What did the federalist debates do?

Here we conclude our re-running of our colossal series on the Federalist debates that gave us our Constitution by wrapping up its impact on the U.S., in its own time, and over the centuries since 1787.

We haven’t hit all the topics of debate in this series; for example, we haven’t looked at the worthy Anti-Federalists criticisms of the Supreme Court (they balked at the idea of having an unelected, lifetime-term body that could overturn the laws of Congress as it pleased; as usual, the Federalists replied that any body in service of the just Constitution would never become tyrannical). We have also left out the demand for a Bill of Rights, which was general on both sides, Federalist and Anti-Federalist (more on that in a later series).But we have gotten a sense of the categories of debate in general: the Anti-Federalists wanted to keep government as small and, crucially, as local as possible to avoid its corruption; and the Federalists wanted to give the federal government elastic powers to meet unforeseen dilemmas in the future, as well as to control the all-too-real and familiar dilemmas the young nation was already facing.

But in a larger sense, the Federalist debates were important not for their content, but for their happening at all. After popularly elected delegates met to create a new body of national laws, the entire nation was invited to participate in the debate over their ratification as our Constitution. Every aspect of the proposed Constitution was dissected and put under the microscope, and dissenters were free to publish their dissent, their criticisms and fears, in the free press. 85 Federalist Papers were published between October 1787 and August 1788. This is a far cry from the usual press treatment of big issues today, which usually feature a flurry of intense coverage for a week or so, then a near-complete dropping off of interest. For nearly a year the nation weighed the pros and cons of the proposed Constitution and the government it would create in a public forum where no holds were barred. Then the states elected delegates to participate in ratification conventions, and in most states people thronged outside the building where the conventions met, waiting to hear what they had chosen—to accept the new Constitution or not. Over 10 months, the required 9 states voted to ratify, which the caveat that a Bill of Rights be written and added to the Constitution as the first order of business of the new government.

This democratic process must have inspired some Americans to believe in the Federalist promise that republican virtue could be relied on even in a large population. No one had been censored, no one arrested or imprisoned, no one lost their property or their livelihood as a result of the position they took on the Constitution. Americans must also have been inspired by the near-blinding modernity of the ideas in the Constitution, and the futuristic nation they at once created and imagined.

We have seen over the centuries since 1788 that the Anti-Federalists got a lot right; their questions about state power to counter federal power, the danger of giving any government body unlimited power to act in the name of national security, and the tendency of power to corrupt have been proven pertinent many times over. Yet we see that the Federalists’ main precept was correct: any government, even a small, local, state government, can become corrupt if people lose faith in the principles of democracy. Keeping things local is no guaranty against corruption. And we can’t rely on one segment of the population—the small farmer or, to add today’s like category, the blue-collar worker—to provide all the republican virtue. Everyone has to be raised up in the tradition and discipline of democracy. Every citizen has to be committed to upholding the Constitution. And the most committed citizens should serve in our government—not the richest or celebrity citizens. If we believe in the principles the Constitution offers, we will send people to Washington who also believe in them, and will actively uphold them in the face of temptation to corruption.

And so we leave the U.S. in 1788, with its newly ratified Constitution, and centuries ahead of it to work out the million problems old and new, expected and completely unanticipated, that would challenge the strength of that document and the commitment of those citizens. We should take with us as we go a bit of their republican virtue to solve the problems we face in our own time.

Representation to Congress: not a simple solve for the Federalist Debates

Here in the second to last post in the re-running of our colossal series on the Federalist debates that gave us our Constitution we look at the final large-scale thorny issue dividing Federalists and Anti-Federalists: representation to Congress.

We talked last time about the division of the Legislature into two bodies, the House and Senate, and how contentious this internal division in an already divided, three-branch federal government was for Anti-Federalists. After it was adopted, the question of how to people this Congress arose, and the debate fell out along now-familiar lines: whether members of Congress should be elected by the people directly, or indirectly, by some carefully considered elite.

Before this issue could be addressed, however, the question of how many members would be elected had to be solved. The larger states believed they should have more representation than the smaller states, and would have established a majority-rule system where might made right. Smaller states, of course, did not want to be marginalized in this way, and accused the large states of promoting tyranny of the majority. Smaller states also did not want to get locked into a small number of representatives in Congress when most of them planned on expanding west in the near-term. If they did this, and were much bigger in 1817 than they were in 1787 when their representation was set in stone, they would be large states with small representation. The large states in 1787 had the same plans to expand—when Virginia’s western border was the Pacific (as was that state’s plan), it would need even more representatives than it had been allotted in 1787.

On this issue, Anti-Federalists and Federalists were able to work together more, as the question of how many representatives each state could send was not really about the power of the federal government, and with relatively minimal debate the Connecticut Compromise was adopted. This created a system in which each state, regardless of its size now or in the future, would send 2 members to the Senate and one Representative to the House for every 30,000 people.

The idea of equal numbers of Senators for all states, and proportional representation in the House did not pit Federalists and Anti-Federalists against each other. But the reality of defining “proportional representation” did. Anti-Federalists pointed out the impossibility of one person capably and honestly representing the wants and needs of 30,000 people. The Federalists replied that lowering the number (1 Rep for every 1,000 people, for example) would not solve the problem of one person representing multiple constituents—any time one person represents a group there is no way that person can fully represent their wants and needs unless that group is fully united. Since it is very rare for any group to be fully united, no representative can ever do justice to that group. But as usual, the Federalists used this flaw of human nature as a strength: the one thing that can give a Representative some authority to say that he accurately represents his many constituents is elections themselves. In elections, the people are forced to choose someone they think will do the best possible job representing their basic wants and needs. Not everyone will be happy, but the majority of the people will be satisfied, and if too many people are not satisfied, then they elect someone new. Elections will also force the people to focus their wants and needs into a few main issues, on which candidates will campaign. What the people really want most will come out during election campaigns, and the person who best represents what the people think is most important will go to the House.

The Federalists also pointed out, yet again, that the growing nation would soon have so many millions of citizens that it would be impossible to have 1:1 or even 1:1,000 or 1:100,000 representation in the House. The House had to be a figurative representation of the nation; it could not be a literal one.

This argument, of course, is based on the premise that the people would vote directly for their House Representatives. Some Federalists were against this, but they knew that there was no way the Anti-Federalists, or the majority of the American people, who had just fought a war to ensure their political representation, would accept a Congress made up entirely of indirectly elected members. So the Federalists went along fairly easily with the proposal that the House would be directly elected and the Senate would not. Senators would be chosen by the state legislatures, which meant the people had an indirect voice in the process, as they directly elected those state legislators. But in reality, the legislators could choose whomever they liked, and they would ideally choose someone who seemed the most capable, and the most likely to bring honor to the state, not simply someone who was the most popular. This solution made it possible to test the Federalists’ theory that if a small elite of educated, passionately sincere and devoted republican patriots controlled the federal government, that government could never become corrupted.

The big compromise on representation at the Constitutional Convention, of course, was on slavery, not the Senate. Southern states wanted their entire population counted when it came to apportioning House Representatives, and that included enslaved people. The northern states, of course, rejected this as the sham it was—no Representative from the south was going to represent the wants and needs of enslaved people. Enslaved Americans were not considered citizens, and had none of the rights of citizens. They were governed by black codes and slave laws and the whims and whips of individual slaveholders. To pretend that the south needed Representatives for these people was to turn the whole idea of representative government into a cruel parody. The whole issue of counting the enslaved in state populations was originally about taxation, and is a different topic than we are pursuing here—though we will come back to it in the future. For now, we note this compromise, see that it is really outside the scope of arguments about the size and strength of the federal government, and close.

Next time, we will wrap up—at last!—our series with some reflections on what we can take from the Federalist debates.

Federalist debates over the shape of the American Republic

Rerunning our series on the Federalist debates; welcome to part 6, where we rebound off the Federalists’ weak attempts to claim that the federal government they envisioned could indeed have its power checked by the states (which was not really true) to their more powerhouse vision of what a modern, American republic would really mean.

We, like the Federalists, have looked at the traditional republics of antiquity and seen that they were all very small geographically, very dependent for their success on the civic virtue of their citizens, and, perhaps consequently, very short-lived. The Anti-Federalists worried that the United States was already far larger geographically and population-wise than any previous republic, and that any central, federal government would necessarily be far removed, physically and spiritually, from the heart of the people—the farmer. Anti-Federalists said that the honest, virtuous yeoman farmer was and should be the backbone of the nation, because he could be counted on to do the right thing (the merits—or lack thereof—of this dubious argument can be set aside for now). The whole point of government should be to educate the people in civic virtue by giving them local government they could be actively involved in. That could not happen in a federal state, especially one where the states had no right to check the power of the federal government. What you want in a republic, the Anti-Federalists said, is all the people involved in all the government all the time, united in their virtue and commitment. And in this argument, they were backed by historical opinion.

The Federalists rejected this. Instead, they offered the world a radical new definition of a republic. Direct popular rule, they said, is exactly what you don’t want in a republic. Why? Because whenever human beings gather together, they fight. It’s just human nature. People break into factions. They group together, united by some common interest they discover or invent, and then they want to push their own agenda, gaining more rights for themselves at the expense of the common good in general, and the “them” they see as threatening them in specific. This “us against them” mindset is unavoidable in human society. And it leads to one thing: tyranny of the majority.

We’ve discussed this concept in several places on the HP; here, the thing to focus on is that the classical republican ideal of a populace united in virtue is a complete fantasy, according to the Federalists. No population is ever going to be united, for a good or a bad goal. It will break into factions and each faction will attempt to impose its way on the others (tyranny). And even if the majority of the population is in one faction, it’s still wrong, the Federalists insist, for that majority to impose its will on others (tyranny of the majority). As we put it elsewhere, this tyranny of the majority:

…ends up perverting democracy by forcing injustice on the minority of the public. Slavery is a good example. Most Americans in the slave era were white and free. White and free people were the majority, and they used their majority power to keep slavery from being abolished by the minority of Americans who wanted to abolish it. The rights of black Americans and white abolitionists were trampled by the tyranny of the majority.

Before Brown v. Board of Education in 1954, the majority of Americans were fine with segregated schools, for various reasons. They used their majority power to oppress the minority of Americans who were black, or who were white and wanted desegregation. In each of these examples, the majority is imposing and enforcing injustice, which is incompatible with democracy. They are tyrannizing rather than governing.

Faction, the Federalists say, will always trump the goal of a united populace. So what do you do to get real democracy? You avoid direct rule and embrace faction.

Here’s the argument: work with factions, don’t try to suppress them with an education program to create virtuous citizens, because that will never work. Instead, embrace all the problems the Anti-Federalists see with creating an American republic—the large size of the nation, representatives working far away from their constituents, farmers not having time to travel to a far away central government. All of these things will make a new kind of republic possible. First, the large size of the nation means that many diverse people will populate the country and it will be hard for them to join together to make large factions that threaten tyranny of the majority. The large size of the nation also means that if a faction does gain traction in one region, it will likely remain in that region—it won’t spread, because the factors in its region that promoted its growth won’t be found in other regions. And in a large nation, representatives will be physically far away from the people, and that’s good because it keeps them away from the pressure of the mob, from factions banging down their doors.

And in our large nation, members of Congress will have such diverse constituencies that they will have to compromise in order to try to satisfy as many people as possible (something that gerrymandering was quickly invented to remedy). But even with gerrymandering, this did work for many decades: one great example is slavery. The two main American political parties of the first half of the 19th century, the Whigs and the Democrats, were evenly and equally represented North and South. There were no red or blue states—each region had Whigs and Democrats. Because of this, few politicians could take a bold stance on the divisive issue of slavery, because politicians North and South knew that they had pro- and anti-slavery constituents. And so there was compromise on slavery, from the big compromises we all know, like the Missouri Compromise and the Compromise of 1850, to many smaller ones. Only a few people, like John C. Calhoun of South Carolina or Thaddeus Stevens of Pennsylvania had unified enough constituencies to take hard-line stances on slavery (Calhoun for, Stevens against).

Now, we regret today that slavery was ever an issue of compromise, but those compromises did prevent a civil war from breaking out in, say, 1820, when it would have been even more devastating to the young, unstable nation than it was in the 1860s. And we see that as the sections (North and South) became more polarized throughout the 1850s, the Whig party disintegrated, its Northern members unwilling to compromise over slavery and leaving to join the antislavery Free Soil or Republican parties, and the Democratic party became a South-only party, completely devoted to promoting and protecting slavery and nothing else. The Democratic party was able to exercise tyranny of the majority over the other parties for many years because of its unity, its factional devotion to one “us against them” issue. And so the civil war came.

So the Federalists argued that faction could be controlled by sheer size, on the one hand, but also by virtue, on the other. Yes, Anti-Federalists, there is still need for citizen virtue, said the Federalists, but instead of all the citizens needing to be ideal people who rise far above human nature’s need for tyranny and faction, only a few citizens need to do that. First of all, only a few citizens really can do that, said the Federalists, people who are well-educated and devoted to justice. If we urge our best people to go into government, then not only will our government be good, but the average person will respect their leaders and their government, and will give up some of their factional mob nature and support both instead.

In a way, the federal government in this vision of a republic is like a Play-doh fun factory: the misshapen mass of factional mob demands are fed into Congress, where members of Congress shape them into good laws by focusing on what is best for the people. In go irrational, factional demands, and out come good laws. And those good laws will inspire and educate the people, and make them less factional. So public virtue does not rise from the ground up, but moves from the top down.

This was indeed a vision of the republic that was completely new. It turned classical republicanism on its head. It said that allowing the people direct rule was just a way to make sure that their destructive factional demands destroyed their government. The Federalists said that removing the government from the destructive impulses of the people was the best way to improve the people over time.

It seems clear today that the Federalists were right to dismiss the Anti-Federalists’ devotion to the classical ideal, which was based on a fantasy version of heroic farmer politicians who would never do wrong, all citizens having direct control over government, local governments that would never become corrupted, government devoted to educating its citizens rather than governing them, and sovereign states united by ties so weak that any conflict could dissolve them.

Next time we’ll look at the arguments over representation to Congress. If that one body was going to house the powerful federal government, and somehow represent all citizens fairly, it was going to have to be composed fairly, out of a huge population. This would be no easy task. In fact, before representation could even be discussed, the structure of Congress would have to be argued out.

Next time: the three branches of government–not so simple after all

Federalist Debates: do we need a United States?

Rerunning our series on the Federalist debates; this time we look at the Anti-Federalist reaction to the Federalists’ concept of national security and its necessitating a strong centralized federal government with unlimited power of taxation. Oddly, this opposition led to accusations on both sides that the other side did not really want a United States.

The Federalists had the obvious position: the Anti-Federalists’ insistence on sovereign states wielding state militia to defend themselves was, the Federalists insisted, a clear sign that the Anti-Federalists did not really want a union. They weren’t really committed to joining together with other states to form a whole greater than the sum of its parts. What the Anti-Federalists really wanted, said the Federalists, was for each state to eventually go its own way and exist as an independent republic.

The Anti-Federalists’ accusation of disunion was more subtle: in their insistence on a national security state, the Federalists themselves undermined the idea of a union by taking away citizens’ rights in the name of defense. The Federalists would tax indiscriminately, and likely impose other burdens impossible to even think of at the present time, and take away all the freedoms and all the political participation of citizens that define a republic. The Federalists would create an oligarchy in all but name.

In their argument, the Anti-Federalists were touching on an issue that actually worried the Federalists, too: republics in history had always been very small. They had to be small, reasoning went, because everyone had to be able to participate, and if you had a huge population that would be impossible (what building could hold them all in a Congress?) and if you had a large geographic footprint that would also be impossible (you would be forced to impose a random central point where the government would exist that would necessarily be far away from most of the people). The United States already had the huge footprint—just the 13 states together were much larger than any previous republic, or any previous kingdom, for that matter—and the population was bound to grow to match it. Even the individual states, as Federalist Alexander Hamilton pointed out, were already each much larger than any previous republic. Only Rhode Island was close to the small size necessary for republican government. Every other state in the Union would have to be broken up into smaller states to be true republics.

This endless splintering would spell the end of trying to create a Union. The component pieces would be so small they would feel no need to give up their government to someone else, and would only create treaties with neighboring states, for trade or for mutual protection. And if there were 39 states in the geographic area that had been occupied by just 13 states, what would happen as the U.S. expanded across the continent? You would end up with hundreds, even thousands of states, and no federal government could hold all their delegates.

While this argument made the Anti-Federalists doubt whether Union could or should be attempted, it galvanized the Federalists to argue for something that has become familiar to us today, but was new then: American exceptionalism. The United States was not like a republic of the distant past, they said. The U.S. is not ancient Greece. The U.S. is a modern republic, and it can make its own rules—it can update the definition of republic, or even redefine it. Look at those past republics, Hamilton and Madison said: they all failed. They didn’t even last very long. So why are we supposed to follow their rules? America is all about new ideas, new ways of doing things. Look at our Declaration of Independence, they said; it is the first of its kind. We are creating a new government from scratch to meet new conditions and new possibilities, in a new world of modern Enlightenment ideas. Why should we be bound by Iron Age thinking?

The Federalists acknowledged that there would be trial and error in this approach, but they made the case that the rewards were worth the risk. Let’s bind a huge landmass into a republic, they said, and find a way to represent all the people and give them an active political role nationally and locally. Let’s expand to fill this North American continent and still remain a republic. Let’s become a republic of millions. Let’s redefine what it means to be a republic, and make a new government for a new time and place.

This was an exciting argument for many Americans, but it smacked of recklessness to others. It also failed to satisfy the questions about national security—what was so new and exceptional about a government with unlimited power to tax its subjects? Isn’t that the definition of a monarchy, or a dictatorship? And what are our guarantees that a central government with that kind of power won’t unilaterally change the Constitution that gives the citizens their rights? In the end, are we re-defining republicanism, or abandoning it?

Next time, we’ll see how prescient the Anti-Federalists were about that.

What is virtuous Republicanism? in the Federalist debates

Rerunning our series on the Federalist debates; here we look at the pros and cons of a strong federal government as argued at the time.

The Anti-Federalists wanted to keep government local. They did not want to change the sections of the Articles of Confederation that gave power to state governments and relegated the federal government to handling defense and foreign relations. That is, they wanted a confederation, not a union, of sovereign states that decided on their own whether they would heed calls from the federal government for taxation, or a military call-up, or a foreign treaty, etc. For instance, as we’ll see later in this series, when Alexander Hamilton proposed that the federal government must have the right to tax the states, unilaterally, in time of war, the Anti-Federalist response was to say, why not have the federal government go to the states when it felt it needed to raise money for war and the states would vote on whether to pay it. To us today that seems unworkable at best, crazy at worst, but it is clearly grounded in English law: the monarch had to go to Parliament to ask it to levy a tax to fight a war. This was a check on the monarch’s power meant to keep a monarch from bankrupting the kingdom in endless or losing wars. Parliament decided whether it would grant the money or not, considering whether the tax was in the best interest of the people. On the other hand, it was the breakdown of this system that had led to the English Civil War in 1642.

It’s obvious that the Anti-Federalists were worried that a strong federal government would begin to tyrannize over the states, as the British government in London had tyrannized its American colonies. But that British tyranny was just a symptom of a larger problem to the Anti-Federalists: the loss of virtuous republicanism.

Enlightenment political theorists described a successful republic as fueled by the private virtue of its citizens. Serving the state selflessly, devoting one’s energies to ensuring that the state fulfilled the common good, was an end in itself in the ideal/successful republic. All republics in history had failed, said the theorists, because civic virtue broke down—corrupted by power, or weakened by lazy inactivity. Of all the types of government, republicanism alone depended on the dedication of its citizens to the greater good and virtue as an end in itself.

This kind of republican virtue could only exist locally, according to the Anti-Federalists. When do people care about government? When they own it. When local people in local bodies make local rules, when you know your representatives and live next door to them and do business with them, then government is honest and effective, because it is truly representative, and any participant who goes against the common good is quickly voted out of office. State governments run by locally elected reps who live among their constituents can’t go wrong, especially in America, where the common people had proved their great republican virtue during the Revolutionary War by keeping their elected governments running and their local militias fighting.

The chances of local state governments remaining uncorrupted were made even greater by the fact that state reps would be elected by, and would mostly be themselves, farmers. Thomas Jefferson is the most famous of the advocates of the virtue of the yeoman farmer. A romanticized view of men who were “close to the land, close to God” was very popular during the Federal period, and continues on to a certain extent to the present day. To quote just one of Jefferson’s typical effusions:

“Those who labour in the earth are the chosen people of God, if ever he had a chosen people, whose breasts he has made his peculiar deposit for substantial and genuine virtue. It is the focus in which he keeps alive that sacred fire, which otherwise might escape from the face of the earth.”

(How a man who saw most farming done by enslaved men and women whom he described as incapable of virtue could wax so poetically so often is a riddle.) At any rate, farmers were seen as the polar opposites of bankers and businessmen: farmers did not make their money off of other people, did not get rich collecting interest on debt, etc. Farmers made an honest living working the land. Therefore, farmers should be the heart and soul of local government. Of course, in the late 1700s, the American economy was predominately agricultural, and most people were farmers, so to have a government run by farmers was not only possible, but natural, and truly representative.

To remove government from the states to a federal government, no matter how centrally located, was to strike a blow against republican virtue. Reps sent to that distant national capital would be necessarily distanced from their constituents, and lose touch with them. Local interests in one state would have to fight with the local interests of another state in the capital. State needs could be overruled by cooked-up “national needs”. Traveling to and from the capital, in an era when the nation had few good roads, meant reps would be on the road or in the capital most of the time, not living amongst their constituents. Farmers would not be able to be away from their farms for months at a time to do this, so citizens might stop electing farmers, people like them, and start electing urban businessmen who could wheel and deal more effectively, but, as a result of that, politics would become sleazy. And, crucially, local needs and local focus would take a back seat to national needs and national focus, which impinged on the sovereignty of the states—when you focus on national laws and taxes, you prioritize the national over the state/local, and the states become cogs in a machine rather than separate political entities. As the nation grew, any capital, no matter how centrally placed in 1787, would become distant and out of touch with its far-flung state citizens, and then tyranny inevitably beckoned.

Again, we recognize here an argument that has never died out of American politics. “Washington insiders” are “out of touch” with “the American people”, “Wall Street” tyrannizes over “Main Street”, and the world “outside the Beltway” has nothing in common with the world inside it. “Big government” is ruining the nation, and government itself “is the problem”. We still even like to idealize farmers, at least in produce and truck commercials. And the push to weaken the federal government and return more power and sovereignty to the states has been going strong since the 1980s.

But the belief that state governments, because they are smaller than the federal government, cannot become corrupt was strange in 1787 and it remains strange today. Power corrupts, and any entity given power runs the risk of corruption. We see corruption at all levels of our government, from city halls to state legislatures. If the federal government were wiped away tomorrow, and the states ran everything, local corruption levels would rise commensurately. Mayoral elections in cities large and small are generally characterized by claims that the candidates do not reflect or represent the people; the same thing happens in elections for state government and governorships. Our population is too diverse for any one person, to fully represent all her/his constituents. And gerrymandering and redistricting efforts make sure that no group of legislators can accurately represent the people of their state.

Yet that is exactly why we can’t completely discount the Anti-Federalists’ desire to pin government to citizen virtue. If everyone felt they really had ownership in their local government, they would work harder to safeguard that government. They would vote, and run for office, and insist on reps who really represented them. A representative democracy like ours is a rarity in the world; only a relative handful of nations really have truly representative democracies. And it does rely on its citizens’ virtue: they have to really believe in life, liberty, and justice for all, and be ready to put their fortunes and even their lives on the line for it. Our current federal government, as well as our state governments, work well only when stocked by people who have that kind of virtue.The Anti-Federalists were right to insist on this.

So how did the Federalists answer these domestic concerns? Find out next time.

The Federalist papers, the federalist debates

Hello and welcome to a replay of our series on the Federalist debates. We have to admit that this was a topic we avoided for a long time here on the HP; somehow these impassioned, immediate debates over the very nature of our founding principles, carried out with and for the general public, have failed to capture the imagination. Part of this, perhaps, is because the Federalist debates are one of the worst-taught areas of U.S. history in American schools. You’re told there was a debate over whether to have a strong federal government, the Anti-Federalists are represented as idiots fighting an obviously good idea, and you’re sat down to read a laboriously expressed Federalist Paper or two, and that’s that. The debates seem pointless, and the Papers seem unreadable.

The debates weren’t pointless, however, and the Anti-Federalists weren’t idiots. And “Federalist” search activity here at the HP has moved us to repost. Enjoy!

The Papers can be dense: classical references; long, semi-historical digressions; sentences that are a full paragraph long, using more semi-colons than even the HP would dare. But generally when they have a point to make they hammer it home with minimal rhetoric and maximum good sense. So we’re going to quote from some of the Papers in this series, to make our own points. (We are also indebted to the powerhouse lectures on the Federalist debates of Dr. Thomas Pangle, UT Austin, for the flow of our series.)

We do this because Americans in the 21st century are still having the Federalist debates. The questions the anti-Federalists raised are still valid today, and not just for that minority of Americans who want to dismantle the federal government completely. The questions the anti-Federalists raised, and the answers the Federalists gave, are eerily modern, and the most eerie part is that Federalists like Hamilton explicitly stated in 1787 that they were thinking forward hundreds of years, trying in vain to fully anticipate the problems the nation would face centuries after them, and trying to build in protections for the government and liberties for the people to preserve freedom in the face of threats they could not even imagine. As Hamilton put it, in Papers 23 and 34 (the capital letters are his, not ours):

“IT IS IMPOSSIBLE TO FORESEE OR DEFINE THE EXTENT AND VARIETY OF NATIONAL EXIGENCIES, OR THE CORRESPONDENT EXTENT AND VARIETY OF THE MEANS WHICH MAY BE NECESSARY TO SATISFY THEM. The circumstances that endanger the safety of nations are infinite, and for this reason no constitutional shackles can wisely be imposed on the power to which the care of it is committed. This power ought to be coextensive with all the possible combinations of such circumstances… We must bear in mind that we are not to confine our view to the present period, but to look forward to remote futurity. Constitutions of civil government are not to be framed upon a calculation of existing exigencies, but upon a combination of these with the probable exigencies of ages… There ought to be a CAPACITY to provide for future contingencies as they may happen; and as these are illimitable in their nature, it is impossible safely to limit that capacity.”

These remarkable statements not only anticipate cyber-age threats no one could have dreamed of even 40 years ago, let alone 227 years ago; they also describe an argument about government power that is whipsawing American society today as we face the reality of NSA surveillance.

But that’s leaping ahead. Let’s start this series with a quick update to refresh the collective memory:

The Articles of Confederation adopted during the Revolutionary War by the Continental Congress established, as the name says, a confederacy: a league of friendship between sovereign political entities—in this case, the 13 states. The federal government, which consisted of a single-house Congress, did not impinge on the sovereignty of these states very much: it was authorized to handle foreign policy, national defense, disputes between states, interstate commerce, and legislating for new territories under U.S. control but not yet organized into states.

There was general concern that the states were headed for disputes that the weak federal government would not be able to resolve. Populist state governments were making zealous proclamations/warnings about maintaining their sovereignty, and it seemed increasingly likely that if the U.S. did face an external threat, like war with Britain or Spain, the federal government would be powerless to stop each individual state from going its own way—making separate peace treaties, or joining blocs of states that followed different policies, or refusing to pay federal taxes needed to levy an army in favor of prepping its own militia to defend its own borders and nothing else.

James Madison of Virginia and Alexander Hamilton of New York were the main leaders of a convention called to revise and edit the Articles of Confederation in the summer of 1787 in Philadelphia. The delegates to the convention met in secret, which worried many Americans, who were afraid they would make and pass substantial changes to the government without public input, and present the new Articles as a done deal after the fact. Those fears were realized in part when the delegates decided not to revise the Articles but to scrap them completely and write a new document. But fears that the new document would be railroaded through were not realized.

This is one of the amazing facts about the Constitution: the finished document was not referred back to the existing Congress for approval (many Americans think that members of Congress met at the convention, but while some delegates were also members of Congress, most were not; they were specially appointed by their states to go to the convention). The new Constitution was also not sent to the state governments for ratification. Instead, the proposed Constitution was sent directly to special conventions set up in each state and made up of delegates elected directly by the people. The Founders’ faith in the people, and their dedication to creating a republic where the people ruled, was unprecedented in western history. As the first Federalist Paper put it:

“It has been frequently remarked, that it seems to have been reserved to the people of this country, by their conduct and example, to decide the important question, whether societies of men are really capable or not, of establishing good government from reflection and choice, or whether they are forever destined to depend, for their political constitutions, on accident and force.”

In other words, the American people will decide what system of government they will have because they have earned that right, “by their conduct and example”. A people so devoted to liberty, as proved by their conduct in fighting the Revolutionary War, must be “capable of establishing good government from reflection and choice.”

And so the debates in the special conventions began, and the Anti-Federalists and Federalists began their writing campaign to instruct and sway the people. The Federalist Papers, as well as the many documents written by the Anti-Federalists (they have no one unifying name) were published in newspapers and broadsides from October 1787 through August 1788, as the state ratifying conventions met, to educate the people about the issues at stake so they could influence their state conventions. It was a remarkable campaign on both sides to impact a vote not with lies, scandal, rumors, or personal attacks, but with logic, reason, examples, and thoughtful questions. Passions ran high, to be sure, but the passion was for the truth, and the best form of government, not for personal or party gain.

We won’t address every issue canvassed during the campaign to ratify or reject the Constitution, but we will look at those which are most pertinent to us today, in our “remote futurity”, so that we can call upon the Founders once again to help us decide our important issues of good government.

Next time: the pros and cons of big government

Federalists and Anti-Federalists: what did the debates do?

In our conclusion to our series on the Federalist debates that gave us our constitution, we try to wrap up their overall impact on the U.S., in their own time, and over the centuries since 1787.

Representation to Congress: Anti-Federalist and Federalist options

Here in the second to last post in our colossal series on the Federalist debates that gave us our Constitution we look at the final large-scale thorny issue dividing Federalists and Anti-Federalists: representation to Congress.

Next time, we will wrap up—at last!—our series with some reflections on what we can take from the Federalist debates.

The Federalist Debate over the three branches of government

Hello and welcome to part 7 of what is becoming a monumental series on the Federalist debates that gave us our present Constitution. Rest assured that we’re closing in on the resolution of those debates, but for now, here we take a brief detour on the way to talking about how representation in the House and Senate was hammered out to discuss the three branches of government. (Again we are indebted to the powerhouse lectures on the Federalist debates of Dr. Thomas Pangle, UT Austin, for the flow of our series.)

The “three branches of government” is a phrase we all learn and know as Americans, and may be the one thing we all feel sure we understand about how our federal government works. There are three branches so that each can check and balance each other’s power. Ah, “checks and balances”—the companion to the three branches. No one part of the government can become too strong with this system.

But this is not really very intuitive. Why would one part of the government become too strong in the first place, and if all three branches are able to interfere with each other, why don’t you just get chaos? How can one branch operate if the other branches can check its power?

The Anti-Federalists were aware of this conundrum: checks on power is actually a kind of sharing of power. Why do the powers of the three branches overlap, Anti-Federalists asked? Why can the Executive (President) legislate with veto power, and act judicially with the power to pardon criminals? Why is the Legislature (Congress) given judicial power to impeach the Executive? Why can the Legislature take on Executive power by giving the president “advice and consent” on treaties and other foreign policy, and by approving presidential cabinet appointees? And why does the Judiciary (particularly the Supreme Court) have the legislative power to write new laws?

Why not just have each branch do its own work, the Anti-Federalists proposed, and if we parcel out the powers between the branches correctly, there will be no problem with one branch becoming too powerful.

The Federalist reply was, again, as it so often was, based on an understanding of human nature. Human beings, they said, are combative and competitive. You can’t group humans into three branches of government and expect them to remain separate but equal. Inevitably, one branch will want to be the most powerful. Balance is very hard to achieve; that’s why you need checks. And the way to create real checks is to allow the branches to share some powers, to overlap in some ways, so that they must cooperate with each other sometimes. Knowing they have to cooperate with each other will be a counterbalance—or check—on the competition between the branches. To keep one branch from becoming all-powerful, the other branches have to have an inside track on it, some way to check its power. If the President didn’t have veto power, the Executive would inevitably become subordinate to the Legislature, as Congress would be able to ignore what the President wanted and duke it out with the Judiciary alone, because only the Judiciary would have the power to overturn laws. If Congress didn’t have the power to impeach the President, and the Judiciary had no way to check presidential power, then the Executive would begin to be dominant, and the president would become a tyrant/king.

As Madison puts it in Federalist Paper 51:

But the great security against a gradual concentration of [power] in [one branch of government], consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. The provision for defense must in this, as in all other cases, be made commensurate to the danger of attack. Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place. It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on 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 administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.

This policy of supplying, by opposite and rival interests, the defect of better motives, might be traced through the whole system of human affairs, private as well as public. We see it particularly displayed in all the subordinate distributions of power, where the constant aim is to divide and arrange the several offices in such a manner as that each may be a check on the other — that the private interest of every individual may be a sentinel over the public rights. These inventions of prudence cannot be less requisite in the distribution of the supreme powers of the State.

In short, one of the ways in which the new American republic was new and innovative was that it did not rely on having a perfect citizenry or government filled with republican virtue. The new American republic would work with human nature to better it. Instead of constantly trying to avoid conflict, our government would welcome it. If the very structure of our government includes, even depends on, conflict and competition between its branches, then the whole question of checking federal power is turned upside down: instead of having people outside the federal government (the states) constantly monitoring the federal government to make sure it’s not too powerful, and trying to reform the federal government from the outside to end its tyranny, the federal government will check itself. The federal government checks its own power by competing with itself, by having the three branches constantly making sure no one branch is too powerful. And as long as the three branches are functioning the way the Constitution says they should, they will not become corrupted and they will carry out the laws of the Constitution and we won’t have a problem with tyranny.

The key is that the Constitution as the Federalists proposed and wrote it laid out powers for the three branches that were fair and democratic. The only way the federal government could become tyrannical would be if its branches did not obey the Constitution. That would not happen, the Federalists said, with each branch being forced to obey the Constitution by the overlap of powers with other branches that would come down hard on each other if one started to get too powerful. No one branch’s members would sit back while another branch got more powerful. Thus constant competition means constant checking of power which means constant obedience to a just Constitution.

Dividing the Legislature into two bodies, the House of Representatives and the Senate, was an example of this. The biggest worry for both Federalists and Anti-Federalists (though Federalists worried about it more) was that Congress was most likely to become tyrannical because a) it was the only branch that could make laws, and b) it was the branch that the people had direct control over (remember that the Electoral College takes precedence over the popular vote in a presidential election, so electors chosen by the few, and not the common people, ultimately decide, to this day, who becomes president). The House was particularly troubling: the Constitution proposed that each state have two Senators, but the number of Representatives would be based on population, and was bound to soar past the number of Senators. Even in 1787 it was very clear that one day the U.S. House would have hundreds and hundreds of members. The House, therefore, was most vulnerable to becoming tyrannical. It would be the largest branch of government, and it would be directly elected by the people, who would never agree to its power being checked because that would be their power being checked.

So the Congress was divided in a way that satisfied the people’s demand for direct representatives (House) but also allowed a smaller body (Senate) the power to overturn House rulings. Bills generally originate in the House and then go to the Senate. The entire House might approve a bill, all 435 Representatives might vote yes, but if just two-thirds of the 50 Senators vote against it, the bill is dead. The people’s voice is heard in the House, but the voice of that educated elite, the most virtuous republican citizens who devote themselves to public service, ultimately calls the shots.

The only way for the House to get its way is to—you guessed it—cooperate with the Senate, to check its own power and work out a compromise the Senate will accept. What keeps the Senate, then, from becoming the tyrannical branch? Bills don’t aways originate in the House, so when the Senate passes a motion that goes to the House and is rejected, then the Senate has to compromise. But since most bills do originate in the House, the more common way of checking Senate power is that Senators don’t want to be seen as always contradicting the people’s voice (as represented by the House), and so will find ways to compromise with the House rather than constantly shoot it down.

With the Legislature divided and set in competition with itself, the fear that the Congress, especially the House, would become tyrannical was allayed. With its basic structure out of the way, now we can address the question of how the House and Senate would be composed so that they would fairly represent the American people… and what the definition of “the American people” should be.

The Federalist vision of the American Republic

In part 6 of our series on the Federalist debates that gave us our Constitution, we rebound off the Federalists’ weak attempts to claim that the federal government they envisioned could indeed have its power checked by the states (which was not really true) to their more powerhouse vision of what a modern, American republic would really mean.

…ends up perverting democracy by forcing injustice on the minority of the public. Slavery is a good example. Most Americans in the slave era were white and free. White and free people were the majority, and they used their majority power to keep slavery from being abolished by the minority of Americans who wanted to abolish it. The rights of black Americans and white abolitionists were trampled by the tyranny of the majority.

Before Brown v. Board of Education in 1954, the majority of Americans were fine with segregated schools, for various reasons. They used their majority power to oppress the minority of Americans who were black, or who were white and wanted desegregation. In each of these examples, the majority is imposing and enforcing injustice, which is incompatible with democracy. They are tyrannizing rather than governing.

Faction, the Federalists say, will always trump the goal of a united populace. So what do you do to get real democracy? You avoid direct rule and embrace faction.