government. assemblies were abusing their extraordinary powers. The annually By the mid-1780s, men were increasingly disillusioned with elected legislatures, beset by hosts of various interests, were constantly these reforms and devices at the state level. Finally, when even changing their membership and were making legislation chaotic. As Massachusetts with its supposedly model constitution experienced James Madison pointed out, more laws were enacted by the states popular excesses, including Shays' Rebellion and the subsequent in the decade following independence than in the entire colonial pe- legislative "tyranny" of Shaysite sympathizers, many leaders were riod. Many of these laws were unjust: paper money acts, stay laws, ready to shift the arena of constitutional change from the states to and other forms of debtor relief legislation hurt various creditor groups the nation. It seemed to many that only by modifying the structure in the society and violated individual property rights. To some, the of the central government could America find an answer to its demo- legislatures seemed more frightening than the former royal governors. cratically caused problems within the states. It did not matter that the legislators were supposedly the representa- What happened in 1786--1787, in brief, was the coalescing of tives of the people and annually elected by them. "173 despots would two different and hitherto separate reform movements. The previously surely be as oppressive as one," wrote Jefferson. IIAn elective des- frustrated attempts of various groups-public creditors, merchants, potism was not the government we fought for." 11 and others-to amend the Articles of Confederation were reinforced These legislative abuses, many American leaders believed, flowed by the efforts of those alarmed by majoritarian tyranny within the from too much democracy. The legislators were too susceptible to states. Heightened concern with the implications of state politics various narrow and parochial interests and had become merely spokes- overwhelmed the state particularism and the fear of far-removed men for their local constituents. IIA spirit of locality" in the state central power that had prevented earlier reform of the Articles of legislatures, said Madison, was destroying lithe aggregate interests Confederation and forced a recasting of the terms of the problem of the Community," and this localist spirit was "inseparable" from 12 Madison's observations on Jefferson's draft of a constitution for Virginia elections by small districts or towns. Each representative, said Ezra (1788), Julian P. Boyd, ed., The Papers of Thomas Jefferson (Princeton: Prince- ton University Press, 1950-), vol. 6, pp. 308-09; Ezra Stiles, "The United States Stiles, president of Yale, was concerned only with the special interests Elevated to Glory and Honor ..." (New Haven, 1783), in John W. Thornton, ed., of his electors. At the reading of a bill in the legislature, "every one The Pulpit of the American Revolution . .. (Boston: Gould and Lincoln, 1860), p.420. 11 Thomas Jefferson, Notes on the State of Virginia, ed. William Peden (Chapel 18 Edmund Randolph in Max Farrand, ed., The Records of the Federal Convention Hill: University of North Carolina Press, 1955), p. 120. (New Haven: Yale University Press, 1937), vol. 1, p. 51.

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34 HOW DEMOCRATIC IS THE CONSTITUTION? GORDON 5. WOOD facing Americans. Since the legislative abuses of the states flowed Although deeply disappointed with the Constitution, Madison from the revolutionary aim of increasing the participation of the and other nationalists aimed to make the best of what they had, a people in government, the very success of the revolutionary experi- greatly enlarged and elevated republic. All scholars now know how ment in popular government was at stake. Thus, changing the cen- ingeniously Madison made theoretical sense of the new national tral government was no longer a matter of standing firm in foreign system. Seizing on David Hume's radical suggestion that a republican affairs or of satisfying particular creditor or mercantile interests. It government might operate better in a large territory than in a small was now a matter, as Madison said, that would "decide forever the one, Madison reversed the traditional assumptions about the appro- fate of republican government." 14 priate size of a republic. Since experience in America from 1776 had demonstrated that no republic could be made small enough to avoid An Enlarged and Elevated Republic the clashing of rival parties and interests (tiny Rhode Island was the most faction-ridden of all), the republican state, said Madison in a No one saw this linkage between reform of the central government series of notable letters, essays, and speeches climaxing with his and reform of the states more clearly and used it more effectively Federalist No. 10, must be enlarged "without a departure from the than Madison. Nearly everyone is familiar with Madison's central elective basis of it." In this way "the propensity in small republics role in planning for the Philadelphia Convention and in drafting the to rash measures and the facility of forming and executing them" Virginia plan, which was the convention's working proposal. But by overbearing factional majorities would be stifled. "In a large So- not everyone is equally familiar with what Madison wanted from the ciety," said Madison, "the people are broken into so many interests new central government and how disappointed he was with the final and parties, that a common sentiment is less likely to be felt, and the Constitution. Madison's proposals were truly radical; they were requisite concert less likely to be formed, by a majority of the designed not to solve particular problems of the confederation but whole."17 to remedy the deficiencies of republicanism itself. The evidence is All this may be common knowledge to scholars, but it has led strong that Madison and other nationalists who thought like him to great misunderstanding of Madison's meaning. Some have pic- wanted greater consolidation and a correspondingly greater weaken- tured Madison as the originator of what has come to be called an ing of the states than they got. Madison wanted a national govern- "interest-group" theory of politics. But Madison was not a fore- ment that not only would have "a positive and compleat authority runner of Arthur Bentley, David Truman, or Robert Dahl. Despite in all cases where uniform measures are necessary," as in commerce his keen appreciation of the multiplicity of interests in a commercial and foreign policy, but would have "a negative in all cases whatso- society, Madison was not presenting a pluralist conception of politics. ever on the Legislative Acts of the States as the King of Great Britain He did not envision public policy or the common good emerging heretofore had." This veto power over all state legislation seemed naturally from the give-and-take of hosts of competing interests. 18 to Madison lito be absolutely necessary, and to be the least possible Instead he hoped that these competirrg parties and interests in an encroachment on the State VVithout it, he believed, enlarged republic would neutralize themselves, which in turn would none of the great objects which led to the convention-neither the allow rational men to promote the public good. It had worked that need for more central authority nor the desire to prevent instability way in America's religious situation, which was a common analogy and injustice in state legislation--would be met. When the conven- for Madison. The multiplicity of religious sects in America prevented tion eventually set aside this national veto power, Madison initially any from dominating the state and permitted the enlightened reason thought that the Constitution was doomed to failure. 16 of philosophes like Jefferson and himself to shape public policy and 14 Madison quoted in Charles Warren, The Making of the Constitution (Cam- bridge, Massachusetts: Harvard University Press, 1947), p. 82. 17 The Federalist, ed. Jacob E. Cooke (Middletown, Connecticut: Wesleyan Uni- 15 Madison to Edmund Randolph, April 8, 1787, Robert A. Rutland et al., eds., versity Press, 1961), No. 10; Madison to Jefferson, October 24, 1787, Rutland The Papers of James Madison (Chicago: University of Chicago Press, 1962-), et aI., eds., Madison Papers, vol. 10, p. 214. vol. 9, p. 370; Madison to George Washington, April 16, 1787, ibid., vol. 9, p. 383. 18 On this point, see Robert J. Morgan, "Madison's Theory of Representation in 16 For a recent discussion of Madison's national veto, see Charles F. Hobson, the Tenth Federalist/' Journal of Politics, vol. 36 (1974), pp. 852-85; and Paul F. "The Negative on State Laws: James Madison and the Crisis of Republican Bourke, "The Pluralist Reading of James Madison's Tenth Federalist," Perspec- Government," William and Mary Quarterly, 3rd seL, vol. 36 (1979), pp. 215-35. tives in American History, vol. 9 (1975), pp. 271-95.

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35 HOW DEMOCRATIC IS THE CONSTITUTION? GORDON S. WOOD church-state relations. Madison did not want the new national gov- "party," these legislative blocs took consistently localist positions on ernment to be an integrator and harmonizer of different interests in many issues that their cosmopolitan elite opponents criticized as the society; instead he wanted it to be a "disinterested and dispas- "illiberal," "interested," and "unprincipled." Madison and other sionate umpire in disputes" between these different interests.Hl In gentlemen believed that these ordinary men lacked the "enlarged" and other words, Madison was not as modern as we often make him out "liberal" outlooks of the more cosmopolitan "natural aristocracy" to be. He hoped the national government might play the same role that Jefferson, for one, had expected to dominate government. These the British king had been supposed to play in the empire. ordinary men were the ones winning elections to the state legislatures and enacting most of what the Federalists described as the confused, Cosmopolitanism vs. Localism unjust, and narrowly based legislation of the 1780s. What the Fed- eralists wanted from the Constitution was a structure of government If the new government were to be monarchlike with its own "dispas- that would inhibit such localist kinds of men from gaining power. sionate and disinterested" authority, how was it to work in republican They proposed to do this by enlarging the arena of politics. America? "It may be asked," Madison said, "how private rights will Raising important governmental decision making to the national level be more secure under the Guardianship of the General Government would expand the electorate and at the same time would reduce the than under the State Governments, since they are both founded on the number of those elected. This expanded electorate and elevated gov- republican principle which refers the ultimate decision to the will of ernment would then act as a kind of filter, refining the kind of men the majority."20 What, in other words, was really different about the who would become national leaders. In a larger arena with a smaller new federal Constitution from the state constitutions that would number of representatives, only the most notable and most socially enable it to lessen the effects of tyrannical majorities and keep it from established were likely to gain political office. If the people of a state, succumbing to the same popular pressures besetting the state govern- New York, for example, had to select only ten men to the federal ments in the 1780s? Congress in contrast to the sixty-six they elected to their state as- The answer the Federalists gave to these questions cut to the sembly, they were more apt in the case of the few representatives in heart of the new system and reveals clearly the problem of the Con- the national government to ignore obscure ordinary men with local stitution's relation to democracy. The Federalists, Madison included, reputations and elect those who were well bred, well educated, and were not as much opposed to governmental power per seas to the well known. Election by the people in large districts would inhibit character and outlook of the people wielding it. They thought that demagoguery and crass electioneering and would therefore, as Madi- the vices of the state assemblies in the 1780s flowed essentially from son's closest ally in the convention, James Wilson, said, "be most the kinds of people being elected to these assemblies. Such legislators likely to obtain men of intelligence and uprightness."22 were too often too much like the people they represented. What was the meaning of all this Federalist talk of keeping out The Revolution had democratized the state assemblies by increas- of government "men of factious tempers, of localist prejudices, or of ing the number of representatives and by altering their social charac- sinister designs"? Who were the men possessing "the most attractive ter. Men of more humble, more rural origins, less educated, and with merit and most diffusive and established characters"?23 If anyone more parochial interests than those in the colonial legislatures became today used those terms to describe political leaders, we would be state representatives after 1776. These nongentry elements formed understandably suspicious. We might even say that these are "code what Jackson Turner Main has called "localist parties" in all the state words" for distinct social types. The Federalist diagnosis of the prob- legislatures.21 Although the turnover of membership among these lems of state politics in the 1780s was at bottom social. Prior to the groups was perhaps too great to permit such a rigid classification as Revolution, the colonists, like all eighteenth-century Englishmen, had less need for such circumlocutions; they then talked more candidly l!l Madison to Washington, April 16, 1787, Rutland et aI., eds., Madison Papers, about the distinction between gentlemen and ordinary people and vol. 9, p. 384. 20 Madison to Jefferson, October 24, 1787, Rutland et al., eds., Madison Papers, 22 Wilson in Farrand, ed., Records of the Federal Convention, vol. 1, p. 154. The vol. 10, p. 212. first Congress had only sixty-five representatives, smaller than most of the state 21 Jackson Turner Main, Political Parties before the Constitution (Chapel Hill: assemblies at that time. University of North Carolina Press, 1973). 23 The Federalist No. 10.

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36 HOW DEMOCRATIC IS THE CONSTITUTION? GORDON 5. WOOD were much more blunt in designating some as aristocrats and most as where only certain "high-toned" and "great men" would hold office not. Since the Revolution, however, the distinction between gentle- and consequently attacked it as "aristocratic" and contrary to the aim men and common people was becoming blurred; aristocracy, even a of the Revolution. republican "natural aristocracy," had become a pejorative term in Yet, the issue has always been complicated by the fact that the many parts of the country. It is perhaps anachronistic and crude to Federalists did not allow themselves to be pictured as opposed to the refer to this gentry sense of difference from obscure ordinary people people or republicanism. They had good reason to know that the as a "class" distinction, for it was a distinction that belonged to the Constitution would be seen as undemocratic. "When this plan goes older hierarchically and vertically organized society of ranks and forth," John Dickinson warned the Philadelphia Convention, flit will degrees and not to the economically based class and horizontally be attacked by the popular leaders. Aristocracy will be the watch- organized society of the future. Yet, it is surely more accurate to word; the Shibboleth among its adversaries." Precisely because the describe the controversy over the Constitution in these anachronistic Antifederalists, as Alexander Hamilton observed in the New York and crude "class" terms than to suggest that it had no social implica- ratifying convention, did talk "so often of an aristocracy," the Fed- tions whatsoever. The Federalists knew well the social significance eralists were compelled in the ratifying debates and in their publica- of their enlarged republic. They had a shrewd sociological insight into tions to minimize, even to disguise, the elitist elements of the Con- American politics, and they aimed to use it in transforming the social stitution.25 Much of The Federalist, for example, was devoted to character of American government. demonstrating just how "strictly republican" the new system was.26 It is a sociological insight that was exploited time and again in The Federalists emerged from the debates, if we take their public later American history. The Progressive period, for example, was statements at face value, as the great defenders of the supremacy of marked by the reforming efforts of cosmopolitan types, often liberal, the people in politics. They said over and over again that the new upper-income professionals and businessmen, to wrest the reins of national government, unlike the old confederation, was fully derived government out of the hands of "corrupt" and "undesirable" localist from the people. The states could not stand in the way of what the elements. The Progressive reformers often did this by shifting the people wanted, and the Constitution was only fulfilling at the national level of governmental decision making from wards, towns, and coun- level what the Revolution in 1776 had begun. In effect, the Federalists ties to the states and the nation. Commissions of "experts" at the usurped the popular revolutionary language that rightfully belonged state and federal level supplanted parochial politicians who could not to their opponents and, in the process, helped to further the extraor- see beyond their own neighborhoods.24 Changing the level of decision dinary changes taking place in the American conception of politics making continues to have social implications; much of our national and democracy. politics stilI swirls around this cosmopolitan-Iocalist dichotomy. What By the end of the debate over the Constitution, it was possible do we mean socially when we refer to "establishment types," "limou- for the Federalists to describe the new national government, even with sine liberals," "Middle America," or "Archie Bunkers"! its indirectly elected president and Senate, as "a perfectly democratical form of government."27 Already by 1787-1788 democracy had come A Republican Remedy for Republican Diseases to be identified by some Americans simply as a representative govern- ment derived from the people. In other words, republicanism and Whether such cosmopolitan efforts to create political structures that democracy were becoming equated. The houses of representatives lost deliberately excluded the ordinariness of ordinary people are undemo- cratic was precisely the issue raised at the framing of the Constitu- 25 Dickinson in Farrand, ed., Records of the Federal Convention, vol. 2, p. 278; Hamilton in Jonathan Elliot, ed., The Debates of the Several State Conventions tion. The Antifederalists, speaking for a populist localist tradition, on the Adoption of the Federal Constitution (Philadelphia: Lippincott, 1876), certainly thought the Constitution was undemocratic. They immedi- vol. 2, p. 256. ately saw the social implications of the elevated federal government, 26 See especially Martin Diamond, "Democracy and The Federalist: A Recon- sideration of the Framers' Intent," American Political Science Review, vol. 53 (1959), pp. 52-68, and Diamond, "The Federalist, 1787-1788/' in Leo Strauss and 24 See especially Samuel P. Hays, "Political Parties and the Community-Society Continuum," in William Nisbet Chambers and Walter Dean Burnham, eds., Joseph Cropsey, eds., History of Political Philosophy (Chicago: Rand McNally, The American Party Systems: Stages of Political Development (New York: Oxford 1963), pp. 573-93. University Press, 1967), pp. 152-81. 27 Nathaniel Gorham (Massachusetts) in Elliot, ed., Debates, vol. 2, p. 69.

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37 HOW DEMOCRATIC IS THE CONSTITUTION? GORDON s. WOOD their exclusive connection with the people. Representation was now confident that, if only the people's choice could be undisturbed by identified simply with election; thus, all elected officials, and, for ambitious local demagogues and crass electioneering, the people would some, even those not elected, such as judges, were considered some- "choose men of the first character for wisdom and integrity/' men 2 how "representative" of the people. Consequently, the older classical very much like themselves. \l It was an achievement that transcended ideas of democracy and mixed government that went back to Aristotle their intentions and.one that has rightly earned them the admiration became irrelevant in describing the new American political system. of subsequent generations. Somehow for a moment they reconciled Democracy rapidly became a generic label for all American government. aristocracy with democracy and gave us, as John P. Roche has said, The changes in language and thought that made this new, more "a classic example of the potentialities of a democratic elite." 30 modern definition of democracy possible were not as easily reached as Nevertheless, great as the Federalists' achievement was, the cost suggested here. Nor was the Federalist use of populism to defend the to the future of American politics was high. By using the most popu- Constitution as self-conscious or calculating as here implied. Ideas lar and democratic rhetoric available to explain and justify their and words are not manipulated or transformed quite that crudely. aristocratic system, the Federalists helped to foreclose the development But, in sum, the Federalists did seek to cover their aristocratic docu- of an American intellectual tradition in which differing ideas of poli- ment with a democratic mantle. The state problems of the 1780s they tics would be intimately and genuinely related to differing social hoped to solve were those of excessive democracy; yet, the solution, interests. In other words, the Federalists of 1787 furthered the Amer- they said, or felt compelled to say, was likewise democratic. As ican disavowal of any sort of aristocratic conception of politics and Madison, who was somewhat less willing than other Federalists to encouraged the American belief that the ills of democracy can be cured distort language and indulge the people, put it, the Constitution was by more democracy. From the creation of the Constitution, as the "a republican remedy for the diseases most incident to republican Federalist party of the 1790s eventually discovered to its dismay, government." 28 Whatever the terms used, the Federalists in their democracy in America was no longer something to be discussed public statements were not able to say candidly what at least some skeptically and challenged but a faith to which all Americans and all had said within the secrecy of the Philadelphia Convention: that the American institutions must unquestioningly adhere. source of their difficulties came from too much local democracy, and that the solution was to limit this local democracy by erecting a more 29 Hartford, Connecticut Courant, February 5, 1787. aristocratic structure over it. 30 Roche, "The Founding Fathers:' p. 816. In the end, the Federalists had little choice in their rhetoric. If they were to get the Constitution ratified, they had to work within the egalitarian and populist currents flowing from the Revolution. Despite the suggestion of disingenuousness, there is no denying their achievement. They thought and acted more creatively than any other generation in American history. They not only convinced the country to accept a national government inconceivable a decade earlier but they did so without repudiating the republicanism and the popular basis of government that nearly all devoutly believed in. The Fed- eralists of 1787-1788 were not the Federalists of the 1790s; they were alarmed by the abuses of popular power, but they were not, like the later Federalist party, actually fearful of the people. They remained

28 The Federalist No. 10. Madison's careful distinction between a republic, "in which the scheme of representation takes place," and a democracy, where the people "assemble and administer the government in person," was not supported by many Federalists. Before long all American governments were being called "representative democracies." See Wood, Creation of the American Republic, pp.593-96.

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38 ‘Democracy and the Citizen: Community, Dignity, and the Crisis of Contemporary Politics in America’ in How Democratic is the Constitution? Ed. William Schambra and Robert Goldwin HOW DEMOCRATIC IS THE CONSTITUTION?

was more democratic in the past than it is today, especially in provid- ing greater dignity for the citizen and greater protection against "tyranny of the majority." My argument, obviously, extends beyond what established opin- ion understands by democracy, especially since my notion of democ- 5 racy includes things not considered "political" by most Americans. In order to combat such deeply entrenched ways of thinking, I will Democracy and the Citizen: have to turn to the foundations of our political thought.

Community, Dignity, and the The Ancient Idea of Democracy Crisis of Contemporary Politics To ancient political science, citizenship came first in the ordering in America of democracies. Aristotle established the first principle of democracy as political liberty, "ruling and being ruled" in turn, sharing the Wilson Carey McWilliams responsibilities of rule as well as the duty to obey:l In a democratic regime, each citizen must be able to share in defining the public's alter- natives and have "an equal say in what is chosen and for what end." 4 Most Americans would agree that the Constitution has become more Since the equality of all citizens is a democratic tenet, democracies democratic with time.! We know the evidence for this view. The vote make decisions according to number, but Aristotle took care to show has been extended to racial minorities, women, and eighteen-year- olds. We elect senators directly, property qualifications have virtually that majority rule is derived from the principle of equal citizenship disappeared, the poll tax is unconstitutional, and all of us are entitled and shared rule. to equal protection of the laws. As these examples suggest, one per- Majority rule is, after all, a difficult precept. Why should a son, one vote is the measure by which most Americans assess degrees minority accept the rule of a majority it considers wrongheaded? of democracy. Most of us, in other words, see voting by majority rule According to John Locke, the authority of the majority rests on a com- as the defining characteristic of a democratic regime. bination of force and consent. This view is correct as far as it goes, but it rests on a fragmentary idea of democracy. I rely on an older, more comprehensive under- It is necessary that the body should move that way whither standing that makes citizenship, rather than voting, the defining the greater force carries it, which is the consent of the major- quality of democracy.2 Common sense tells us that speaking and ity, or else it is impossible it should act or continue one body, listening precede voting and give it form. Democracy is inseparable one community, which the consent of every individual that from democratic ways of framing and arguing for political choices. united into it agreed that it should....5 Almost all agree, for example, that elections in so-called people's democracies are shams. At a deeper level, moreover, democracy At first blush, Locke's case for majority rule rests on the minority's depends on those things that affect our ability to speak, hear, or be agreement to form a political community, but that consent as readily silent. In this sense, I will argue that democracy requires community, obliges the minority to accept any system of rule in preference to civic dignity, and religion. Similarly, I will argue that in certain political dissolution or civil war. The majority's specific title derives important respects the Constitution, contrary to the prevailing view, from its "greater force"-implicitly, the impossibility, under natural ------conditions, of coercing the many and the ease of coercing the few. Locke, however, limited his argument to the state of nature and con-

3 Ernest Barker, ed., The Politics of Aristotle (Oxford: Clarendon, 1952), p. 258. 4 Delba Winthrop, "Aristotle on Participatory Democracy," Polity, vol. 2 (1978), p.155. " Locke, Second Treatise on Civil Government, sec. 96.

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39 WILSON CAREY McWILLIAMS HOW DEMOCRATIC IS THE CONSTITUTION? ditions akin to it. In civil society, as Locke knew well, majorities live as they like.s This argument by democrats is evidently fallacious: cannot be equated with greater force i a minority may easily comprise "That which is not slave'! is not an adequate definition of '!a free citizens who are wealthier and more skilled in military matters.G If person." A child who is not a slave, for example, has not come into the wealthy and strong accept the rule of the poor and unskilled, it '!man's estate." This is, however, the sort of error that citizens cannot be because they are forced. It is often observed that the unfamiliar with philosophy might be expected to make. minority must believe that the majority will respect its "rights," There is a second error in the democratic argument. In ordinary ensuring its essential minimum without which it would fight. Cer- terms, no one lives as he "likes." The slave is not defined by living tainly, a minority must have such confidence, but is that trust enough? under a rule but by having no say about that rule. Voicelessness, not Why would a strong minority settle for so little when force might give restraint, is the mark of a slave. This second mistake is possible only it so much more? The strong minority bends to majority rule only because the good citizen, in being ruled, feels he is doing as he likes. when it accepts the principle-the political equality of all citizens- So he may be. The public-spirited citizen, ruling, acts for the common from which that rule derives. I can believe that all citizens have an good; and being ruled is liberating in part since it allows a greater equal share of justice without believing that the majority is always attention to one's own good. This is especially true if my rulers are right. You and I can be equal and ignorant when it comes to astro- no worse than I am, and I expect them to be guided by common physics, yet I can insist that my opinion is correct no matter how principles.1) Aristotle's argument suggests that patriotic and law- many equally ignorant people share yours. abiding but unphilosophic citizens come to believe that freedom is Similarly, a strong majority refrains from oppressing the minor- "living as one likes,'! an error that does little damage so far as they ity because it too accepts the principle of equal citizenship and political are concerned. Aristotle pointed out, however, that this idea leads to participation. The minority, as equals, must be allowed their say. (In the claim of freedom from any government or, indeed, from any fact, to give the minority equal time, as we do, gives it more than an restraint at all. The children of public-spirited citizens, taught the equal share, since fewer citizens are allowed the same time.) As Delba mistaken "second principle" of democracy, become private-regarding Winthrop comments, a democrat who takes equal political liberty individualists.10 They may accept democracy as a second-best sub- seriously "does not intend a tyranny of the majority." 7 stitute (especially since democracy does not ask us to be ruled by Both the majority and the minority must regard the principles of anyone in particular) but it will be only that. "In this way," Aristotle civic equality and equal participation more strongly than their partisan observed guardedly, the second principle "contributes'! to a "system creeds and their private interests. In a democracy, citizenship rules of liberty based on equality." 11 Preferring to be free from all rule, partisanship, and public principles govern private interests. Citizens the individualist supports democracy from weakness and lack of spirit, of all factions must, to that extent, prefer the good of the whole to but he is not a democrat. His attitudes will be partisan or even more that of the part. narrowly concerned with his own interests. If he obtains office, he Civic virtue is reemphasized by the consequences of political will not subordinate his private will or interest to the good of the liberty. Aristotle observed that the democratic stress on political community, since to do so, in his eyes, would be slavish. Democracy liberty--freedom to participate in public life as part of the whole- can survive a few such citizens hut not many. If they become pre- suggests a second form, individual liberty-"living as one likes" as dominant, majority rule will become tyrannical, with civil conflict though one were a whole. Democrats "say," Aristotle commented, the least danger facing the regime. The second principle, individual that liberty must involve "living as you like," because slaves do not liberty, must he kept subordinate to the democratic first principle, political liberty and equal citizenship, if democracy is to stave off decay.

8 Aristotle, Politics, p. 258. I) Plato, Republic, book I, 346a·347d. 10 Compare Franklin's advice to Tom Paine; Benjamin Franklin, Select Works, P. Sargent, ed. (Boston: Phillips Sampson, 1857), p. 486. 11 Aristotle, Politics, p. 256.

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Whatever democrats "say," democracy does not promise "living that human freedom is possible only when I act as a part of a whole as one likes." Its aim is self-rule. Autonomy is possible for human and that my good, the good of a part, depends on that of the whole. beings only as parts of wholes, in which our "partiality" and the This lesson can never be learned perfectly. My body reminds me things to which we are "partial" are recognized as secondary, though constantly that I am separate; my senses are my own and no one important. In essential ways, politics frees us. In the world of the else's. The body and the senses take us beyond mere survival and tribe, most citizens do similar work; in the city, we work at what we pleasure; as we know, powerful feelings and passions may move us do best. In the clan, custom and blood-law regulate life. As a chiid, to sacrifice our lives and liberties. My body and my senses move me I am hopelessly dependent, and I value the rules of custom and kin- to such sacrifice only on behalf of things they take to be my own. The ship, which tell my parents that they must care for me. As I approach perimeter of the senses is narrow and makes me the center of the adulthood, however, this choiceless automation comes to seem imper- world. sonal, if not oppressive. The polis allows me to find friends who When government and law urge me to support the common good, choose me (as I choose them) because they like me, not my geneal- they may find an ally in my reason or my sout but they must expect ogy.12 In this sense, the polis is naturally "prior" to the individual, resistance from my body and my senses conducted in the name of my because the human being as an end presumes the polis as a means.J3 dignity. Ie for example, reason assures me that government has The excellent or complete human being is the end for which the consulted people like me in making policy, my emotions will answer I city exists; for him, if for anyone, it might be said that freedom is that it has not consulted me. :i Civic virtue requires that we govern "doing as one likes." Such a human being, however, would recognize some of our strongest feelings and desires. In that sense, as Aristotle his debt to the city and know that his freedom involves obligations. argued, to rule free men-and hence, to be a citizen of a democracy- Moreover, the most fully self-ruled men realize that the thing they one must first learn how to be ruled. IG rule, the self, is not something they make. My nature sets the limits If government is radically at odds with my senses, my dignity, to my rule. If I command myself to be young forever, my orders are and my private interests, however, I will feel it as a kind of tyranny. hostile to self-rule, because they seek to subject the self that I am to I will resist it, retreating into private refuges if it is strong and defying another, imagined self. To be self-ruled, I must be ruled by my nature it if it is weak. I may be compelled to obey, but I will not learn to as a human being and by the nature of which humanity is a part. In be ruled. that higher sense, self-rule does imply "doing as one likes," for it Classical political philosophy argued in favor of the small state, requires that I do what I truly like, according to nature, or, to put it in part because the polis was within the periphery of the senses, another way, I must do what is "liked" by nature, lithe one" of which reducing the distance and the conflict between public good and private I am only a part.14 interest. In a small community, if my taxes help to build a reservoir, I Self-rule requires, then, that I be free to do what is according to will be drinking the water it provides and my senses will testify to nature. No barrier in my environment or in me must stand in the way. benefits of civic duty. In a large state, by contrast, any benefit I derive To help me toward self-rule, democracy must provide me with an from a dam in Idaho is indirect, as distant from my senses as Idaho environment that has resources enough to permit me to live in a fully itself.17 human way. It must also educate me so that my soul will be free to Similarly, the small state lets me know my fellow citizens and my follow nature. For its own health, democracy must try to teach me rulers.1s More important, they know me. This is especially true in stable communities, for people I have known only a short time are 12 Because democracy emphasizes "free birth" it is more familial than its claim to freedom would suggest. Ibid.• pp. 163-164. On the general point, the emphasis 15 Peter Berger, "On the Obsolescence of the Concept of Honor," European must be on finding friends within the city, for the friendship of all citizens is Journal of Sociology, vol. 2 (1970), pp. 339-347; Anthony Lauria, "Respeto, Relajo decidedly second-rate. Even though I begin by admiring what my friend appears and Interpersonal Relations in Puerto Rico," Anthropological Quarterly, vol. 37 to be, I aim at the friend I can value for what he truly is. Aristotle, Nichomachean (1964), pp. 53-67. Ethics, 1164al-30, 1168a27-1169b2, and Ethica Eudemia, 1236a-b, 1237a-b, 123Sb, 16 Aristotle, Politics, p. 105. 1234b. H Mancur Olson, The Logic of Collective Action (Cambridge: Harvard Univer- 1:) Aristotle, Metaphysics, 1018b9-29, discusses the varieties of "priority." sity Press, 1965). 14 Winthrop, "Aristotle on Democracy," pp. 166-167. 18 Plato, Laws, book 5, 738e.

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41 WILSON CAREY McWILLIAMS HOW DEMOCRATIC IS THE CONSTITUTION? people I know only superficially. Moreover, if people move frequently, the passions. Even those concepts that educate the passions gently, I will not feel confident that we share a common destiny or a common like the small state and relative economic equality, require restraint on good. Rather, I am likely to suspect that they may desert me in a private desires. Democracy depends on some knowledge of the limits time of trouble; I may feel compelled to protect myself by deserting of personal liberty and human nature. It hopes that citizens will see them first. The common good reigns weakly in a hobo jungle or a the law and nature not as confining prisons in which the self is trapped, trailer park. Small and relatively stable communities, by contrast, but as boundaries which delineate the self. Put another way, democ- encourage confidence and fidelity. racy aims at the governance of body by soul. That aim is audacious. Finally, the small state is suited to democracy. In a small state, In the best of us, the body's obedience is imperfect; democracy is not it is possible for me to have my say. In a large state, only a few can a government by the best. Citizens cannot be assumed to have the be heard beyond private circles. Small communities give a larger faith of saints or the reason of philosophers. Democracies rely on proportion of citizens the chance not only to speak but to speak ade- true opinion, rather than knowledge, and on piety, rather than revela- quately. Too, relations of trust encourage speech; we need not be tion. These lesser excellences, nevertheless, depend on the greater. silenced for fear of "giving offense" or by the suspicion that our com- Ordinary citizens need the example of the best human beings in order munity is too fragile to bear disagreement. Of course, a much larger to imitate, as part of the exacting regimen of civic education, the percentage of the citizens of a small community can hold office. To reverence for law and nature which, in the best, emanates from free- put it another way, in the small state, I matter and my choices are dom of the spirit. visibly important. A small state comports with my dignityyl In this respect, it is less important that I speak or hold office than that I be able The Framers' Rejection of the Ancients to do so. If I listen or obey, it then must be presumed that I chose to do so. Silence and law-abidingness are dignified forms of conduct. Ideas like these, especially as glossed by Christian theologians, The large state, however, tends to rob obedience and silence of their were a major part of the cultural inheritance of Americans at the birth dignity, making them matters of necessity. In modern America, for of the Republic. Custom and controversy made many such teachings example, we do not really respect the respectable. familiar to Americans who had little notion of their origins. Those The small state is the natural home of democracy. It makes pos- who rejected classical political philosophy as a whole clung to one sible "ruling and being ruled in turn" and it helps to strengthen public part or another. The framers, however, were self-consciously modern spirit. The small state, however, demands that we restrain our ambi- men who rejected the tradition. They felt themselves the vanguard of tion for power and for wealth. Similarly, democracy presumes some an intellectual revolution as well as political founders. The struggle restraint on the extremes of wealth and poverty. Democracy does not over the form and spirit of the Constitution was, in many ways, a require economic equality, but it does require a sense of commonality battle between the old science of politics and the new. and equal dignity. The sense of the common good is weakened where Although the framers appealed to "republican" ideals, they meant the impoverishment of some does not affect, or even contribute to, the "republic" in a special, modern sense. Their real concern was liberty, wealth of others. The wealthy are tempted to believe that they do not republican government, and they set as the "first object of govern- not need the many and to behave with arrogance; the poor become ment" the protection of the "diversity in the faculties of men." Their desperate if they see their poverty as a badge of indignity and shame.20 aim was private rather than public freedom; they elevated Aristotle's 21 The desire for wealth must be restrained in all classes. Economic gain second principle to the first place in politicallife. must be subordinated to stability and civility in democratic life. Human beings, in the framers' creed, are by nature free, morally In summary, democracy claims to be a regime characterized by independent without obligations to nature or to their fellows. For the liberty, but it depends on restraint. It requires citizens who are willing framers, the separateness of the body-if not the body itself-was the to sacrifice for the common good and, correspondingly, a restraint of defining fact of human nature (hence, the tendency, in ordinary speech,

21 Madison, Hamilton, and Jay, The Federalist Nos. 10, 39; Martin Diamond, "The IV R. E. Gehringer, "On the Moral Import of Status and Position," Ethics, vol. 67 Declaration and the Constitution: Liberty, Democracy and the Founders," in (1957), pp. 200-202. Nathan Glazer and Irving KristoI, eds., The American Commonwealth 1976 20 Aristotle, Politics, pp. 63-68,209, 232, 268. (New York: Basic Books, 1975), pp. 48-49.

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42 WILSON CAREY McWILLIAMS HOW DEMOCRATIC IS THE CONSTITUTION? to separate "nature" and "nurture," equating natural conduct with "inconveniences" of the state of nature; but these prudential objec- what springs spontaneously from the body). By nature, our desires tions do not affect the basic argument. Human nature strains against are free, and we seek to do as we like. Above all, we desire self- the law, our passions resisting the necessity to which reason gives its preservation, a "great principle" worthy to be ranked with "absolute consent. "Why has government been instituted at all? Because the necessity" and "the transcendent law of nature and of nature's passions of men will not conform to the dictates of reason and justice God." 22 without constraint." In Madison's famous rhetoric, "What is gov- Nature will not let us preserve ourselves. In the end, nature will ernment itself but the greatest of all reflections on human nature? kill us. The naturally free individuals of the framers' theory find If men were angels, no government would be necessary," and con- themselves obstructed, at almost every point, by nature and their sequently, "in framing a government [y]ou must first enable the fellows. By nature, we strive to acquire the power to do as we will government to control the governed " 24 and, ultimately, to master nature itself. In controlling the governed, majority rule-the "republican prin- By the familiar locutions of social contract theory, people dis- ciple"-is invaluable. In the first place, all other things being equal, cover that their unaided efforts leave them too exposed to attacks by the majority will possess "greater force" than the minority, as in others and too weak to trouble nature seriously. Reason suggests to Locke's argument; its support will provide the power to constrain. the individual that he would do better in combination with others; Since other things are not equal, as Madison knew, and the majority governments are created "by the consent of the governed," since is likely to be relatively poor and discontented, its consent removes morally independent beings can be bound only by their consent. If one probable source of disorder. our consent creates obligation, then nothing can evaluate our con- The consent of the majority, of course, is impermanent. Having sent: Whatever we consent to will be "right." 23 The theory presumes, given our consent, we regret the constraint it entails, especially since of course, that we will never truly consent to give up our rights to under the government's protection, we forget the dangers that moved "life, liberty and the pursuit of happiness"; this only emphasizes that us to consent. The revolutionary war, Madison wrote, encouraged an our consent (and, hence, government) can only be self-limited. As excessive reliance on the "virtue and intelligence" of the people, since Berns demonstrates, the governed can consent, according to the Dec- it "repressed the passions most unfriendly to order and concord," laration of Independence, to regimes other than democracy. Civic producing a patriotism not to be expected in more tranquil times. education in an established polity does all that it need or should do Periodic elections are needed to renew consent or, at least, to provide when it persuades us to consent. Political participation is quite need- the government with the support of a current majority; such elections less if we are persuaded that government protects our private rights should not be so frequent as to undermine the public's "veneration" and interests; public spirit, in any strict sense of that term, is unde- 2 for a regime. ;; The fundamental unpolitical nature of human beings sirable. Government is always to some degree oppressive, since we makes majority rule and periodic elections prudent, though not strictly give up to it some of the liberty that is ours by natural right. We necessary. Democracy in the modern sense derives from our supposed ought to surrender such liberty grudgingly and watchfully; whatever indisposition to all forms of rule, including democracy. The case for civic duties our consent entails, we should perform with an eye to our private liberties. The "consent of the governed" does not require modern democracy rests in part on the undemocratic nature of human- democracy, and it discourages citizenship. kind. For human beings as the framers understood them, the really 24 Federalist Nos. 15. 51. Madison's implicit theology is revealing. Angels are desirable regime is not democracy, but a tyranny in which I am the governed, after all. by an absolute monarch, but Madison seemed to assume that tyrant, able to command the bodies and resources of others to "live the government of heaven is not relevant to earthly politics. If men were angels, as I like." Failing that, I prefer not to be ruled at all. Tyranny is Madison asserted, they would be beyond the power of nature, though not masters over it. Even with that qualification, given a modern view of the purposes of unlikely and insecure, and anarchy is impractical because of the politics, no human government would be necessary. 2;; Federalist No. 49. Hegel regarded war as useful because it reminded citizens 22 Federalist No. 43. of their partiality and their need for the state (Philosophy of Right, part 3. 23 Hanna Pitkin, "Obligation and Consent, II," American Political Science Review, pp. 320-328). Elections are a kind of "war without the knife" and hence both vol. 60 (1966), pp. 39-52. invaluable and dangerous.

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However, majority rule and periodic elections do not oblige the In a nation of philosophers.... raj reverence for the laws government to "control itself," the second concern in framing free would be sufficiently inculcated by the voice of an enlight- government. In the normal course of events, the majority will be par- ened reason. But a nation of philosophers is as little to be expected as the philosophical race of kings wished for by tisan, moved by private motives, and disposed to oppression. "Neither 29 moral nor religious motives can be relied on" to restrain it and, in any Plato. case, it is not the business of government to educate the soul. If man In fact, however, a nation of philosophers would make no difference has a soul, it is free by nature; legitimate government is obliged to if it were a polis: "Had every Athenian citizen been a Socrates; every leave it SO.26 Athenian assembly would still have been a mob." This is a striking, It is no surprise then that the framers rejected the classical case even shocking, assertion, although it follows from the framers' theory. for the small state. Madison was hostile to the "spirit of locality" in Madison argued that the passions can never be educated, even in the general, not only in the states. Small communities afford the individ- best and wisest human beings; they can only be repressed and con- ual less power, less mastery, and, hence, less liberty than do large trolled. In the assembly, each citizen-Socrates would sense his anonym- states. Moreover, the small community lays hold of the affections of ity. He would no longer fear the shame of visibly pursuing private the individual and leads him to accept the very restraints on his inter- interests or oppressive designs, and he would join others in carrying est and liberty that are inherent in smallness.21 The classics urged these designs into effect. Socrates is not king, "the epitome of a free the small state, in part because it might encourage the individual to man who participates in politics for the common good" and a model limit and rule his private passions. Madison rejected such states, for democratic citizens, but a craven tyrant who fears being found S because he rejected that sort of restraint. Small communities limit out. ! opportunities and meddle with the soul. At best, they are outdated If this is true of Socrates, it is even more true of the rest of us. associations that once advanced individual interests but now fetter There are no citizens in the classical sense of the term, just as there the new science of politics. are no kings. There are only tyrants, more or less strong. Liberty All "face-to-face" communities are suspect. In very small dis- requires that we be kept weak. The small state, however, makes us tricts, Madison warned, representatives are likely to be "unduly feel strong or, at least, that we matter. That very virtue, in the attached" to their constituents. The affections are too intense, the framers' eyes, becomes a damning vice. bonds of community too strong. "Great and national objects" on one Madison and Hamilton argued that the control of the majority hand, and individual liberty on the other, are necessarily endangered. lies in the "enlargement of the orbit" of republican rule, creating a In a large assembly, especially if it is "changeable," the individual is large state in which a majority must be composed of diverse factions, not attached enough. In the crowd, the individual is too anonymous unlikely to agree about much or for long. The number of such fac- for a "sensible degree of praise or blame for public measures" to tions, however, is no more important than the distance between the attach to him. His private passions are loosed because he is freed from bodies of the individuals composing the factions. That distance guar- the consequences of his acts. At the same time, by the face-to-face antees that a common sentiment cannot be felt, except in so diffuse quality of the assembly, the individual is enabled to discover those a form as to be unimportant. The ideal regime is "dispassionate" who share his ambitions, resentments, and desires. "A common pas- even more than "disinterested." Interest, at least, is calculable and sion or interest will, in almost every case, be felt by a majority of the easily channeled by institutions and laws. The passions must be "con- 32 whole; a communication and concert results from the form of govern- trolled and regulated" by government. ment itself...." 28 Free government aims to minimize coercion, but the passions can In one context, Madison seemed to suggest that the problem be disciplined without much direct force. Human beings will be fear- results from our unequal capacities for reason. ful enough when they are weak and alone. No. 49. 26 Federalist Nos. 51. 10. 30 Federalist No. 55. 21 Julian Boyd, ed., The Papers of Thomas Jefferson (Princeton: Princeton al Winthrop, "Aristotle on Democracy," p. 166. University Press, 1950-), vol. 6, pp. 308-309. ::2 Robert Rutland et aI., eds., The Papers of lames Madison (Chicago: University 28 Federalist Nos. 10,63. of Chicago Press, 1962-), vol. 9, p. 384; Federalist No. 49.

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The reason of man, like man himselC is timid and cautious While the Antifederalists, as Berns comments, spoke in the lan- when left alone; and acquires firmness and confidence, in guage of rights and contracts then current among educated men, their 33 proportion to the number with which it is associated. position derived from the older science of politics. The language of Individuals in the large state, unable to "communicate and concert" individual rights did not really suit the Antifederalists. They were far easily, are likely to feel "timid and cautious." The states and local more likely than their antagonists to refer to government and society communities, however, are barriers to this salutary isolation. In them, as "natural." Civic virtue was a central concern of their political argu- individuals are too intimately associated with others who are close to ment, and they were zealous to defend true opinion and small states their affections; citizens are encouraged to be rash and turbulent in as the foundations of civic education. Centinel scorned governments relation to the general government, while local regimes deprive them that were republican in "form" only, insisting that the "reality" of private liberty. Consequently, the federal government must gain required a virtuous people. As Berns observes, Antifederalists some- direct access to the individual, breaking the locality's monopoly on times supported religious tests and, even more often, legislation to his affections and attracting to the central regime "those passions promote public morals. A free people, Melancton Smith argued, is which have the strongest influence upon the human heart.,,:H At necessarily exposed by its very freedom to a "fickle and inconstant" least somewhat freed from local regimes, the individual will also be spirit. Government must be vulnerable to this inconstancy. Free gov- more timid, cautious, and alone. ernment requires the foundation provided by a stable private order, This has a benefit beyond fearful obedience. Since human reason the "old communities" settled in "time and habit" to which Samuel "acquires firmness and confidence in proportion to the number with Bryan appealed. Such communities should be rooted in the people's which it is associated," those opinions shared by the majority of affections. They require an ordered life and a rough equality, protect- Americans will be held with overwhelming force. There will not be ing community against the conflicts engendered by luxury, competi- many such opinions-no more, perhaps, than the general principles of tion, and anxiety. A democracy, George Clinton said in a nice turn the Declaration of Independence-but they will be all but unques- of phrase, should be "well-digested." 37 tioned. In the large state, weak individuals hesitate to advance eccen- Only in small states, Richard Henry Lee contended, can the laws tric views and adopt with confidence ideas shared by the many. It is possess the "confidence" of the people. Confidence, we should remem- a strange result for a theory that began with a concern for the free- ber, is a much more active and embracing term than "consent." It sug- dom of the soul. gests speaking one's mind, as in "confiding" to another. It also implies The Antifederalists and the Old Science of Politics that citizens "confide"-give or entrust-themselves to the laws, yield- ing private interest and opinion to public rule. Such a spirit required, However, as Young reminds us, the framers did not have it all Lee observed, a government within the emotional, sensory range of the their own way. We tend, in fact, to underestimate the strength of individual, one limited like man himself, Agrippa wrote, to a "narrow Antifederalist views, since many who shared Antifederalist beliefs space." 38 and apprehensions joined Jefferson in accepting the Constitution as a A federal regime could acquire confidence only if representatives, working document, hoping to shape it by interpretation, practice, who make the laws, are able to convey it. In the first place, the citizen and amendment.:::; The federalism of the Constitution resulted from must know his representative and be known by him, establishing a politics, not from the framers' wishes. Both Madison and Hamilton tie between the "natural aristocracy" and the "democracy." No "gov- desired a far more centralized regime than that framed in the Con- ernment of strangers" is acceptable.39 For Madison, it was enough m stitution.: that the representative know the "local circumstances and lesser 49. interests" of the electors. George Mason argued, by contrast, that ::.. Federalist No. 16. the representative should "mix with the people, think as they think, a:; Adrienne Koch and William Peden, eds., The Life and Selected Writings of Thomas Jefferson (New York: Modern Library, 1944), p. 441. :$1 Cecilia Kenyon, ed., The Antifederalists (Indianapolis: Bobbs-Merrill, 1966), ::r; Gaillard Hunt, ed., The Writings of lames Madison (New York: Putnam, 1900- pp. xcii, 148, 197, 205,263,309-310,374,388. 1910), vol. 2, pp. 336-340; Max Farrand, I'd., The Records of the Federal Conven- tion (New Haven: Yale University Press, 1937), vol. I, pp. 162, 164, 168, 297, 38 Ibid., pp. 154, 210. 463-464, 476, 489-490, 530; vol. 2, pp. 390-391; vol. 3, p. 77. 39 Ibid., pp. lxi, 216-217, 377-378, 383-385.

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45 WILSON CAREY McWILLIAMS HOW DEMOCRATIC IS THE CONSTITUTION? feel as they feel-ought to be perfectly amenable to them and Madison also maintained that large districts would be more likely thoroughly acquainted with their interest and condition." 40 Mason to contain "fit characters" than small ones. Since candidates would included Madison's demand for an intellectual knowledge of the be less able, in large districts, to practice the "vicious arts" of elec- "interest and condition" of the people, but he put it last, giving prece- tioneering, "fit characters" would be more likely to win office. Madi- dence to the requirement of emotional comprehension and personal son, of course, knew well that demagogy is easier when addressing a relationship, considerations Madison put aside. large audience than a small one; that is not the sort of "vicious art" Moreover, if the representative is to convey confidence, he must he had in mind. He referred to "cabals" that organized (and often represent the minority as well as the majority. For this to be possible, bribed) local electorates. Organizing or bribing a large electorate is majorities and minorities, like the citizens Aristotle described, must undeniably more difficult; hence, the "suffrages of the people" would prefer the public good to their partisan interests. The district must be be more "free." As a result, well-known and celebrated persons would a community, convinced that its likenesses outweigh its differences. be more likely to win election.43 To Madison's objection-that very small districts tie representa- This argument, however, illustrates what John Lansing meant tives to parochial interests-the Antifederalists responded that only when he observed that elections can be only the "form" of freedom.44 such districts can give the representative the authority (confidence) to All elections require some organization; the selection of contending sacrifice private interests. Of course, representatives from small dis- candidates and the identification of "serious" contenders in a large tricts may be mean or private-spirited. Unless the electors are ensured field are obvious examples. Large electorates favor those with estab- their say, however, they will not consider themselves represented lished advantages-the wealthy, the famous, and urbanites, who "live and, resenting the indignity, they will stand on the defensive. In a compact" with "constant connection and intercourse." 45 The Anti- large district, we may trust our representative to defend the district's federalists, on the whole, were partisans of direct election, but, unlike interests; we are unlikely to trust his decision to sacrifice themY later and less wise enthusiasts, they recognized that mass electorates Madison's argument illustrates his differences with the Anti- are to the advantage of elites. Martin Van Buren observed thirty-five federalists. The district must be large enough to avoid "undue attach- years later that nonpartisan elections benefit the upper classes and the ment," but small enough for the representative to know the district's celebrated and consequently undermine respect for institutions by interest. This latter limit, however, is not a strict one. A shrewd inspiring the belief that elections are a fraud, concealing "real" deci- representative can master the interests of a large district. Congress- sions made elsewhere.4G To the Antifederalists, democratic elections men today, who represent close to a half million people, prove the were tied to the local polls, closer to a caucus than to the secret ballot point. In fact, if a district is large, according to Madison's principles, and relatively open to the candidacy of ordinary citizens. The Antifed- it should be very large, since in all face-to-face meetings, passion eralists retained the idea of a citizen as someone who shares in rule, prevails. On the other hand, a "numerous and changeable" body can- hence their support for annual elections and rotation in office. All not be moved by a sense of the common good.42 This comment, in citizens, George Clinton declared, should have the chance to win relation to the Senate, illuminates Madison's intent. Congressional public office and honor, for the "desire of rendering themselves districts, intended to be large if not especially changeable, are not worthy" of office nurtures patriotism and civic virtueY In this, too, meant to be moved by the common good. The refusal of a minority within such districts to be "represented" merely adds another faction 4:1 Federalist No. 10. to the multiplicity that protects liberty, and it may help to fragment 44 Jonathan Elliot, Debates in the Several State Conventions on the Adoption of locality. Madison rejected a system of representation intended to the Federal Constitution (Philadelphia: Lippincott, 1896), vol. 2, p. 295; Kenyon, convey confidence, public-spirited support for the common good, in p.72. favor of representatives who can provide the consent of a "numerous 45 Kenyon, Antifederalists, p. liv; James Madison, in A. Koch, ed., Notes of Debates in the Federal Convention of 1787 (Athens: Ohio University Press, 1966), and changeable" multifactional majority. pp. 235,194. 4U Fedemlist No. 10; Kenyon, p. Iii. 46 James Ceasar, "Political Parties and Presidential Ambition," Journal of Politics, 41 Paul L Ford, Essays on the Constitution of the United States, 1787-1788 vol. 40 (1978), pp. 725, 728. (Brooklyn: Historical Printing Club, 1892), p. 73; Kenyon, pp. 310-312. 47 Kenyon, Antifederalists, pp. 310-311; Elliot, Debates on Adoption of the Con- 42 Federalist No. 63. stitution, vol. 2, p. 295.

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46 WILSON CAREY McWILLIAMS HOW DEMOCRATIC IS THE CONSTITUTION? the Antifederalists defended the older science of politics against the tant than the laws, but, in the end, the laws transform manners in new. their own image. Trained in a rhetoric that exaggerated dangers in order to antici- Certainly, that is what the framers hoped. Thwarted of his cen- pate them, the Antifederalists overstated the immediacy of the threat tralizing ambitions, Madison became, with years, more tolerant of the posed by the Constitution.48 They were sometimes wrong altogether states. He had not changed his aims. He simply became more con- about specific provisions. In the main, however, they understood the vinced that indirect means, flowing especially from the power of Constitution correctly. "Consolidation," the Pennsylvania Antifederal- commerce, would achieve his goal. The railroads, he told George Ban- ists observed, "pervades the whole document." The states, close croft, would "dovetail" the states. (Justice Johnson, concurring in to the people, possessed their confidence and affection and were safe Gibbons v. Ogden, similarly observed that with the "advancement of against direct assault. The shrewd reader, however, would discern a society," commerce necessarily comes to include more and more "certain ... studied ambiguity" in the language of the Constitution, spheres of life.) 55 The new science of politics was too subtle to made more ominous with all "essential" powers given to the central attempt frontal attacks; the older traditions, lacking the clarity and government.r.o Antifederalists were not mollified by reassurances: "It coherence of the classical science of politics from which they derived, is a mere fallacy, invented by the deceptive powers of Mr. Wilson, were too easily confused to do more than fight a stubborn delaying that what rights are not given are reserved." 51 In the combination action. The older idea of democracy now faces final defeat, and its of power and ambiguity, the Antifederalists detected a desire to reduce defenders seem reduced to garbled romanticism. The triumph of the the states, "slowly and imperceptibly," to a "shadow of power," forms new democracy over the old, however, is a bleak enough prospect to without functions.r.2 It would be hard, in the event, to argue that the alarm any surviving citizens into wakefulness. Antifederalists did not read the Constitution properly. Established opinion, especially attachment to states and localities, The Framers' Triumph and Tyranny of the Majority imposed on the framers. By its influence on politics and political men, the older idea of democracy voiced by the Antifederalists profoundly Fifty years after the ratification of the Constitution, Tocqueville affected the use and interpretation of the Constitution and its powers. refined and restated the Antifederalist case. In large states, Tocque- In many ways, American political history can be read as a conflict ville argued, democracy was especially exposed to "tyranny of the between the institutional design of the Constitution, reflecting the majority." Equality denies the authority of one individual over framers' "new science," and public mores, habits, and beliefs. Alexis another, but it suggests the authority of the many over the few. When de Tocqueville gave his opinion that the "manners of the Americans" society is small enough so that the majority Imay be perceived as were the "real cause" of our ability to maintain democratic govern- individuals, equality permits and encourages me to discount it. Con- ment.r.:] However, George Clinton was correct: "Opinion and manners sequently, "small nations have therefore ever been the cradle of po- are mutable," especially given the "progress of commercial society"; litical liberty." Tocqueville, in fact, seemed to reverse the framers' in the long run, the government"assimilates the manners and opinions argument: The instability and turbulence of small states is the mark of the community to ito,,;)4 Clinton's observation suggests an amend- of their freedom, the proof that local tyrannies/ however intrusive, ment to Tocqueville: The manners of the Americans are more impor- can be overthrown. Tocqueville referred to political, not individual, liberty. The small state's limited resources check individual ambition 48 On the rhetoric of the Antifederalists and its origins, see Kenyon, p. xlv, and and direct the citizen to the cultivation of the "internal benefit of the Harvey Mansfield, Jr., The Spirit of Liberalism (Cambridge: Harvard University Press, 1978), pp. 79-80. community," including the nurturing of civic virtue. Large states are 4\1 Kenyon, Antifederalists, p. 45. better suited to great projects and the pursuit of power/ particularly 50 50 Ibid., pp. lxxv, 212-213. because, unlike localities, they are rarely governed by custom. Large 51 Ibid., p. HI. 55 Madison's comment is related in Bancroft's biography, Martin Van Buren 52 Ibid., pp. 265,212-213, 43, 127. (New York: Harper and Bros., 1889). Justice Johnson's comments are only a 53 Alexis de Tocqueville, Democracy in America (New York: Schocken, 1961), little more explicit than Marshall's opinion for the Court (Gibbons v. Ogden, vol. 1, p. 383. 9 Wheat. I, 1824). [.4 Kenyon, Antifederalists, pp. 308-309. ;'0 Tocqueville, Democracy in America, vol. 1, pp. 176-177,179.

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47 WILSON CAREY McWILLIAMS HOW DEMOCRATIC IS THE CONSTITUTION? states, then, may suit private liberty, but large democracies are a par- can could seek asylum from the tyranny of the majority at the feet ticular case. of the king.59 Given the weight of numbers, the idea of equality makes it hard Second, local regimes appealed to the citizen's dignity and for me, even in spirit, to oppose the majority. The majority becomes "engendered and nurtured" his civic spirit. "The public spirit of the overwhelming, impersonat and imponderable. I cannot perceive it as Union is ... nothing more than an abstract of the patriotic zeal of so many faces, since it has become faceless. In the small state, I may the provinces." 60 Finally, local regimes enabled the citizen to learn hope to change enough votes by my eloquence or my skill at elec- the"arts of association" through participation, making him stronger tioneering to transform a minority into a majority. In large states, and more confident in relation to national majorities. Public life such a result is improbable at best. The "tyranny of the majority" became a source of dignity rather than humiliation. Without politics, was not like the coherent majority factions which Madison feared, nor an American "would be robbed of one half of his existence. He was it like the tyrannies of the past. It was an "affair of the mind/' would feel an immense void in the life which he is accustomed to crushing the spirit as it left the body free. Later in the century, James lead, and his wretchedness would be unbearable." 61 Bryce referred to the "fatalism of the multitude/' contending that most Tocqueville did not highly value American political parties, but Americans, taking their impotence for granted, regarded prevailing clearly they belong in his case. Many a Republican is able to defy opinions as "facts of nature" to which they could only adapt. In majority opinions because he can identify them as Democratic here- such circumstances, public criticism of dominant ideas would be rare, sies. Rooted in local ward and precinct allegiances, traditional par- hesitant, probably ignored and, in the end, likely to be forgotten.57 ties-by a hierarchy of personal relationships and partisan fraterni- Along with this tendency to public conformity, Tocqueville ties-connected the "right opinion" of localities to the national regime. observed, went an inclination to private self-seeking and "individual- Similarly, parties appealed to private motives (the desire for jobs ism." Making the citizen feel insignificant, mass democracy affronts and honors, loyalty to one's friends, and hatred for one's enemies), his dignity, losing most of its chance to nurture civic virtue. Public hoping to woo them to the support of public principles and honor. life injures the citizen's self-esteem, and he retreats into private life, Traditional parties were, in crucial ways, the schools for civic educa- especially when established opinion speaks of the right to, and the tion, inculcating the middling sort of civic virtue possible in a vast rightness o( private liberty. As the public sphere grows larger and state.02 more powerfut the private sphere shrinks, the individual breaking Today, however, all these institutions are in disarray. Religion his ties to his fellows one after another, a "freedom" which "threatens is in retreat; the evangelical exceptions to the rule, far from denying in the end to confine him entirely within the solitude of his own the general tendency, proclaim it fervently. Increasingly, states and heart." r.8 localities lack the resources needed to address public problems. Ignore This combination of public freedom and private weakness, with the effects of wari commerce alone has devoured the local community its attendant consequence, nearly uniform adherence to those ideas and reduced local regimes to near impotence. The Supreme Court supported by large majorities, is precisely what Madison had urged conceded long ago that commerce, "the plainest facts of our national and sought to establish. Seeking to avoid the despotism of a visible life," must take precedence over federalism in defining the constitu- majority, the framers had encouraged the tyranny of an invisible one. tional order.63 The Court's decision was probably prudent, but the Freeing the body, they had made it too easy to enslave the soul. ascendancy of economic life over locality implies the supremacy of Tocqueville saw several barriers to tyranny of the majority. Reli- private motives, pursued in accord with presumed "necessities," over gion taught Americans a law beyond the will of the majority and a code of morals at odds with calculations of utility. It commanded love 50 Ibid., vol. I, pp. 355-373; vol. 2, pp. 22-32, 170-177. and sacrifice, the moral signs of nobility. Divine monarchy restrained 00 Ibid., vol. I, p. 18I. and elevated secular democracy, especially since the loneliest Ameri- 01 Ibid., vol. I, p. 293; see also vol. I, pp. 216-226, 331-339. 02 I make a similar argument in "Political Parties as Civic Associations," in 57 Ibid., vol. 1, pp. 298-318. James Bryce, The American Commonwealth (New Gerald Pomper, ed., Party Renewal in America (New York: Praeger, 1980), pp. York: Commonwealth, 1908), vol. 2, pp. 358-368. 51-68. Tocqueville, Democracy in America, vol. 2, pp. 118-120. 03 National Labor Relations Board v. Jones and Laughlin, 301 U.s. 1 (1937).

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48 WILSON CAREY McWILLIAMS HOW DEMOCRATIC IS THE CONSTITUTION? deliberation and choice. That, obviously, is not good news for democ- chair our public forum, able to set the terms of deliberation.lls Spon- racy. sors, at least in television, have little control over content; a program The states and localities have lost more than material power; their with a strong following finds a seller's market. Both sponsors and influence on our characters and their hold on our affections are rapidly media leaders are dominated by their eagerness for programs that declining. Localities are decreasingly stable (approximately a quarter score well in the "ratings." Our choice of programs, however, is no of the population moves every year); trust is necessarily limited and democratic decision. When we turn the dial, we do not make a deci- superficia1.64 More and more, we live in neighborhoods and social sion which consciously involves public standards. (This matters. Not circles that are not political bodies combining all or most of the things long ago, a majority endorsed the idea of "family time" as public policy necessary for the good life, but associations formed on the basis of while expressing distaste for the programs that filled such slots.) We highly specialized similarities of private pursuit and fortune.65 Too certainly do not deliberate. The "ratings" aggregate our private much of what we need and are is left out of such "communities" for choices, and those choices, in turn, tyrannize the media's "men of us to confide much of ourselves to them. We live increasingly private power." At the same time, a host of specialized journals and radio lives, as Tocqueville warned; instability and weakness erode our stations appeals to narrowing private circles. The public sphere ex- capacities for intimacy, life beyond the moment, and mutual depend- pands, the private sphere contracts. Neither speaks the language of ence. Even the family is embattled, rivaled by the impermanent rela- citizenship or democracy. tionships it is coming to resemble. The "culture of narcissism" The citizen finds little in public life to elevate his spirit or support bespeaks the fall of the great barriers to tyranny of the majority.66 his dignity; he finds much that damages both. Political parties, which In public and economic life, the citizen is dwarfed by titanic orga- sought to connect private feelings with public life, are waning along nizations and confused by change. Inequalities of wealth and position with the communities that were their foundation. 69 Increasingly, the are only a part of the problem, though such inequalities undoubtedly citizen retreats into the "solitude of his own heart," denying the coun- restrict access to office or to the rostrum. Those social critics who try the allegiance it needs to address looming crises and himself those suggest that capitalism and private wealth are the root of all the ills possibilities that still exist for friendship and freedom. of American democracy are guilty of making our problems appear Democracy has few footholds in modern America. Strengthening less severe than they are. Wealth can be limited or equalized, although democratic life is a difficult, even daunting, task requiring sacrifice and assembling a majority to support such policies would be difficult. patience more than dazzling exploits. Foreign policy alone forbids Inequalities of organizational power are less tractable. Large-scale dismantling the mass state. We could equalize wealth but not power. organizations are an artifact of the size and complexity of our regime. Wealth-to the extent that it differs from organizational power-at Any organization large enough to affect the market or the govern- least complicates the lives of our organizational oligarchs. Even if, ment's policy is almost certain to be so large as to offend the dignity by some miracle, we could equalize power and make all Americans of its met;nbers. We can regulate these private regimes but only by equal in all things, we would still face the stubborn problem of dignity. increasing public bureaucracy and large-scale organization.67 In the mass state, indignity is inherent. In such a state, equality would The mass media are prototypic of such "private governments." imply that no one matters. I have no desire to minimize the grievances In one sense, the media control who is allowed to address the public of the poor, but it seems to me that indignity, not inequality, is our and on what terms. Private, often self-selected, leaders in the media real complaint. A great many Americans would forgo material gains

------if felt they were listened to or even that their listening mattered. G4 See my essay, "American Pluralism: the Old Order Passeth," in Irving Kristol A great many more would make greater sacrifices if they felt they and Paul Weaver, eds., The Americans, 1976 (Lexington: Heath, 1976), pp. 293- 320. would be known and remembered. (:5 John H. Schaar, "Equality of Opportunity and Beyond," in Roland Pennock Democratic citizenship requires dignity. Neither dignity nor citi- and John W. Chapman, eds., Equality (New York: Atherton, 1967), pp. 228-249. zenship is at home in an unstable society or a large state. Whatever 6ti Christopher Lasch, The Culture of Narcissis/.Yl (New York: Norton, 1979) and 68 Bertrand de Jouvenel, "The Chairman's Problem,;;' American Political Science Haven in a Heartless World (New York: Basic Books, 1977). Review, vol. 55 (1961), pp. 368-372. 67 Grant McConnell, Private Power and American Democracy (New York: Knopf, 611 Gerald M. Pomper, "The Decline of the Party in American Elections," Political 1966). Science Quarterly, vol. 92 (1977), pp. 21-41.

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49 WILSON CAREY McWILLIAMS possibilities we have for democratic life require us to turn govern- ment's resources to the task of protecting and reconstructing local community and private order. We can, at least, repeal laws that place families at a disadvantage in taxation, that weaken local communities, and that are designed to shatter political parties. We can seek laws and policies that enhance and support stability in our relationships, our expectations, and our laws themselves. A "transformation" is required only in a very special sense; we need a movement away from the transformations that have regularly weakened the democratic aspects of our life. Democracy requires, I think, an end to the moral dominion of the great modern project that set humankind in pursuit of the mastery of nature. Democracy is for friends and citizens, not masters and slaves. The ultimate ground for democratic ideas of equality and the highest limitation on democracy's excesses both derive from a universe in which humanity is at home, my dignity is guaranteed by the majesty of the law I obey, and perhaps even "those who have no memorial" do not pass from memory.

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