The Anti-Federalists on the Nature of Representative Government Author(S): Cecelia M

Men of Little Faith: The Anti-Federalists on the Nature of Representative Government Author(s): Cecelia M. Kenyon Source: The William and Mary Quarterly, Third Series, Vol. 12, No. 1 (Jan., 1955), pp. 3-43 Published by: Omohundro Institute of Early American History and Culture Stable URL: http://www.jstor.org/stable/1923094 . Accessed: 08/03/2014 08:03

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This content downloaded from 129.63.184.195 on Sat, 8 Mar 2014 08:03:02 AM All use subject to JSTOR Terms and Conditions Men of Little Faith: The Anti-Federalistson the Nature of RepresentativeGovernment

CeceliaM. Kenyon*

O NE of the gravestdefects of the late CharlesBeard's economic interpretationof the Constitutionis the limited perspectiveit has encouragedin thosewho have acceptedit, and the blockto fruitful investigationof the ideas and institutionsof the RevolutionaryAge to which it has been conducive.Like many theoriesinfluential in both the determinationand the interpretationof historicalevents, Beard'sthesis and its implicationswere nevercarefully analyzed either by himselfor his followers.As a result,its impacton the studyof Americanhistory produced certaineffects not anticipated,which Beardhimself must surelyhave re- grettcd.Ile economicinterpretation employed by him somewhattenta- tively as a tool for analysisand researchquickly became a methodological stereotypeand led to a stereotypicalappreciation of the Constitutionand of the historicalcontext in which it was created. Beard'sfailure-perhaps it was deliberaterefusal-to subjecthis thesis to rigorousanalysis or to define it with precisionmakes it impossibleto label him a clear-cut,thorough-going economic determinist. His position was alwaysambiguous and ambivalent,and in his lateryears he explicitly repudiatedany monistic theoryof causation.'Nevertheless, the thrustof An Economic Interpretation of the Constitution and the effectsof its thesis

* Miss Kenyon is a member of the Departmentof Governmentat Smith College. 1 A critical and definitive study of Beard as an historian has not yet been done. Interesting commentarieson the ambiguity to be found in Beard's thesis are Max Lerner's"Charles A. Beard,"in his Ideas Are Weapons (New York, 1939), pp. I6I- I62, and Richard Hofstadtcr's "CharlesBeard and the Constitution,"in Charles A. Beard: An Appraisal,edited by Howard K. Beale (University of Kentucky Press, 1954). Hofstadter also cites the different attitudes toward the Constitution and its framersreflected in the Beards' The Rise of American Civilization (i927) and their Basic History of the United States (i944). Beale's essay in the same collection, "CharlesBeard: Historian," recounts in broad terms the shifts in Beard's historio- graphical thought throughout his career. It is with the Beard of the earlier period that this essay is concerned, for this was the period of his most influential works.

This content downloaded from 129.63.184.195 on Sat, 8 Mar 2014 08:03:02 AM All use subject to JSTOR Terms and Conditions 4 WILLIAM AND MARY QUARTERLY as applied have frequentlybeen those of simple and uncriticalcommit- ment to a theoryof economicdeterminism. Of theseeffects, the most significanthas beena disinclinationto explore the theoreticalfoundations of the Constitution.In the chapterentitled "The Constitutionas an EconomicDocument," Beard presented the structureof the government,particularly the systemof separationof powersand checks and balances,as the institutionalmeans chosen by the Founding Fathersto protecttheir property rights against invasion by democraticma- jorities.'This interpretation,or variationsof it, has been widely accepted, though it has been frequentlychallenged both directlyand indirectly.8Its tendencyis to disposeof the institutionalthought of the men who framed the Constitutionas ideologicalresponse to economicinterest. The present essayoffers yet anotherchallenge to this position,not by furtherexamina- tion of the Constitutionor its authors,but by analysisof the Anti-Federalist positionof I787-1788.

2Charles A. Beard, An Economic Interpretation of the Constitution (New York, 1913), Ch. VI, especially pp. 154-i64 See also the succinct statement in The Economic Basis of Politics (New York, 1922), pp. 66-67: "Under the circumstances the framers of the Constitution relied, not upon direct economic qualification, but upon checks and balances to secure the rights of property-particularly personal property-against the assaults of the farmers and the proletariat."In Charles and Mary Beard's The Rise of American Civilization (New York, 1927), the theme is continued: "Almost unanimous was the opinion that democracy was a dangerous thing, to be restrained, not encouraged, by the Constitution, to be given as little voice as possible in the new system, to be hamperedby checks and balances."(p. 3i5; cf. p. 326.) It was this position which the Bcards had apparentlyabandoned by the 1940's. The attitude of The Republic (x942), and of The Basic History (i944), is one of appreciationof the authorsof the Constitution,not condemnation. 8 In x936 Maurice Blinkoff published a study of the influenceof Beard on Ameri- can historiographyand came to the conclusion that authors of college history text- books had adopted Beard'sviews "with virtual unanimity."The Influence of Charles A. Beard upon American Historiography,University of Buffalo Studies, XII (May, 1936), p. 36. I have not conducted a comprehensivesurvey, but it seems to me that Blinkoff'sconclusions would probablynot be accuratefor today. For challenges to the Beard position, the reader may consult the survey of re- views of An Economic Interpretation of the Constitution cited in Blinkoff, as well as some of the selections in the Amherst Problems in American Civilization series; Earl Latham, editor, The Declaration of Independence and the Constitution (Boston, 1949), though this collection is, in the opinion of the author, biased in favor of the Beard interpretation.See also B. F. Wright, "The Origin of Separation of Powers in America,"Economica, May, 1933; and "The Federaliston the Nature of Political Man," Ethics, Vol. LIX, No. 2, Part II (January, 1949); and Douglass Adair, "The Tenth Federalist Revisited," William and Mary Quarterly, 3d Series, Vol. VIII (January,195i).

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Perhapsbecause theirs was the losing side, the politicalthought of the Anti-Federalistshas receivedmuch less attentionthan that of the Founding Fathers.Since they fought the adoption of a Constitutionwhich they thought to be aristocraticin origin and intent, and which by Beardian criteriawas inherentlyanti-democratic in structure,there has been some tendencyto characterizethem as spokesmenof eighteenth-centurydemoc- racy. But their theory of republicangovernment has never been closely analyzed,nor have the areasof agreementand disagreementbetween them and the Federalistsbeen carefullydefined. It is the purposeof this essay to explorethese topics.A very large proportionof the peoplein 1787-1788 were Anti-Federalists,and a knowledge of their ideas and attitudesis essentialto an understandingof Americanpolitical thought in the forma- tive yearsof the republic. Implicitin this purposeis the thesisthat the ideologicalcontext of the Constitutionwas as importantin determiningits form as were the economic interestsand motivationsof its framers,and that the failure of Beardand his followersto examinethis contexthas renderedtheir interpretationof the Constitutionand its origin necessarilypartial and unrealistic. Beard'sconclusions rested on two assumptionsor arguments.One was that the framersof the Constitutionwere motivatedby theirclass and perhaps their personaleconomic interests; a great deal of evidence,drawn from more or less contemporaryrecords, was presentedto supportthis partof the thesis.A secondassumption was that the systemof separation of powersand checksand balanceswritten into the Constitutionwas un- democratic.In making this secondassumption Beard was moreinfluenced by the ideas of the Populistand Progressivemovements of his own time, I think,than by a studyof the politicalbeliefs current in 1787.He was pre- occupiedin 1913 with his period'sinterest in reformingthe structureof the nationalgovernment to make it more democratic,which by his standards meant more responsibleto simple majority rule. Thus he judged an eighteenth-centuryframe of governmentby'a twentieth-centurypolitical doctrine.The effect was to suggest by implicationthat the men who in 1787-1788thought the Constitutionaristocratic and antagonisticto popular governmentthought so for the samereasons as Beard.4The evidenceshows 4There is no doubt at all that many of the Anti-Federalistsdid regard the Con- stitution as dangerous and aristocratic,and its framers and supporterslikewise. They were acutely suspiciousof it because of its class origin and were on the lookout for

This content downloaded from 129.63.184.195 on Sat, 8 Mar 2014 08:03:02 AM All use subject to JSTOR Terms and Conditions 6 WILLIAM AND MARY QUARTERLY clearlythat theirreasons were frequentlyand substantiallydifferent. These differencesserve to illuminatethe context of the Constitutionand to il- lustratethe evolutionarycharacter of Americanpolitical thought. II At the centerof the theoreticalexpression of Anti-Federalistopposition to increasedcentralization of power in the nationalgovernment was the belief that republicangovernment was possibleonly for a relativelysmall territoryand a relativelysmall and homogeneouspopulation. James Win- thropof Massachusettsexpressed a commonbelief when he said,"The idea of an uncompoundedrepublick, on an averageone thousand miles in length, and eight hundred in breadth,and containing six millions of white inhabitantsall reducedto the same standardof morals,of habits, and of laws, is in itself an absurdity,and contraryto the whole experience of mankind."'The last part of this statement,at least, was true; history was on the side of the Anti-Fcderalists.So was the authorityof contempo- rarypolitical thought. Thc nameof Montesquicucarried great weight, and he had taught that republicangovernments were appropriatefor small territoriesonly. He was cited frequently,but his opinion would probably not have been acceptedhad it not reflectedtheir own experienceand in- clinations.As colonials they had enjoyedself-government in colony-size packagesonly and had not sought to extendits operationcmpirc-wisc. It is significantthat the variousproposals for colonialrepresentation in Parlia- every evidence of bias in favor of the "aristocrats"who framed it. Note, for example, the attitude of Amos Singletary expressed in the Massachusettsratifying convention: "These lawyers, and men of learning and moneyed men, that talk so finely, and gloss over matters so smoothly, to make us poor illiterate people swallow down the pill, expect to get into Congress themselves; they expect to be managers of this Constitution, and get all the power and all the money into their own hands, and then they will swallow up all us little folks like the great Leviathan; yes, just as the whale swallowed up Jonahl" JonathanElliot, The Debates in the Several State Con- ventions on the Adoption of the Federal Constitutionas Recommendedby the Gen- eral Convention at Philadelphia, in r787, Second Edition, 5 Vols. (Philadelphia, 1896), II, p. i02. See also reference to this attitude in a letter from Rufus King to James Madison, January27, i888. This letter is to be found in the Documentary History of the Constitution of the United States of America, I786-187o (Washing- ton, 1894-1905), 5 vOls.; IV, p. 459. A similar feeling was reported to exist in the New Hampshire convention. See John Langdon to George Washington, February28, 1788, ibid., p- 524- 5 The Agrippa Letters in Paul LeicestcrFord, Essays on the Constitutionof the United States (Brooklyn, 1892), p. 6. See also pp. 91-92.

This content downloaded from 129.63.184.195 on Sat, 8 Mar 2014 08:03:02 AM All use subject to JSTOR Terms and Conditions MEN OF LITME FAITH 7 mentnever grew deep roots during the debatepreceding the Revolution. This associationof self-governmentwith relativelysmall geographical unitsreinforced Montesquicu's doctrine and led to furthergeneralizations. A largerepublic was impossible, it wasargued, because the center of gov- ernmentmust necessarily be distantfrom the people. Their interest would thennaturally decrease; and whenthis happened,"it wouldnot suit the geniusof the peopleto assistin the government,"and "Nothing would supportthe government,in sucha caseas that,but militarycoercion." PatrickHenry argued that republican government for a continentwas im- possiblebecause it was "awork too greatfor humanwisdom."7 Associatedwith the argumentregarding sizc wasthe assumptionthat anypeople who were to governthemselves must be relativelyhomogeneous in interest,opinion, habits, and mores. The themewas not systematically explored,but it apparentlystemmed from the political relativism prevalent at thetime,8 and from the recent experience of conflictsof interestbetween the coloniesand GreatBritain, and laterbetween various states and sec- tionsof the new confederation. It is not easyto measurethe relativestrength of nationaland state sentimentin eitherindividuals or groups,9but it is clearthat the Anti- Federalistswere conscious of, and emphasized,the culturaldiversity of the peoplesin the thirteenstates. They arguedthat no one set of laws couldoperate over such diversity. Said a Southerner,"We see plainly that menwho come from New Englandare different from us."10 He did not Elliot, IV, p. 52. T Elliot, IlI, p. 564; cf. III, pp. 607 ff.; II, pp. 69, 335; the Centinel Lettersin John Bach McMasterand FrederickD. Stone, editors, Pennsylvaniaand the Federal Con- stittion, 1787-1788(Historical Society of Pennsylvania, I888), p. 572; R. H. Lee, "Lettersof a Federal Farmer," in Paul Leicester Ford, Pamphlets on the Constitu- tion of the United States (Brooklyn, i888), p. 288; George Clinton, Cato, in Ford, Essays,pp. 256 ff. " Political relativism had long been a part of the colonial heritage. Seventeenth- century Puritans, who were sure that God had regulated many aspects of life with remarkableprecision, believed that He had left each people considerablefreedom in the choice of their form of government. The secularized legacy of this belief pre- vailcd throughout the era of framing state and national constitutions.Fundamental principles derived from natural law were of course universally valid, and certain "political maxims" regarding the structure of the government very nearly so, but the embodiment of these general truths in concrete political forms was necessarily determinedby the nature and circumstancesof the people involved. 'On this subject see John C. Ranney, "Thc Bases of American Federalism," Williamand MaryQuarterly, Series 3, Vol. III, No. I (January,I946). 10 Elliot, IV, p. 24

This content downloaded from 129.63.184.195 on Sat, 8 Mar 2014 08:03:02 AM All use subject to JSTOR Terms and Conditions 8 WILLIAM AND MARY QUARTERLY wish to be governedeither with or by such men. Neither did the New Englanderswish to share a politicalroof with Southerners."The inhabi- tants of warmer climatesare more dissolutein their manners,and less industrious,than in colder countries.A degree of severityis, therefore, necessarywith one which would crampthe spirit of the other.... It is impossiblefor one code of laws to suit Georgiaand Massachusetts."11To place both types of men underthe same governmentwould be abhorrent and quite incompatiblewith the retentionof liberty.Either the new governmentwould collapse,or it would endeavorto stampout diversityand level all citizens to a new uniformityin order to survive.Such was the reasoningof the leading New England publicist,James Winthrop.His indebtednessto Montesquieuis obvious.His failureto graspthe principles of the new federalismis also clear;for the purposesof this argument,and indeed for almostall of their arguments,he and his colleaguesrefused to considerthe proposedgovernment as one of limited,enumerated powers. They constantlyspoke and wrote as if the scopeand extent of its powers would be the same as those of the respectivestate governments,or of a unifiednational government.12 In additionto the absenceof culturalhomogeneity, the Anti-Federalists emphasizedthe clash of specificeconomic and politicalinterests. These were primarilysectional,18 and were of more acute concernin the South than in the North. In Virginia,for example,George Mason expressed the fear that the powerof Congressto regulatecommerce might be the South's downfall.In Philadelphiahe had arguedthat this powerbe exercisedby a two-thirdsmajority, and he now fearedthat by requiringonly a simple majority"to make all commercialand navigationlaws, the five southern states (whose produceand circumstancesare totallydifferent from those of the eight northernand easternstates) will be ruined.... ."14 It was also arguedin severalof the Southernconventions that a majorityof the East- ern states might conspireto close the Mississippi,15and that they might

From the AgrippaLetters, Ford, Essays, p. 64. 121t was this misunderstandingof the proposed new system which Madison attempted to remove in Federalist39. 18 Curiously enough, the Big-Little State fight, which almost broke up the Con- vention, played very little part in the ratificationdebates. And ironically one of the evidences of ideological unity which made the "more perfect union" possible was the similarity of argumentsput forth by the Anti-Federalistsin their respectivestates. 14 "Objections,"Ford, Pamphlets,p. 331. 15 Elliot, III, p. 326.

This content downloaded from 129.63.184.195 on Sat, 8 Mar 2014 08:03:02 AM All use subject to JSTOR Terms and Conditions MEN OF LIflLE FAITH 9 eventuallyinterfere with the institutionof slavery.16In New Englandand the Middle states, there was less feeling that the interestsof the entire sectionwere in jeopardy,and thereforeless discussionof these concrete issuesand their divisiveeffect. One writerdid strikeout at the Federalist plea for a transcendentnationalism and repudiatedthe notion of sacrific- ing local intereststo a presumedgeneral interest as unrealisticand preju- dicial to freedom."It is vain to tell us that we ought to overlooklocal interests.It is only by protectinglocal concernsthat the interestof the whole is preserved."He went on to say that men enteredinto societyfor egoisticrather than altruisticmotives, that having-oncedone so, all were bound to contributeequally to the common welfare,and that to call for sacrificesof local interestwas to violate this principleof equalityand to subvert"the foundation of freegovernment."17 There was much to be said for Winthrop'sargument. It was an un- equivocalstatement of the principlethat self-interestis the primarybond of politicalunion. It was also an expressionof an attitudewhich has always playCda large part in our national politics:a refusalto sacrifice-some- timies even to subordinate-the welfare of a part to that of the whole. Pursuitof an abstractnational interest has sometimesproved dangerous, and therewas a healthytoughness in the Anti-Federalistinsistence on the importanceof localinterests. But Winthropskirted around the reallydiffi- cult questionsraised by his argument,which were also inherentin the Anti-Fcderalistposition that the size of the United States and the diversity whichexisted among them were too greatto be consistentwith one republicangovernment operating over the whole.No one would deny that a certainamount of unity or consensusis requiredfor the foundationof popular,constitutional government; not very many people-now or in 1787-would go as far as Rousseauand insiston virtuallyabsolute identity of interestand opinion. The Anti-Federalistswere surprisinglyclose to Rousseauand to the notionsof republicanismwhich influencedhim, but they were sensible,practical men and did not attemptto definetheir position precisely.Consequently they left untouchedtwo difficultquestions: how much, and what kind of unity is requiredfor the foundationof any republicangovernment, large or small; and how, in the absenceof perfect uniformity,arc differencesof opinionand interestto be resolved?

e Elliot, IV, pp. 272-273. 11 AgrippaLctters, Ford, Essays,p. 73.

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III -The Anti-Federalisttheory of representationwas closely allied to the belief that republicangovernment could operateonly over a small area. The proposedConstitution provided that the firstHouse of Representatives should consist of sixty-fivemembers, and that afterwardsthe ratio of representationshould not exceed one representativefor thirty thousand people. This provisionwas vigorouslycriticized and was the chief com- ponentof the chargethat the Constitutionwas not sufficientlydemocratic. The argumentwas two-fold: first, that sixty-fivemen could not possibly representthe multiplicityof interestsspread throughout so greata country; second,that those most likely to be left out would be of the more demo- craticor "middling"elements in society.The minoritywho voted against ratificationin the PennsylvaniaConvention calculated that the combined quorumsof the House and Senate was only twenty-five,and concluded that this numberplus the Presidentcould not possiblyrepresent "the sense and views of three or four millionsof people,diffused over so extensivea territory,comprising such variousclimates, products, habits, interests, and opinions.... 18This argument,accompanied with the samecalculus, was repeatedmany times during the ratificationdebate. Almostall of the leadersof the oppositionlaid down what theybelieved to be the requisitesof adequaterepresentation, and there is a remarkable similarityin their definitions.George Mason, speaking in the Virginia Conventionagainst giving the centralgovernment the powerof taxation, based his argumenton the inadequacyof representationas measuredby his criteria:"To make representationreal and actual,the numberof repre- sentativesought to be adequate;they ought to mix with the people,think as they think, feel as they feel,-ought to be perfectlyamenable to them, and thoroughlyacquainted with their interest and condition."19In his Letters of a Federal Farmer, RichardHenry Lee developedthe same idea further: . a full and equalrepresentation is that which possesses the sameinterests, feelings,opinions, and views the peoplethemselves would were they all as- sembled-a fair representation,therefore, should be so regulated,that every I"Address and Reasons of Dissent of the Minority of the Convention of Penn- sylvania to their Constituents,"reprinted in McMasterand Stone, Pennsylvaniaand the Constitution,p. 472. 19Elliot, III,p. 32.

This content downloaded from 129.63.184.195 on Sat, 8 Mar 2014 08:03:02 AM All use subject to JSTOR Terms and Conditions MEN OF LITTLE FAITH I I order of men in the community,according to the common courseof elections, can have a share in it-in order to allow professionalmen, merchants,traders, farmers,mechanics, etc. to bring a just proportionof their best informedmen respectivelyinto the legislature,the representationmust be considerablynu- merous.20

It was the contention of the Anti-Federalists that because of the small size of the House of Representatives,the middle and lower orders in society would not be elected to that body, and that consequently this, the only popular organ of the government, would not be democratic at all. It would, instead, be filled by aristocrats,possibly by military heroes and demagogues.21Why should this be? Lee asserted simply that it would be "in the nature of things." Mason seems to have assumed it without any comment or argument. Patrick Henry reasoned that since the candidates would be chosen from large electoral districts rather than from counties, they would not all be known by the electors, and "A common man must ask a man of influence how he is to proceed, and for whom he must vote. The elected, therefore, will be careless of the interest of the electors. It will be a common job to extort the suffrages of the common people for the most influential characters.22 This argument reflects one of the basic fears of the Anti-Federalists: loss of personal, direct contact with and knowledge of their representatives. They sensed quite accurately that an en- largement of the area of republican government would lead to a more impersonal system, and that the immediate, individual influence of each voter over his representativewould be lessened. The most elaborate explanation of the anticipated results of the electoral process was given by the moderate Anti-Federalist in New York, Melancton Smith. He argued that very few men of the "middling" class would choose to run for Congress, because the office would be "highly elevated and distinguished," the style of living probably "high." Such circumstances would "render the place of a representativenot a desirable one to sensible, substantialmen, who have been used to walking in the plain and frugal paths of life." Even if such should choose to run for election, they

20 Ford, Pamphlets,pp. 288-289. 21 This idea appearedfrequently in Anti-Federalistarguments. See, for example, the "Addressand Dissent of the Minority. .. ," McMasterand Stone, Pennsylvania and the Constiution, pp. 472, 479; Lee, "Lettersof a Federal Farmer,"Ford, Pam- phlets, p. 295; Elliot, III, pp. 266.267,426 (George Mason). 23 Elliot, III, p. 322.

This content downloaded from 129.63.184.195 on Sat, 8 Mar 2014 08:03:02 AM All use subject to JSTOR Terms and Conditions 12 WILLIAM AND MARY QUARTERLY would almostcertainly be defeated.In a largeelectoral district it would be% difficultfor any but a personof "conspicuousmilitary, popular, civil, or legal talents"to win. The commonpeople were more likely to be divided among themselvesthan the great,and "Therewill be scarcelya chanceof their uniting in any other but some great man, unless in some popular demagogue,who will probablybe destituteof principle.A substantial yeoman,of sense and discernment,will hardlyever be chosen."23Conse- quently,the governmentwould be controlledby the great,would not truly reflectthe interestsof all groupsin the community,and would almostcer- tainlybecome oppressive. Anti-Federalistsin Massachusettswere also uneasyabout the capacity of the peopleto elect a legislaturewhich would reflecttheir opinionsand interests.The argumentsemphasized geographical as well as classdivisions, and expressedthe fear and suspicionfelt by the westernpart of the state towardBoston and the othercoastal towns. It was predictedthat the latter would enjoy a great advantageunder the new system,and this prediction was supportedby a shrewdanalysis in the CorneliusLetter: The citizens in the seaport towns are numerous;they live compact; their interestsare one; there is a constantconnection and intercoursebetween them; they can, on any occasion, centre their votes where they please. This is not the case with those who are in the landed interest;they are scatteredfar and wide; they have but little intercourseand connectionwith each other. To con- cert uniform plans for carrying elections of this kind is entirely out of their way. Hence, their votes if given at all, will be no less scatteredthan are the local situationsof the voters themselves.Wherever the seaporttowns agree to centre their votes, there will, of course, be the greatestnumber. A gentleman in the countrytherefore, who may aspireafter a seat in Congress,or who may wish for a post of profit under the federal government,must form his con- nections, and unite his interestwith those towns. Thus, I conceive,a foundation is laid for throwing the whole power of the federal governmentinto the hands of those who are in the mercantileinterest; and for the landed, which is the great interest of this country to lie unrepresented,forlorn and without hope24

23 Elliot, II, p. 246. 24The Cornelius Letter is reprinted in Samuel Bannister Harding, The Con- test over the Ratificationof the Federal Constitution in the State of Massachusetts (New York, i896). See pp. 123-124.

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What the Anti-Federalistsfeared, in other words,was the superiorop- portunitiesfor organizedvoting which they felt to be inherentin the more thickly populatedareas. They sharedwith the authorsof The Federalist the fear of partyand faction in the eighteenth-centuryAmerican sense of those words. But they also feared,as the precedinganalyses show, the es- sence of party in its modernmeaning, i.e., organizingthe vote, and they wanted constituenciessufficiently small to rendersuch organizationun- necessary. This belief that largerelectoral districts would inevitablybe to the ad- vantageof the well-to-dopartially explains the almost completelack of criticismof the indirectelection of the Senate and the President.If the "middling"class could not be expectedto competesuccessfully with the upperclass in Congressionalelections, still less could they do so in state- wide or nation-wideelections. It was a matterwhere size was of the es- sence. True representation-undistortedby party organization-couldbe achievedonly whereelectoral districts were small. IV Tlhe conceptionof the representativebody as a true and faithfulminia- tturcof the people themselveswas the projectionof an ideal-almost a pocticone. Very few of its proponentsthought it could actuallybe real- izcd. In the Anti-Federalistattack on the Constitution,it servedas a foil for an extraordinarypicture of anticipatedtreachery on the part of the representativesto be electedunder the proposedgovernment. No distinc- tion was made on the basisof their method of election,whether directly or indirectlyby the people.All were regardedas potentialtyrants. This attack stemmeddirectly from the Anti-Federalistconception of humannature. They sharedwith theiropponents many of the assumptions regardingthe nature of man characteristicof Americanthought in the late eighteenthcentury. They took for grantedthat the dominantmotive of human behaviorwas self-interest,and that this drive found its most extreme politicalexpression in an insatiablelust for power. These were preciselythe characteristicswith which the authors of The Federalist Paperswere preoccupied.2"Yet the Anti-Federalistschided the Federalists for their excessiveconfidence in the future virtueof electedofficials, and criticizedthe Constitutionfor its failure to provide adequateprotection 26 See B. F. Wright, "The Federalist on the Nature of Political Man," Ethics (January,1949).

This content downloaded from 129.63.184.195 on Sat, 8 Mar 2014 08:03:02 AM All use subject to JSTOR Terms and Conditions 14 WILLIAM AND MARY QUARTERLY againstthe operationof thesetyrannical drives. There is surelyan amusing irony to find the Founding Fathers,who pridedthemselves on their real- ism, and who enjoy an enviablereputation for that qualitytoday, taken to task for excessiveoptimism. But they had to meet this chargeagain and again.Thus Caldwellin the North CarolinaConvention found it "remarkable,-that gentlemen,as an answerto everyimproper part of it [the Con- stitution],tell us that everything is to be done by our own representatives, who are to be good men. There is no securitythat they will be so, or con- tinue to be so."26In New York RobertLansing expressed the samefeeling in a passagestrikingly reminiscent of the famousparagraph in Madison's Federalist51: Scrupleswould be impertinent,arguments would be in vain,checks would be useless,if we werecertain our rulerswould be good men;but for the vir- tuousgovernment is not instituted:its objectis to restrainand punishvice; and all free constitutionsarc formedwith two views-to deterthe governed fromcrime, and the governors from tyranny.27

This and many other similarstatements might have been used inter- changeablyby either side in the debate,for they symbolizedan attitude deeplyembedded and widely dispersedin the politicalconsciousness of the age. There were frequentreferences to "the naturallust of power so in- herent in man";28 to "the predominantthirst of dominionwhich has in- variablyand uniformlyprompted rulers to abusetheir power";29to "the ambitionof man, and his lust for domination";30to rulerswho would be "men of like passions,"having "the same spontaneousinherent thirst for

26 Elliot, IV, p. 187; cf. pp. 203-204, and III, p. 494. Caldwell's statement is very similar to Madison's comment in Federalist xO: "It is in vain to say that enlightened statesmen will be able to adjust these clashing interests, and render them all subservient to the public good. Enlightened statesmen will not always be at the helm." 27 Elliot, 1I, pp. 295-296. Madison'sdeclaration was this: "But what is government itself, but the greatest of all reflectionson human nature? If men were angels, no government would be necessary.If angels were to govern men, neither external nor internal controls on government would be necessary.In framing a government which is to be administeredby men over men, the great difficultylies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself." 28 Mason in Virginia, Elliot, III, p. 32. 29 Henry in Virginia, ibid., p. 436. 'I "Lettersof LutherMartin," Ford, Essays,p. 379.

This content downloaded from 129.63.184.195 on Sat, 8 Mar 2014 08:03:02 AM All use subject to JSTOR Terms and Conditions MEN OF LITTLE FAIT 15 power with ourselves.'" In Massachusetts, another delegate said, "we ought to be jealous of -rulers. All thc-godly men we read of have failed; nay, he would not trust a'flock of Mosese.' 82 It is to be noted that this dreadful lust for power was regarded as a universal characteristicof the nature of man, which could be controlled but not eradicated. Ile Anti-Federalists charged that the authors of the Con- stitution had failed to put up strong enough barriersto block this inevitably corrupting and tyrannical force. They painted a very black picture indeed of what the national representativesmight and probablywould do with the unchecked power conferred upon them under the provisions of the new Constitution. The "parade of imaginary horribles" has become an honor- able and dependable technique of political debate, but the marvelous in- ventiveness of the Anti-Federalists has rarely been matched. Certainly the best achievements of their contemporary opponents were conspicuously inferior in dramatic quality, as well as incredibly unimaginative in dull adherence to at least a semblance of reality. The anticipated abuses of power, some real, some undoubtedly conjured as ammunition for debate, composed a substantial part of the case against the Constitution, and they must be examined in order to get at the temper and quality of Anti- Federalist thought as well as at its content. Their source was ordinarily a listortedinterpretation of some particularclause. One clause which was believed to lay down a constitutional road to legislative tyranny was Article I, Section 4: "TIe times, places, and man- ner of holding elections for senators and representatives,shall be prescribed in each state by the legislature thereof; but the Congress may, at any time, by law, make or alter such regulations, except as to the places of choosing senators." Here was the death clause of republican government. "This clause may destroy representation entirely," said Timothy Bloodworth of North Carolina.83If Congress had power to alter the times of elections, Congress might extend its tenure of office from two years to four, six, eight, ten, twenty, "or even for their natural lives."84Bloodworth and his colleagues feared the worst. In Massachusetts,where debate over this clause occupied a day and a half, the primary fear was that Congress, by altering the places of election, might rig them so as to interfere with a full and

"I Barrellin Massachusetts,Elliot, II, p. '59. 32 White in Massachusetts,Elliot, II, p. 28. Il Elliot, IV, p. 55. " Elliot, IV, pp. 51-52,55-56, 62-63, 87-88.

This content downloaded from 129.63.184.195 on Sat, 8 Mar 2014 08:03:02 AM All use subject to JSTOR Terms and Conditions i6 WILLIAM AND MARY QUARTERLY free expressionof the people'schoice. Pierce suggested that Congresscould "directthat the electionfor Massachusettsshall be held in Boston,"and then by pre-electioncaucus, Boston and the surroundingtowns could agree on a ticket "andcarry their list by a-major vote."3" In the same statethe delegatewho would not trust "a flock of Moseses"argued thus: "Suppose the Congressshould say that none should be electorsbut those worth 50 or a /ioo sterling;cannot they do it? Yes, said he, they can; and if any lawyer .. . can beat me out of it, I will give him ten guineas."36In Vir- ginia, GeorgeMason suggested that Congressmight providethat the election in Virginia should be held only in Norfolk County,or even "go far- ther, and say that the election for all the states might be had in New York. . . ."" Patrick Henry warned, "According to the mode prescribed,Congress may tell you that they have a right to make the vote of one gentlemango as far as the votes of a hundredpoor men."88 Any of these acts would have been a flagrantabuse of power,but no more so than that which Mason and others predictedunder Article II, Section2, which gave to the Presidentthe powerto make treatieswith the advice and consentof two-thirdsof the senatorspresent. This power was believedto be fraughtwith danger,particularly among Southerners, who fearedthat the majorityof Northernstates might use it to give up Ameri- can rights of navigationon the Mississippi.The North would not have a two-thirdsmajority of the entire Senate,of course,but Mason suggested that when a "partial"treaty was involved,the Presidentwould not call into sessionsenators from distantstates, or thosewhose interests would be affectedadversely, but only those he knew to be in favor of it.!9 His colleague, William Grayson,suggested the similarlytreacherous prospect of such a treaty'sbeing rushed throughwhile membersfrom the Southern stateswere momentarilyabsent from the floorof the Senate:"If the senators of the SouthernStates be gone but one hour,a treatymay be madeby the rest... 99 40 This fear at least had some foundationin fact-there was a conflictof interestbetween North and Southover the Mississippi.It would seem that

35 Elliot, II, p. 22. 3a Elliot, 11, p. 28. 87 Elliot, 111,pp. 403-404. 38 Elliot, III, p. 175. Cf. Centinel,McMaster and Stone, Pennsylvaniaand the Con- stitution, P. 598, and James Winthrop in the Agrippa Letters, Ford, Essays,p. 305. 39 Elliot, III,p. 499. 40 Elliot, III, p. 502.

This content downloaded from 129.63.184.195 on Sat, 8 Mar 2014 08:03:02 AM All use subject to JSTOR Terms and Conditions MEN OF LITLE.FAITH 17 the fear expressedin North Carolinaby Abbotton behalfof "thereligious partof the society"was purefantasy: "It is fearedby some people,that, by the powerof makingtreaties, they might make a treatyengaging with foreign powers to adopt the Roman Catholic religion in the United States... " 41 This was not the only provisionobjected to by "thereligious part of the society."They were greatlydispleased with the last clauseof ArticleVI, Section3: "butno religioustest shall everbe requiredas a qualificationto any officeor public trust under the United States."In the same speech quoted above,Abbott reported,presumably on behalf of his constituents, "The exclusionof religioustests is by many thought dangerousand im- politic." For without such, "They suppose . . . pagans, deists, and Ma- hometansmight obtainoffices among us, and that the senatorsand representativesmight all be pagans."42David Caldwellthought that the lack of a religiousqualification constituted "an invitationfor Jews and pagans of everykind to comeamong us," and that sincethe Christianreligion was acknowledgedto be the best for making "good membersof society. . . those gentlemenwho formedthis Constitutionshould not have given this invitationto Jewsand heathens."43Federalist James Iredell reported a pam- phlet in circulation"in which the authorstates, as a very seriousdanger, that the pope of Rome might be elected President."44This unwittingly placed fresh ammunition at the disposal of the opposition.An Anti- Federalistadmitted that he had not at first perceivedthis danger and concededthat it was not an immediateone. "But,"said he, "let us re- memberthat we form a governmentfor millions not yet in existence.I have not the art of divination.In the courseof four or five hundredyears, I do not know how it will work. This is most certain,that Papistsmay occupythat chair,and Mahometansmay take it. I see nothing againstit. There is a disqualification,I believe,in everystate in the Union-it ought to be so in this system."45 41 Elliot, IV, pp. i9I-i92. Abbott was not an Anti-Federalist,but was, according to L. I. Trenholme, in The Ratificationof the Federal Constitutionin North Caro- lina (New York, I932), something of an independent. See p. 178. He voted for ratification. 42 Elliot,IV, p. i92. "I' bid., p. i99. "ibid., p. i95. 4" Ibid., p. 215. This quotation transmitsa sense of the method of Anti-Federalist debate admirably. A similar statement by Amos Singletary of Massachusetts.gives something of the flavor of the thinking done by the honest and pious patriotsof the

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It is to be noted that these fears were fears of the majorityof electors as well as of their elected representatives,and that these statementscan hardlybe said to glow with the spirit of libertyand tolerance.These be- liefs were undoubtedlynot sharedby all Anti-Federalists,but they would not have been expressedso vigorouslyin the conventiondebates had they not representeda sizeablesegment of constituentopinion. Anotherprovision severely and dramaticallycriticized was that which gave to Congressexclusive jurisdiction over the futuresite of the national capital and other propertyto be purchasedfor forts, arsenals,dockyards, and the like.46 It was predicted that the ten-mile square area would become an enormousden of tyrannyand iniquity. In New York George Clinton warned "that the ten miles square . . . would be the asylum of the base,idle, avariciousand ambitious... ."7 In VirginiaPatrick Henry pointed out that this provision,combined with the necessaryand proper clause, gave Congressa right to pass "any law that may facilitatethe execution of their acts," and within the specified area to hang "any man who shall act contraryto their commands. . . without benefit of clergy."48George Mason argued that the place would make a perfect lair for hit-and-runtyrants. For if any of the government's"officers, or creatures,should attempt to oppressthe people, or should actuallyper- petuatethe blackestdeed, he has nothingto do but get into the ten miles square.Why was this dangerouspower given?""9 One man observedthat the Constitutiondid not specify the locationof this site, and that therefore Congresswas perfectlyfree to seat itself and the other officesof governmentin Peking. All in all, a terribleprospect: the Pope as Presi- dent, operatingfrom a basein Peking,superintending a seriesof hangings withoutbenefit of clergy!Or worse. There was no bill of rights in the Constitution.This causedgenuine fear for the securityof some of the libertiesthus left unprotected.The back country, in which opposition to the Constitution was strong: "The Hon. Mr. Singletary thought we were giving up all our privileges, as there was no provision that men in power should have any religion, and though he hoped to see Christians, yet by the Constitution, a Papist, or an Infldel, was as eligible as they. It had been said that men had not degenerated; he did not think that men were better now than when men after God's own heart did wickedly. He thought, in this instance,we were giving great power to we know not whom." Elliot, II, p. 44. 46 Article I, Section 8. 47 The Cato Letters;reprinted in Ford, Essays,p. 265. 48 Elliot III, p. 436. 491bid., P. 431.

This content downloaded from 129.63.184.195 on Sat, 8 Mar 2014 08:03:02 AM All use subject to JSTOR Terms and Conditions MEN OF LITTLEFAIT 19 fear itself, though real and well founded,frequently found expressionin melodramaticallypicturesque terms. The Anti-Federalistssometimes men- tioned freedomof the press and freedomof conscience,50but they were primarilypreoccupied with the failure of the Constitutionto lay down the precious and venerablecommon-law rules of criminal procedure. The Constitutionguaranteed the right of trial by jury in all criminal cases5t exceptimpeachment, but it did not list the proceduralsafeguards associatedwith that right.There was no specificationthat the trialshould be not merely in the state but in the vicinitywhere the crime was com- mitted (which was habituallyidentified with the neighborhoodof the accused);there were no provisionsmade for the selectionof the jury or of the procedureto be followed;there were no guaranteesof the right to counsel,of the right not to incriminateoneself; there was no prohibition against cruel and unusual punishments.In short, there were few safe- guardsupon which the citizen accusedof crime could rely.52Apprehen- sion concerningthe latitudeleft to Congressin this matterwas expressed in several conventions;53 it was Holmes of Massachusetts who painted the most vivid and fearful picture of the possible fate of the unfortunate

50 The expressed fear that Roman Catholicism might be established by treaty did not reflect any strong belief in religious freedom. It was nothing more than sim- plc anti-Catholicism,as the remarks about the lack of a religious qualification for office-holdingclearly indicate. On the other hand, there was some concern expressed in Pennsylvania over the rights of conscientious objectors to military service. See McMasterand Stone, Pennsylvaniaand the Constitution,pp. 480-481. 51Article III, Section 2. The Constitution made no provision for jury trial in civil cases,because different procedures in the severalstates had made the formulation of a general method difficult.The Anti-Federalistsleaped to the conclusion that the lack of a written guarantee of this right meant certain deprivation of it, and they professed to be thoroughly alarmed. But their primary fear centered around what they regarded as the inadequateguarantees of the right of trial by jury in criminal cases. 52If George Washington's word is to be trusted, the actions of the Founding Fatherswith respect to trial by jury and a bill of rights did not stem from any sinis- ter motives. In a letter to Lafayette on April 28, 1788, he gave this explanation: ". . . There was not a member of the convention, I believe, who had the least objection to what is contended for by the Advocates for a Bill of Rights and Tryal by Jury. The first, where the people evidently retained everything which they did not in express terms give up, was considered nugatory. . . . And as to the second, it was only the difficultyof establishinga mode which should not interfere with the fixed modes of any of the States, that induced the Convention to leave it, as a matter of future adjustment."Documentary History of the Constitution,Vol. IV, pp. 6os-6o2. 58 In New York, see Elliot, II, p. 400; Virginia, III, pp. 523 df., North Carolina, IV,pp. 143, 150, 154-155.

This content downloaded from 129.63.184.195 on Sat, 8 Mar 2014 08:03:02 AM All use subject to JSTOR Terms and Conditions 20 WILLIAMAND MARYQUARTERLY citizen who ran afoul of federallaw. Such an individualmight be taken away and tried by strangersfar from home; his jury might be hand- picked by the sheriff,or hold officefor life; there was no guaranteethat indictmentshould be by grand jury only, hence it might be by information of the attorney-general,"in consequenceof which the most innocent person in the commonwealthmay be . . . dragged from his home, his friends,his acquaintance,and confinedin prison... i" "On the whole," said Holmes, ". we shall find Congresspossessed of powers enabling them to institutejudicatories little less inauspiciousthan a certaintribunal in Spain, which has long been the disgraceof Christendom:I mean that diabolicalinstitution, the Inquisition. They are nowhere restrained from inventing the most cruel and unheard-ofpunishments and annex- ing them to crimes;and thereis no constitutionalcheck on them, but that racks and gibbets may be amongst the most mild instrumentsof their discipline."" Should Congresshave attemptedany of these actions,it would have amountedto a virtualcoup d'etat and a repudiationof republicanism."5 The advocatesof the Constitutionargued that such abuseof powercould not reasonablybe expectedon the part of representativeselected by the people themselves.This argumentwas not satisfactoryto the Anti-Fed- eralists.They reiteratedagain and again the universalperfidy of man, especiallymen entrustedwith politicalpower, and emphasizedthe neces- sity of providing adequateprotection against manifestationsof human depravity.They chargedthat the authorsand advocatesof the Constitu- tion were aboutto risk their libertiesand thoseof all of the peopleon the slim possibilitythat the men to be electedto officein the new government would be, and would alwaysbe, good men.56 The Federalistsalso arguedthat electionwould serve as a check,since

"Elliot, II, pp. o09-Ill. 6This method of arguing drove the Federaliststo exasperationmore than once, *aswhen one delegate in the Virginia Convention,an infrequent speaker,lost patience with Patrick Henry's "bugbearsof hobgoblins"and suggested that "If the gentleman does not like this government, let him go and live among the Indians." Elliot, III, p. 580; cf. pp. 632, 644. Also note the reporter'stongue-in-cheek note on Henry's opposition to the President's power of Commander-in-Chief:"Here Mr. Henry strongly and pathetically expatiated on the probability of the President's enslaving America, and the horrid consequences that must result." Ibid., p. 6o. But Henry, who was so good at this technique himself, attacked it in his opponents. See ibid., p. 140. 50 See above, pp. 13-15.

This content downloaded from 129.63.184.195 on Sat, 8 Mar 2014 08:03:02 AM All use subject to JSTOR Terms and Conditions MEN OF LITTLE FAITH 21 the peoplecould removeunfaithful or unsatisfactoryrepresentatives, and since knowledge of this would make the latter refrain from incurring the displeasure'oftheir constituents.This argumentwas flatly rejected. PatrickHenry stated his position emphaticallyduring the courseof his objectionto Congressionalpower of taxation: I shallbe toldin thisplace, that those who areto tax us areour representatives.To this I answer,that there is no realcheck to preventtheir ruining us. Thereis no actualresponsibility. The only semblanceof a checkis the negative powerof not reelectingthem. This, sir, is but a feeblebarrier, when theirpersonal interest, their ambition and avarice,come to be put in contrast withthe happinessof the people.All checksfounded on anythingbut self-love, will not avail.67 In North Carolinathe sameopinion was expressedin a ratherremark- able interchange.Taylor objectedto the method of impeachmenton the ground that since the House of Representativesdrew up the bill of in- lictmnict,and the Senateacted upon it, the membersof Congressthem- selves wvouldbe virtuallyimmune to this procedure.Governor Johnston answcred that impeachmentwas not *anappropriate remedy for legis- lativc misrule,and that "A representativeis answerableto no power but his constituents.He is accountableto no being under heaven but the pcopllewho appointedhim." To this, Taylor respondedsimply, "that it now appearedto him in a still worselight than before."58Johnston stated one of the greatprinciples of representativegovernment; it merelydeep- enedTaylor's fear of Congress.He and his fellow Anti-Federalistsstrongly wishedfor what Madisonhad referredto as "auxiliaryprecautions" against possibleacts of legislativetyranny. V These additionalsafeguards were of two kinds: more explicit limitations writteninto the Constitution,and more institutionalchecks to en- forcethese limitations. In recentyears the Constitutionhas been much admiredfor its brevity, its generality,its freedomfrom the minutiae which characterizednine- tcenth-centuryconstitutions. These qualitieswere fearedand not admired by the Anti-Federalists.They wanted detailedexplicitness which would EtElliot, III, p. i67; cf. p. 327. I Elliot, IV, pp. 32-34.

This content downloaded from 129.63.184.195 on Sat, 8 Mar 2014 08:03:02 AM All use subject to JSTOR Terms and Conditions 22 WILLIAM AND MARY QUARTERLY confine the discretionof Congressionalmajorities within narrowbound- aries.One criticcomplained of "a certaindarkness, duplicity and studied ambiguityof expressionrunning throughthe whole Constitution...." Another said that "he did not believe there existed a social compacton the face of the earth so vague and so indefiniteas the one now on the table."60A North Caroliniandemanded to know, "Why not use expressions that were clearand unequivocal?"1 Later,he warned,"Without the most expressrestrictions, Congress may trampleon your rights."62Wil- liams of New York expressedthe general feeling when he said in that state'sconvention, "I am, sir, for certaintyin the establishmentof a constitutionwhich is not only to operateupon us, but upon millions yet unborn."6"These men wantedeverything down in blackand white, with no latitudeof discretionor interpretationleft to their representativesin Congress.It was an attitude which anticipatedthe later trend toward lengthy constitutionsfilled with innumerableand minute restrictionson the legislatures. To no avail did the Federalistsargue that if future representatives should indeedprove to be so treacherousand tyrannicalas to committhe horribledeeds suggested,then mere guaranteeson paperwould not stop them for a minute.It is easyto call the Anti-Federalistattitude unrealistic, but to do so is to miss a largepart of its significance.Like the Founding Fathers,like all men of their age, they were greatconstitutionalists. They were also first-generationrepublicans, still self-consciouslyso, and aware that their preciousform of governmentwas as yet an experimentand had not provedits capacityfor endurance.Its greatestenemy was man's lust for power, and the only thing which could hold this in check,they were convinced,was a carefullywritten and properlyconstructed constitution. They placed even greateremphasis on the structureof government than did the FoundingFathers, and refusedto take for granted,as the latter did, that the "genius"of the countrywas republican,and that the behaviorof the men to be placed in officewould in general be re- publicanalso.

5' Thomas B. Wait to George Thatcher, January 8, 1788, in "The Thatcher Papers,"selected from the papers of Hon. George Thatcher, and communicatedby Captain Goodwin, U.S.A., The HistoricalMagazine, November and December, i869 (Second Series,Vols. I5-16), No. V, p. 262. 60 Elliot, III, p. 583. "' Elliot,IV, p. 68;cf. pp.70, 153, 154-155, I68. 42 Ibid., p. x67. 6I Elliot, II, p. 339.

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The Anti-Federalists wanted a more rigid system of separation of powers, more numerous and more effective checks and balances, than the Founding Fathers had provided.64They thought this elementary principle of good government, this "political maxim," had been violated, and that corruption leading to tyranny would be the inevitable result. That the doctrine celebrated by Montesquieu did enjoy the status of "maxim" seems unquestionable. Violation of separation of powers was one of George Mason's major objections to the Constitution.6"Richard Henry Lee made the same protest,66and further lamented that there were no "checks in the formation of the government, to secure the rights of the people against the usurpationsof those they appoint to govern... ."67 James Monroe said that he could "see no real checks in it."68It is no wonder that an obscure member of the Virginia Convention, when he rose with great diffidenceto make his only speech, chose safe and familiar ground to cover: That the legislative,executive, and judicial powers should be separateand distinct, in all free governments,is a political fact so well established,that I presumeI shall not be thought arrogant,when I affirmthat no countryever did, or ever can, long remainfree, where they are blended.All the stateshave been in this sentiment when they formed their state constitutions,and therefore have guardedagainst the danger;and every schoolboyin politics must be convincedof the proprietyof the observation;and yet, by the proposedplan, the legislativeand executivepowers are closelyunited....69

In Pennsylvania, whose Revolutionary state constitution had embodied very little of separation of powers, an apparent return to Montesquieu's doctrine led to criticism of the Constitution. In the ratifying convention, one of the amendments submitted had for its purpose "That the legislative, executive, and judicial powers be kept separate. . . ."70 In that same state, the leading Anti-Federalist pamphleteer "Centinel,"who is believed 14 Thus in The Federalist 47, Madison felt obliged to defend the Constitution against this charge. This was first pointed out to me by B. F. Wright and was the origin of the present essay. See the discussionin his article "The Federaliston the Natureof PoliticalMan," Ethics (January,I949), especiallypp. 7 ff. 5 "Objectionsof the Hon. George Mason, to the proposedFederal Constitution. Addressedto the Citizens of Virginia."Ford, Pamphlets,p. 330. '" "Lettersof a FederalFarmer," Ford, Pamphlets,p. 299. 67 Ibid., p. 318. " Elliot, III, p. 219. '9 Ibid., p. 6o8. tOMcMaster and Stone, Pennsylvaniaand the Constitution,p. 423. See also pp. 475-477for discussionback of this.

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to have been eitherGeorge Bryan, a probablecoauthor of the i776 Con- stitutionand formerlyin sympathywith the ideasof Tom Paine on this subject,or his son Samuel,now expressedhimself in the'usualmanner: This mixtureof the legislativeand executivemoreover highly tends to corruption.The chief improvementin government,in moderntimes, has been the completeseparation of the greatdistinctions of power;placing the legislative in differenthands from those which hold the executive; and again severing the judicialpart from the. ordinary administrative. "When the legislativeand executivepowers (says Montesquieu) are unitedin the sameperson, or in the samebody of magistrates,there can be no liberty.""t The Anti-Federalistswere just as unequivocalabout the inadequacy of the Constitution'ssystem of checksand balances.Patrick Henry hit his top form when he took'up the matterin Virginia: "Therewill be no checks, no real balances,in this government.What can avail your spe- cious, imaginarybalances, your rope-dancing,chain-rattling, ridiculous ideal checksand contrivances?"72Later in the Conventionhe arguedthat what checks there were had no practicalvalue at all-for reasonswhich must cloud his reputationas a spokesmanfor the massesimbued with the radicalspirit of Revolutionarydemocracy: "To me it appearsthat there is no check in that government.The President,senators, and representatives, all, immediatelyor mediately,are the choice of the people.73His viewswere echoed by his colleague,William Grayson.74 71 McMasterand Stone, Pennsylvaniaand the Constitution,p. 587. 72 Elliot, III, p. 54. "Ibid., p. i64 He then went on to point out that the British House of Lords constituteda check against both the King and the Commons,and that this check was founded on "self-love,"i.e., the desire of the Lords to protect their interests against attack from either of the other two branchesof the government.This consideration, he said, prevailed upon him "to pronounce the British government superior,in this respect, to any government that ever was in any country. Compare this with your Congressionalchecks. . . . Have you a resting-placelike the British government? Where is the rock of your salvation? . . . Where are your checks? You have no hereditary nobility-an order of men to whom human eyes can be cast up for re- lief; for, says the Constitution,there is no title of nobility to be granted.... In the British government there are real balances and checks: in this system there are only ideal balances."Ibid., pp. i64-i65. 4Ibid., pp. 42I, 563. Grayson also expressedhis preferencefor a form of government-if there was to be a national government at all-far less popular than the one proposed.He favored one strikingly similar to the plan Hamilton had suggested in Philadelphia,a presidentand senate elected for life, and a lower house elected for a three-yearterm. See Elliot, III, p. 279.

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In New York, Melancton Smith returned to the subject several times, arguing, because there would eventually be corruption in Congress, "It is wise to multiply checks to a greater degree than the present state of things requires."" In Massachusetts James Winthrop tied up the con- cept of separation of powers with checks and balances very neatly. "It is noewgenerally understood that it is for the security of the people that the powers of the government should be lodged in different branches. By this means publick business will go on when they all agree, and stop when they disagree. The advantage of checks in government is thus manifested where the concurrence of different branches is necessary to the same act... "7" Thlere can be little doubt that the Anti-Federalists were united in their desire to put more checks on the new government. This was natural, since they greatly feared it. Expressions of the opposite opinion were extremely rare. Rawlins Lowndes in South Carolina remarked casually and withotut elaboration that it was possible to have too many checks on a government." George Clinton and the Pennsylvanian "Centinel" both wvarnedthat a government might become so complex that the people cOUldlnot undcrstand it,78but both men expressed the usual fear of abuse of powcr,79 and "Centinel"paid his respects to Montesquieu and explicitly criticized the inadequacy of checks by the President or the House of Rep- resentativeson the Senate.80 h'lhusno one, so far as I have been able to discover, attacked the gen- cral validity of the system of separation of powers and checks and balances. The Anti-Fcderalists were staunch disciples of Montesquieu on this subject, and they would have found quite unacceptable J. Allen Smith's dictum that "The system of checks and balances must not be confused with democracy; it is opposed to and cannot be reconciled with the theory of popular government."8' Although there was much oratory about the Founding Fathers' devia- " Elliot, 11, pp. 259, 315. tz AgrippaLetters in Ford, Essays,p. II6. 'r Elliot, IV, pp. 308-309. "Clinton's Cato Letters in Ford, Essays, p. 257; Centinel in McMasterand Stone, Pennsylvaniaand the Constitution,p. 569. "Centinel"expressed a desire for a unicamerallegislature. "' Clinton in Ford, Essays, pp. 261, 266; Centinel in McMaster and Stone, l'enn)lvania and the Constitution,p. 6I7. "?hcMaster and Stone, Pennsylvaniaand the Constitution,p. 586-587,475-477. The Spirit of AmericanGovernment (New York, o907), p. 9.

This content downloaded from 129.63.184.195 on Sat, 8 Mar 2014 08:03:02 AM All use subject to JSTOR Terms and Conditions 26 WILLIAM AND MARY QUARTERLY tion from Montesquieu's doctrine, there were surprisingly few proposals for specific alterations in the structure of the new government. Of these, the most important was a change in the relationship between President and Senate. The latter's share in the treaty-makingand appointing powers was believed to be a dangerous blending of executive and legislative power which ought to have been avoided. Possibly because of their recent mem- ory of the role of the colonial governor's council, possibly because there was no clear provision in the Constitution for an executive cabinet or council, the Anti-Federalists saw the Senate very much in the latter's role and expected it to play a very active and continuous part in giving advice to the President. This was clearly contraryto the doctrine of the celebrated Montesquieu-at least it seemed so to them. The result would certainly be some form of joint Presidential-Senatorial tyranny, it was argued, but as to which of the two departments would be the stronger of the "partners in crime," the Anti-Federalists were not agreed. Patrick Henry said that the President, with respect to the treaty- making power, "as distinguished from the Senate, is nothing."82Grayson, with the North-South division in mind, predicted a quid pro quo alliance between the President and "the seven Eastern states." "He will accom- -modate himself to their interests in forming treaties, and they will con- tinue him perpetually in office."88Mason predicted a "marriage' between the President and Senate: "They will be continually supporting and aid- ing each other: they will always consider their interest as united.... The executive and legislative powers, thus connected, will destroy all balances... .84 "Centinel"of Pennsylvania also feared that the President would not be strong enough to resist pressurefrom the Senate, and that he would join with them as "the head of the aristocraticjunto."85 Spencer of North Carolina, in support of a remedy in which all of the above men con- curred, argued that with an advisory council entirely separate from the legislature, and chosen from the separate states, the President "would have that independence which is necessary to form the intended check upon the acts passed by the legislature before they obtain the sanction of laws."86 Although the prevailing opinion thus seemed to be that the President 82Elliot, III, p. 353. 83 Ibid., p. 492. 814Ibid., pp. 493-494. 86 McMasterand Stone, Pennsylvaniaand the Constittaion,p. 586. 86 Elliot, IV, pp. 117-118.

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was not strong enough, there were some who believedthat he was too strong.George Clinton argued that the extensivepowers given to him, combinedwith his long tenureof office,gave him both "powerand time sufficientto ruin his country."Furthermore, since he had no propercoun- cil to assisthim while the Senatewas recessed,he would be without advice, or get it from "minionsand favorites"-or"a great councilof state will grow out of the principalofficers of the great departments,the most dangerouscouncil in a freecountry."87 One man in North Carolina,the only one to the bestof my knowledge, departedfrom the ordinaryAnti-Federalist line of attackand criticized the executiveveto from a clear majoritarianposition. It was Lancaster, who projectedthe hypotheticalcase of a bill which passedthe House of Representativesunanimously, the Senateby a large majority,was vetoed by the Presidentand returnedto the Senate,where it failed to get a two- thirds vote. The House would never see it again, said Mr. Lancaster, and thus, "This is giving a power to the Presidentto overrulefifteen membersof the Senate and every memberof the House of Representa- tives."88 Except for Lancaster,most Anti-Federalistsfeared the Senate more thanthe President,'butall fearedthe two in combinationand wantedsome checksagainst them. The separateadvisory council for the Presidentwas one, and shorter terms and/or compulsoryrotation for Senatorsand President,plus the powerof staterecall of the former,were others.Direct, popularelection of eitherwas not proposed. Since most of the stateexecutives and legislatorsheld officefor annual or biennial terms, one would naturallyexpect the substantiallylonger tenureof the Presidentand Senateto be severelycriticized. There were numerousobjections to the six-yearterm of Senators,some to the four- yearterm of the President,and a few to the two-yearterm of membersof the House of Representatives.It is to be noted, however,that therewas no seriousattempt to shortenthe length of term of any of theseofficers, nor was there any attemptto make the tenureof eitherthe Presidentor the Senatecorrespond with that of the House. It was agreedthat the two housesshould "afford a mutualcheck" on each other,89and that the "stability"provided by the Senate"was essential to good government."' 87 Cato Letters,Ford, Essays,pp. 261-262. 88 Elliot, IV, p. 214. I'l Elliot, II, p. 308 (Lansing). 'I Ibid., p. 309 (Smith).

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The most insistentand repeatedcriticism was the failureof the Consti- tution to providefor the compulsoryrotation of officefor Senatorsand the President."Nothing is so essentialto the preservationof a republican governmentas a periodicalrotation," said GeorgeMason,9' and Melanc- ton Smith pronouncedit "a very importantand truly republicaninstitu- tion."92They greatly feared that Presidentand Senatorswould be per- petuallyre-elected, and in effect hold officefor life. Mason,for example, was quite contentfor the Senateto servesix years,and the Presidenteven eight, but he believedthat without rotation,the new governmentwould become "an elective monarchy."93The Presidentwould be able to per- petuatehimself forever, it was assumed,because his electionwould always be thrown into the House of Representatives.In that body, corruption, intrigue,foreign influence,and above all else, the incumbent'suse of his patronage,would make it possiblefor every man, once elected,to hold office for life. Senatorswould* "hold their office perpetually,"94by cor- ruptingtheir electors,the state legislatures.In New York,where the subject was debatedvery thoroughly,the Anti-Federalistswere challengedto show how such corruptioncould take place,and continuefor life, among a group which was continuouslysubject to popularelection, and which would presumablynot be permanent.To this challengeLansing replied, "It-is unnecessaryto particularizethe numerousways in which public bodiesare accessibleto corruption.The poisonalways finds a channel,and never wants an object."95No distinctionas to comparativetcdrruptibility was madebetween national and staterepresentatives. To Federalist objections that compulsoryrotation constituted an abridgmentof the people'sright to electwhomsoever they wished,Melanc- ton Smith repliedimpatiently, "What is governmentitself but a restraint upon the naturalrights of the people?What constitutionwas everdevised that did not operateas a restrainton their naturalliberties?"90 Lansing concededthat rotationplaced a restrictionon the people'sfree choice-of rulers,but he thought this beneficial:"Tle rights of the people will be bestsupported by checking,at a certainpoint, the currentof popularfavor, and preventingthe establishmentof an influence which may leave to electionslittle morethan the formof freedom."7 A1Elliot, III, p. 485. 9" Elliot, IT,p. 309 (Smith). 92 Elliot, II, p. 310. "5Elliot, II, p. 295. 3 Elliot, III, p. 485. 11"Ibd.,. t iiiI. Ibid., p. 295. It was in this debate that Lansing made the. Madisonian statement quoted above, p. 20.

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The power of recallby state legislatureswas associatedwith compul- sory rotationas a means of preventingsenatorial abuse of power. Not only would it enforcestrict responsibility of senatorsto their electors,but in so doing it would protectthe interestsand preservethe sovereigntyof the separatestates. For these reasons,its adoptionwas stronglypressed in severalof the ratifyingconventions. Beyond these reasons,which were primary,recall combined with rotationwould have a secondarybeneficent result.It would serveto preventthe perpetuationof intra-legislativepar- ties and factions-somethingwhich the Anti-Federalistsfeared quite as much as their opponents.Even if the power of recallshould not actually be used,said Lansing,it would "destroyparty spirit." 8 When his opponents turned this argument against him, and suggested that factions within the statelegislatures might use the power to removegood, honor- able, and faithfulmen from the Senate,the answerwas that the legisla- tureshad not abusedthe power under the Articlesof Confederationand would almostcertainly not do so in the future,and that even if they did, ampleopportunity would be providedfor the displacedsenator to defend himsclf.1Thc influence of "ambitiousand designingmen" would be detected ;'lrl cxpose(l,and thc crroreasily corrected.99 A curious"Trust them, trust theni not" attitudetoward the state legislaturesis thus revealed.They Couldnot bc trustedto refusere-election to unfaithfulor ambitioussena- tors, though they could be trustedto remove the same and to leave in ofliceall those who deservedwell of them and of their constituents. l'rom this it is clearthat the Anti-Federalistswere not willing to trust cither upperor lower house of the proposednational Congress; neither were they willing to trusttheir own state legislaturescompletely, though they had less fear of the latterbecause these could be kept under closer obscrvat ionf. Tlhc same attitudeis indicatedby Anti-Federalistreaction to the re- strictionsplace(d on state legislaturesby Article I, Section Io of the Con- stitution,and to the then potentialreview of both stateand nationallegis- lationl)y thleSupreme Court. Of the latter prospect,frequently said to have been one of the great bulwarkserected against the democraticmajority, very little was said dTuringthe ratificationdebate. There was no explicit provisionfor judicial review in the Constitution,and it is probablynot possibleto prove I" L.iliot, 11, P. 290. I'bAid., p. 299.

This content downloaded from 129.63.184.195 on Sat, 8 Mar 2014 08:03:02 AM All use subject to JSTOR Terms and Conditions 30 WILLIAM AND MARY QUARTERLY conclusivelywhether or not its authorsintended the SupremeCourt to exercisethis power.The evidencesuggests that they probablyassumed it would. Hamilton'sFederalist 78 supportsthis view. The issue was never debatedin the state conventions,and there are almost no referencesto it in any of the Anti-Federalistarguments. Since Federalist 78 was published beforethe Virginia,New York, and North CarolinaConventions met, this lack of discussionis significantand would seem to reflectlack of concern.There was severecriticism of ArticleIII, particularlyin Virginia, but it centeredaround the jurisdictionof the lower federalcourts to be establishedby Congress,not aroundthe SupremeCourt. The issue was entirely one of state courts versus federal courts, not of courts versus legislatures. The single direct referenceto judicial review made in the Virginia Convention-at leastthe only one I have found-suggests that this institu- tion was, or would havebeen, thoroughly congenial to the Anti-Federalists. The statementwas madeby PatrickHenry: Yes, sir, our judges opposedthe acts of the legislature.We have this landmarkto guide us. They had fortitudeto declarethat they were the judiciary,and would opposeunconstitutional acts. Are you sure that your federaljudiciary will act thus? Is that judiciaryas well constructed,and as independentof the other branches,as our state judiciary?Where are your landmarksin this government?I will be bold to say you cannotfind any in it. I take it as the highestencomium on this country,that the acts of the legislature,if unconstitutional,are liable to be opposed by the judiciary.100 There was nothing equivocalabout Henry's attitude. It elicitedno comment. Possiblyneither side wishedto commititself; more likely the statement was lost and forgottenafter brighterflames had issued from the great orator'sfire. What is really significant,however, is the complete absenceof debateover judicialreview. The Anti-Federalistsprobed the Constitutionfor every conceivablethreat, explicit or implicit, to their conceptionof free and populargovernment. If they had consideredjudi- cial reviewsuch a threat,they would surelyhave madethe most of it, and particularlyafter Federalist 78 was published. There was also comparativelylittle attentiongiven to the restrictions which Article I, Section Io of the Constitutionplaced on the state legis- 100 Elliot, III, p. 325.

This content downloaded from 129.63.184.195 on Sat, 8 Mar 2014 08:03:02 AM All use subject to JSTOR Terms and Conditions MEN OF LITTLE FAITH 31 latures. Among other things, the states were forbidden to coin money, emit bills of credit, make anything but gold or silver legal tender for the payment of debts, or pass any law impairing the obligations of contracts. These are the provisions which recent historians have emphasized as designed to protect the property of the conservative class against the on- slaughts of the radical democratic majority. The Anti-Federalists had very little to say about these provisions. The notation of the New York Con- vention's action is significant: "The committee then proceded through sections 8, 9, and Io, of this article [I], and the whole of the next, with little or no debate."'01In Virginia and the Carolinas there was more discussion, but nothing like a full-dress debate, and very little indication of any strong or widespread opposition. In fact, Patrick Henry said that the restrictions were "founded in good principles,"'02 and William Grayson said of the prohibition against paper money, "it is unanimously wished by every one that it should not be objected to."'03 Richard Henry Lee expressed his preference for paper money to be issued by Congress only.'04 Of the few objections or doubts expressed, these were typical. Henry in Virginia and Galloway in North Carolina both expressed a fear that the contract clause might be interpreted to force the states to redeem their respective shares of the depreciated Continental currency and of state securities at face value.'05 Henry was also angry because of the necessary implication that the states were too "depraved" to be trusted with the contractsof their own citizens.'08 With regard to the prohibition of paper money, two men in North Carolina defended the previous state issue as having been a necessaryexpedient in troublesome times, but did not seem to object to the prohibition of future issues.107One man argued against this clause and the supreme law clause on the ground that the effect might be to destroy the paper money already in circulation and thereby create great confusion.'08 His contention was denied.'09 These remarks, none of which expressed direct opposition, were typical. In South Carolina,

101 Elliot, II, p.406. 102 Elliot, 1Il, p. 471. 10 Ibid., p. 566. 104J. C. Ballagh, editor, The Letters o1 RichardHenry Lee, 2 vols. (New York, 1911-1914), pp. 421-422. 10" Elliot, III, pp.3P8-3i9; IV, p. i9o. 106 Elliot, III, p. 156. 10? Ibid., IV, pp. 88, 169.170. 'II Ibid., pp. I>8, I84-185. '01 Ibid., pp. I8I-185.

This content downloaded from 129.63.184.195 on Sat, 8 Mar 2014 08:03:02 AM All use subject to JSTOR Terms and Conditions 32 WILLIAM AND MARY QUARTERLY however, Rawlins Lowndes came out flatly against this restriction, defended the previous issue of paper money and the right of the state to make further issues in the future.110His position appears to have been the exception, at least of those which were expressed openly and publicly on the various convention floors.111 The response of the Anti-Federalists to these important limitations on the power of .the states can accuratelybe described,I think, as one of over- all approbation tempered by some doubts caused by fear that they would be applied retroactively. This attitude is in rather curious contrast with the extremely jealous reaction to other changes in federal-state relations for which the Constitution provided. There were violent objections to federal control over state militia, to Congressional power to tax and to regulate commerce, to the creation of an inferior system of federal courts. All these things brought forth loud cries that the states would be swallowed up by the national government. These important restrictions on the economic powers of the states were received with relative silence. There was apparently very little objection to these limitations on the power of state legislative majorities. It remains to consider the extent to which the general Anti-Federalist distrust of their representatives,particularly those who were to serve in the national government but also those who served in their state legislatures, reflected also a distrust of the majorities who elected them, that is to say, of the people themselves. Tle answer is partly wrapped up in the whole complex of ideas constituting the Anti-Federalist conception of re-

110 Ibid., pp. 289-290. 1 There appears to have been more opposition to the provisions of Article I, Section Io expressedoutside of the Convention than inside. See Trenholme, Ratifica- tion.in North Carolina,p. 4:, and ClarenceE. Miner, The Ratificationof the Federal Constitution in New York, Studies in History, Economics and Public Law, Vol. XCIV, No. 3, Whole No. 214, ColumbiaUniversity (New York, 1921), for the extra- Convention debate in New York. It may be that this was one of the subjects the Anti-Federalistspreferred not to debate for the official record. See Trenholme, pp. i66-i67, for a discussion of the refusal of North Carolina Anti-Federaliststo state in the Convention objectionsto the Constitutionbeing made outside. There was also apparentlya similar situation during the Virginia Convention,where the Federalists objected to what was happening "outdoors."See Elliot, III, p. 237. See also the remarks of Alexander C. Hanson, a member of the MarylandConvention. In discuss- ing these provisions,of which he strongly approved,he wrote, "I have here perhaps touched a string, which secretly draws together many of the foes to the plan." In Aristides, "Remarks on the Proposed Plan of a Federal Government," Ford, Pamphlets,p. 243.

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publican government, which I shall attempt to draw together in the con- cluding section of this essay. Some parts of the answer can be put into the recordhere. The attitude of the Anti-Federalists toward the people as distinguished from their representatives,and toward the general problem of majority rule, was not radically different from that of their opponents. It is a curious and remarkablefact that during the course of this great debate in which the most popular national constitution ever framed was submitted to the public for the most popular mode of ratification yet attempted, there was very little tendency on either side to enthrone "the people" or to defer automatically to their judgment. Neither side showed the slightest inclination to use as its slogan, "Vox populi vox Dei." Rather was the contrary true, and some of the Anti-Federalist expressions of this attitude could easily have fitted into the dark picture of human nature presented in The Federalist. Indeed, the speeches and essays of the Anti-Federalists were peculiarly lacking in the great expressions of faith in the people which are to be found in the writings of Jefferson,and even occasionallyin The Federalist itself. This is partly to be accounted for because their position was a negative one; they attacked the proposed system on the ground that it would be destructiveof liberty. It was therefore perhaps natural that they sometimes expressed fear about what may be called the constituent capacity of the people-the capacity of the people to act wisely in the actual choice of a constitution. They were afraid that the people might not see in the proposed new government all of the dangers and defects which they themselves saw. And there were gloomy comments about lack of stability. Said George Clin- ton in the New York Convention, "The people, when wearied with their distresses,will in the moment of frenzy, be guilty of the most imprudent and desperate measures.... I know the people are too apt to vibrate from one extreme to another. The effects of this disposition are what I wish to guard against."12 His colleague, Melancton Smith, spoke in a similar vein: Ficklenessand inconstancy,he said, were characteristicof a free people; and, in framing a constitutionfor them, it was, perhaps,the most difficult thing to correct this spirit, and guard against the evil effects of it. He was Jersuadedit could not be altogetherprevented without destroyingtheir free- 112 Elliot, II, p. 359.

This content downloaded from 129.63.184.195 on Sat, 8 Mar 2014 08:03:02 AM All use subject to JSTOR Terms and Conditions 34 WILLIAM AND MARY QUARTERLY dom.... This fickle and inconstantspirit was the more dangerousin bringing aboutchanges in the govcrnment.118 It was "Ccntinel," author or son of the author of Pennsylvania's revolutionary Constitution, who expressed the gravest doubts about the capacity of the people to make a wise choice in the form of government, and who expounded a kind of Burkeian conservatism as the best guarantor of the people's liberties. In a passage apparently aimed at the prestige given to the proposed Constitution by the support of men like Washington and Franklin, "Centinel" wrote that "the science of government is so abstruse, that few are able to judge for themselves."Without the assistanceof those "who are competent to the task of developing the principles of government," the people were "too apt to yield an implicit assent to the opinions of those characters whose abilities are held in the highest esteem, and to those in whose integrity and patriotism they can confide... ." This was dangerous, because such men might easily be dupes, "the instruments of despotism in the hands of the artful and designing." "Centinel" then continued: If it were not for the stabilityand attachmentwhich time and habit gives to forms of government, it would be in the power of the enlightened and aspiring few, if they should combine, at any time to destroy the best estab- lishments,and even make the peoplethe instrumentsof their own subjugation. The late revolution having effaced in a great measure all former habits, and the present institutionsare so recent, that there exists not that great re- luctanceto innovation,so remarkablein old communities,and which accords with reason, for the most comprehensivemind cannot foresee the full operation of materialchanges on civil polity; it is the genius of the common law to resist innovation.114 Later in the same series of articles, "Centinel"pronounced "this reluctance to change" as "the greatest security of free governments, and the principal bulwark of liberty."15 This attitude provides an interesting comparison with the unquestioning assumption in the Federal Convention that the proposed Constitution would be submitted to the people for their verdict, 113 Elliot,II, p. 25. 14 McMasterand Stone, Pennsylvaniaand the Constitution,pp. 566.567. 115 Ibid.' p. 655. It may be noted that this Burkeianfriend of Tom Paine had not undertaken to submit the radical revolutionaryConstitution of Pennsylvaniato the people of that state for full, free, and deliberatedebate, but had rushed its ratification through the legislaturewith most unseemlyhaste.

This content downloaded from 129.63.184.195 on Sat, 8 Mar 2014 08:03:02 AM All use subject to JSTOR Terms and Conditions MEN OF LITTLE FAITH 35 and with the level of popularunderstanding of politicalaffairs to which the essaysof the FederalistPapers were addressed. Seriousreservations about the capacityof the people as electorswere implicitin severalof the argumentsnoted above.The advocacyof religious qualificationsfor office-holdingindicated a desire to restrict the choiceof the electorateto certifiedProtestants, and the demandfor compulsoryrotation of senatorsand Presidentrested on the fear that corruption of both state and nationallegislatures by the incumbentsof those officescould not be preventedby the feeble check of popularelection. Perhapsmost importantwas the belief that the people,voting in the large constituenciesprovided for by the Constitution,would either lose elections to their presumedaristocratic opponents because of the latter'ssu- pcrior capacityfor organization,or would themselveslet their choice fall on such aristocrats,or be deceivedby ambitiousand unscrupulous dellmagogles. 'lhcre was no moreconfidence in the inherentjustice of the will of the majoritythan there was in its electoralcapacity. Since the Anti-Fed- cralists wcre skepticalthat constituentopinion would be adequatelyre- tlectc(lin the nationallegislature, they were less inclined than the Fed- eralists to regard the government as the instrument of the people or of the majority.Whlen they did so, there was not the slightesttendency to consider its decisions "right"because they were majority decisions. Rather was therealways some standardof right and justice,independent of the majority'swill, to which that will ought to conform.The Anti-Federal- ists were perfectlyconsistent in their conceptionof politicalbehavior and (lid not regarda majorityas superiorto the sum of its parts,that is to say, of individualmen motivatedby self-interestand subjectto a naturallust for power.There was vcry little discussionof majorityrule and minority rights as fundamentalprinciples of representativegovernment, but the generalattitude of the Anti-Federalistsis, I think, reasonablyclear. They assumed,of course,that in a republicanform of government,the majoritymust rule. But they also assumedthat the will of the majority ought to be limited,especially when the "majority"was a legislativeone. Tiey demandeda bill of lights, with specialemphasis on proceduralpro- tcwtionsin criminal cases, and vehementlyrepudiated the somewhat spuriousFederalist argument that a bill of rights was not necessaryin a governmentruled by the people themselves.To this, James Winthrop rejplied:

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that the sober and industriouspart of the community should be defended from the rapacityand violence of the vicious and idle. A bill of rights, therefore, ought to set forth the purposesfor which the compactis made, and serves to securethe minorityagainst the usurpationand tyrannyof the majority.... The experienceof all mankind has proved the prevalenceof a dispositionto use power wantonly.It is thereforeas necessaryto defend an individualagainst the majorityin a republickas againstthe king in a monarchy.116

The reaction of the Anti-Federalists to the restrictions imposed on state legislative majorities by Article I, Section io of the Constitution is also relevant at this point. These provisions were certainly intended to protect the rights of property against legislative invasion by majorities. If there had been any spirit of doctrinaire majoritarianismamong the opponents of the Constitution, this would surely have been the occasion to express it, and in quite unequivocal terms. There was very little open criticism of these provisions, none on the grounds that they violated the the principle of majority rule or that they were designed to protect the interests of the upper classes.117What criticism there was, was expressed largely in terms of practical considerations. Distrust of majority factions in much the same sense as Madison's was emphatically expressed by the one sector of Anti-Federalism which con- -stituted the most self-conscious minority. Southerners felt keenly the con- -flict of interest between North and South and were vehemently opposed -to surrendering themselves to the majority of the seven Eastern states. One of the reasons for George Mason's refusal to sign the Constitution had been his failure to get adopted a two-thirds majority vote for all laws affecting commerce and navigation. His fears for the South's interests were shared by his fellow Southerners and were frequently expressed in the Convention debates. "It will be a government of a faction," said Wil- liam Grayson, "and this observation will apply to every part of it; for, having a majority, they may do what they please."'18Other colleagues in Virginia joined in this distrust of the anticipated Northern majority uniting to oppress the South.119In North and South Carolina it was much

116Agrippa Letters, Ford, Essays, p. 117. See also Elliot, III, p. 499, for a similar statementfrom William Grayson. 117 See above, footnote iii, for discussionof the possibilityof more criticismex- pressed outsideof the conventions. 118 Elliot,III, p. 492. 119 Ibid.,pp. 152, 221-222.

This content downloaded from 129.63.184.195 on Sat, 8 Mar 2014 08:03:02 AM All use subject to JSTOR Terms and Conditions MEN OF LITTLEFAITH 37 the same.Bloodworth lamented, "To the northof the Susquehannathere arethirty-six representatives, and to the southof it only twenty-nine.They will always outvote us."1'20In South Carolina,Rawlins Lowndes predicted that "when this new Constitutionshould be adopted,the sun of the SouthernStates would set, never to rise again."Why? Becausethe Easternstates would have a majorityin the legislatureand would not hesitateto use it-probably to interferewith the slavetrade, "because they have none themselves,and thereforewant to excludeus from this great advantage."121 There was, then, no doctrinairedevotion to majoritarianism.It was assumedthat oppressionof individualsor of groups might come from majoritiesof the peoplethemselves as well as from kings or aristocrats.

VI For a generationthe Economic Interpretation of the Constitution has exerteda (lcc) and extensiveinfluence over studentsof Americanhistory and government.The conceptionof the Constitutionas the productof a conservativereaction againstthe idealsof the Revolutionhas been widely acceCedt(,and 13card'sanalysis of the document itself commonly followed. Accordingto this interpretation,the Founding Fathers secured their propertyrights by placingcertain restrictions on state legislaturesand by sctting up a governmentin which the system of separationof powers, wvithchecks and balances,indirect elections, staggered terms of office,and a nationaljudiciary with the potentialpower of judicialreview, would restrainthe force of turbulent,democratic majorities. Surprisingly little attentionhas been devotedto the Anti-Federalists,but it is implied that they were the true heirsof the Revolutionarytradition-equally devoted to individualliberty and majorityrule. The Federalists'desire for strong centralgovernment and the Anti-Federalists'fear of such are also considered,but the allegedlyundemocratic structure of the nationalgovernment itself is stronglyemphasized. This aspectof the Beardthesis is open to question. For the objectionsof the Anti-Federalistswere not directedtoward the barriersimposed on simple majorityrule by the Constitution.Advocates and opponentsof ratificationmay have belonged to differenteconomic classes and been motivatedby different economic interests. But they

1'0 Elliot, IV, p. 185. "h Ibid., p. 272.

This content downloaded from 129.63.184.195 on Sat, 8 Mar 2014 08:03:02 AM All use subject to JSTOR Terms and Conditions 38 WILLIAM AND MARY QUARTERLY shareda large body of politicalideas and attitudes,together with a common heritageof politicalinstitutions. For one thing, they shareda profound distrustof man's capacityto use power wisely and well. They believed self-interestto be the dominant motive of politicalbehavior, no matter whether the form of governmentbe republicanor monarchical, and they believedin the necessityof constructingpolitical machinery that would restrictthe operationof self-interestand preventmen entrusted with politicalpower from abusingit. This was the fundamentalassump- tion of the men who wrote the Constitution,and of those who opposed its adoption,as well. The fundamentalissue over which Federalistsand Anti-Federalists split was the questionwhether republican government could be extended to embracea nation,or whetherit must be limited to the comparatively small politicaland geographicalunits which the separateAmerican states then constituted.The Anti-Federaliststook the latter view; and in a sensethey were the conservativesof 1787, and theiropponents the radicals. The Anti-Federalistswere clinging to a theoryof representativegov- ernmentthat was alreadybecoming obsolete, and would have soon become so even had they beensuccessful in preventingthe establishmentof a national.government. Certainly it was a theorywhich could never have providedthe working principlesfor such a government.For the Anti- Federalistswere not only localists,but localistsin a way stronglyrem- iniscentof the city-statetheory of Rousseau'sSocial Contract.According to that theory,a societycapable of being governedin accordancewith the GeneralWill had to be limited in size, population,and diversity.The Anti-Federalistshad no conceptof a GeneralWill comparableto Rous- seau's,and they acceptedthe institutionof representation,where he had rejectedit. But many of theirbasic attitudes were similarto his. Like him, they thoughtrepublican government subject to limitationsof size, population, and diversity;and like him also,they thoughtthe will of the people would very likely be distortedby the processof representation.In fact, their theoryof representationand theirbelief that republicangovernment couldnot be extendednation-wide were integrally related. They regardedrepresentation primarily as an institutionalsubstitute for directdemocracy and endeavoredto restrictits operationto the performanceof that function;hence their plea that the legislatureshould be an exact miniatureof the people,containing spokesmen for all classes,all groups, all interests,all opinions, in the community;hence, too, their

This content downloaded from 129.63.184.195 on Sat, 8 Mar 2014 08:03:02 AM All use subject to JSTOR Terms and Conditions MEN OF LIrTLE FAITH 39 preferencefor short legislativeterms of officeand their inclination,espe- ciallyin the sphereof stategovernment, to regardrepresentatives as dele- gates bound by the instructionsof constituentsrather than as men ex- pectedand trustedto exerciseindependent judgment. This was a natural stage in the developmentof representativegovern ment, but it contained scveralweaknesses and was, I think, alreadyobsolete in late eighteenth- centuryAmerica. Its major weaknesseswere closely akin to those of direct democracy itself,for representationof this kind makesdifficult the processof genuine deliberation,as well as the reconciliationof diverseinterests and opinions. Indeed,it is notable,and I think not accidental,that the bodyof Anti-Fed- cralistthought as a whole showed little considerationof the necessityfor compromise.The Founding Fathers were not democrats,but in their recognitionof the role which compromisemust play in the processof populargovernment, they were far more advancedthan their opponents. It is clear, too, that the same factorslimiting the size and extent of directdemocracies would also be operativein republicswhere representation is regardedonly as a substitutefor politicalparticipation by the whole people.Within their own frame of reference,the Anti-Federalistswere quite right in insisting that republicangovernment would work only in relativelysmall states,where the populationwas also small and relatively homogeneous.If there is great diversityamong the people,with many interestsand many opinions,then all cannotbe representedwithout making the legislatureas large and unwieldyas the citizen assembliesof an- cientAthens. And if the systemdoes not lend itself readilyto compromise and conciliation,then the basis for a working consensusmust be con- siderablehomogeneity in the people themselves.In the opinion of the Anti-Federalists,the Americanpeople lacked that homogeneity.122This Rousseauisticvision of a small, simple, and homogeneousdemocracy may have been a fine ideal, but it was an ideal even then. It was not to te found even in the small states,and none of the Anti-Federalistspro- duced a satisfactoryanswer to Madison'sanalysis of the weaknessesin- 122 I do not mean to suggest that the Anti-Federalistattitude concerning homogeneity and what modern social scientistsrefer to as consensuswas hopelesslywrong. A degree of both is necessaryfor the successful operation of democracy, and the conceptitself is an extremelyvaluable one. I would merely contend that the Federalist estimateof the degree requiredwas both more liberaland more realistic.On the subject of the extent to which the Americanpeople were united in tradition,institutions, and ideasin 1787-1788,see Ranncy,"Bases of AmericanFederalism."

This content downloaded from 129.63.184.195 on Sat, 8 Mar 2014 08:03:02 AM All use subject to JSTOR Terms and Conditions 40 WILLIAM AND MARY QUARTERLY herent in republicanismoperating on the small scale preferredby his opponents. Associatedwith this theoryof representationand its necessarylimita- tion to small-scalerepublics was the Anti-Federalists'profound distrust of the electoraland representativeprocesses provided for and impliedin the proposedConstitution. Their ideal of the legislatureas an "exactminia- ture"of the people envisagedsomething not unlike the resulthoped for by modern proponentsof proportionalrepresentation. This was impossible to achievein the nationalCongress.123 There would not and could not be enough seats to go around.The constituencieswere to be.large- the ratio of representativesto populationwas not to exceedone per thirty thousand-and each representativemust thereforerepresent not one, but many groupsamong his electors.And whereasMadison saw in this process of "filtering"or consolidatingpublic opinion a virtue, the Anti-Fed- eralistssaw in it only danger.They did not think that a Congressthus electedcould truly representthe will of the people,and they particularly fearedthat they themselves,the "middlingclass," to use MelanctonSmith's term,would be left out. They fearedthis becausethey saw clearlythat enlargedconstituencies would requiremore pre-electionpolitical organization than they believed to be eitherwise or safe.Much has beenwritten recently about the Found- ing Fathers'hostility to politicalparties. It is said that they designedthe Constitution,especially separation of powers,in order to counteractthe effectivenessof parties.124This is partlytrue, but I think it worth noting that the contemporaryopponents of the Constitutionfeared parties or factionsin the Madisoniansense just as much as, and that they fearedpar- ties in the modern sense even more than, did Madison himself. They feared and distrustedconcerted group action for the purposeof "center- ing votes"in orderto obtaina plurality,because they believedthis would distortthe automaticor naturalexpression of the people'swill. The neces- sity of such actionin largeelectoral districts would work to the advantage of the upperclasses, who, becauseof their superiorcapacity and opportu- nity for organizationof this kind, would elect a disproportionateshare of representativesto the Congress.In other words,the Anti-Federalistswere acutelyaware of the role that organizationplayed in the winning of elec- 128 Nor for that matter, has it been the pattern of representationin state legislatures. 124 See, e.g., E. E. Schattschneider,Party Government (New York, I942), pp. 4 ff.

This content downloaded from 129.63.184.195 on Sat, 8 Mar 2014 08:03:02 AM All use subject to JSTOR Terms and Conditions MEN OF LITME FAIT 41 tions, and-they were not willing to acceptthe "organized"for the "real" majority.Instead they wanted to retain the existing system, where the electoralconstituencies were small, and where organizationof this kind was relativelyunnecessary. Only then could a man vote as he saw fit, confidentthat the resultof the electionwould reflectthe real will of the peopleas exactlyas possible. Distrustof the electoralprocess thus combinedwith the localistfeel- ings of the Anti-Federaliststo producean attitudeof profoundfear and suspiciontoward Congress.That body, it was felt, would be composed of aristocratsand of men electedfrom far-awayplaces by the unknown peoplesof distantstates. It wouldmeet at a yet undesignatedsite hundreds of miles from the homes of most of its constituents,outside the jurisdiction of any particularstate, and protectedby an armyof its own making. When one sees Congressin this light, it is not surprisingthat the Anti- Federalistswere afraid,or that theyhad little faith in electionsas a means of securingresponsibility and preventingCongressional tyranny.125 Their demandfor more limitationson Congressionalpower was per- fectlynatural. These were believedto be necessaryin any governmentbe- cause of the lust for power and the selfishnessin its use which were inherentin the natureof man. They were doublynecessary in a government on a nationalscale. And so the-Anti-Federalistscriticized the lati- tude of power given to Congressunder Article I and calledfor more de- tailed provisionsto limit the scope of Congressionaldiscretion. We are certainlyindebted to them for the movementthat led to the adoptionof the Bill of Rights,though they were more concernedwith the traditional common-lawrights of procedurein criminalcases than with the provisions of the First Amendment.They were at the same time forerunners of the unfortunatetrend in the nineteenthcentury toward lengthy and cumbersomeconstitutions filled with minute restrictionsupon the various agenciesof government,especially the legislativebranch. ITe gen- eralityand brevity which made the national Constitutiona model of draftsmanshipand a viable fundamentallaw inspiredin the Anti-Fed- eralistsonly fear. 121 It is worth notingugain that the abusesof powerdwelt upon by the Anti- Federalistswere usually extreme ones, almost amounting to a completesubversion of republicangovernment. They did not regardas of any value the Federalists'argu- mentthat a desireto be re-electedwould serve to keepthe representativesin line. The Federalistshad no clear idea of politics as a profession,but they were close to such a notion.

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Tney repeatedlyattacked the Constitutionfor its alleged departure from Montesquieu'sdoctrine of separationof powers, emphasizedthe inadequacyof the checksand balancesprovided within the governmental structure,and lamentedthe excessiveoptimism regarding the character and behaviorof electiverepresentatives thus revealedin the work of the FoundingFathers. It is significant,in view of the interpretationlong and generallyaccepted by historians,that no one expressedthe belief that the systemof separationof powersand checksand balanceshad beendesigned to protectthe propertyrights of the well-to-do.Their positiveproposals for remedyingthe defects in the system were not numerous.They objected to the Senate'sshare in the appointiveand treaty-makingpowers and called for a separateexecutive council to advisethe Presidentin the performanceof these functions.Shorter terms were advocatedfor Presi- dent and Congress,though not as frequentlyor as stronglyas requiredrota- tion for senatorsand President.No one suggested judicial review of Congressionallegislation, though Patrick Henry attackedthe Constitu- tion becauseit did not explicitlyprovide for this safeguardto popular government. Had the Constitutionbeen altered to satisfy the major structural changes desired by the Anti-Federalists,the House of Representatives would have been considerablylarger; there would have been four rather than three branchesof the government;the Presidentwould have been limited, as he is now, to two terms in office;the senatorswould have been similarlylimited and also subjectto recall by their state governments.These changesmight have been beneficial.It is doubtfulthat they would have pleasedthe late CharlesBeard and his followers;it is even more doubtful that they would have facilitatedthe operationof unre- strained majority rule. Certainlythat was not the intention of their proponents. The Anti-Federalistswere not latter-daydemocrats. Least of all were they majoritarianswith respectto the nationalgovernment. They were not confidentthat the peoplewould alwaysmake wise and correctchoices in eithertheir constituentor electoralcapacity, and many of them feared the oppressionof one sectionin the communityby a majorityreflecting the interestsof another.Above all, they consistentlyrefused to accept legislativemajorities as expressiveeither of justiceor of the people'swill. In short,they distrustedmajority rule, at its sourceand throughthe only possible means of expressionin governmentalaction over a large and

This content downloaded from 129.63.184.195 on Sat, 8 Mar 2014 08:03:02 AM All use subject to JSTOR Terms and Conditions MEN OF LITTLE FAITH 43 populousnation, that is to say, throughrepresentation. The last thing in the world they wanted was a nationaldemocracy which would permit Congressionalmajorities to operatefreely and without restraint.Propo- nents of this kind of majorityrule have almost without exceptionbeen advocatesof strong,positive action by the nationalgovernment. The Anti- Federalistswere not. Their philosophywas primarilyone of limitations on power,and if they had had their way, the Constitutionwould have containedmore checksand balances,not fewer. Indeed it seems safe to say that the Constitutioncould not have been ratifiedat all had it con- formedto the standardsof democracywhich are implicit in the interpretationof Beardand his followers.A nationalgovernment without separationof powersand checksand balanceswas not politicallyfeasible. In this respect,then, I would suggestthat his interpretationof the Constitu- tion was unrealisticand unhistorical. The Anti-Federalistsmay have followed democraticprinciples within the sphereof stategovernment and possiblyprovided the impetusfor the extensionof powerand privilegeamong the massof the people,though it is significantthat they did not advocatea broadeningof the suffragein 1787-1788or the directelection of the Senate or the President.But they lackedboth the faith and the visionto extendtheir principles nation-wide. It was the Federalistsof I787-1788 who createda national framework vwhichwould accommodate the laterrise of democracy.

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