THE GREAT DEBATE
WHEN one considers the bulk of commentary that has grown up about the Constitution, it is surprising how little abstract political speculation accompanied its making and adoption.. It was the first response to the current liberal demand for written constitutions as a safeguard against tyranny, but it was aimed at the encroachments of agrarian majorities rather than at Tory minorities. It was the work of able lawyers and men of affairs confronting a definite situation, rather than of political philosophers; and it was accompanied by none of that searching examination of fundamental rights and principles which made the earlier Puritan and later French debate over constitutional principles so rich in creative speculation. Not a single political thinker comparable to the great English and French philosophers emerged from the struggle. The debate drew freely upon the materials supplied by those thinkers, but it added little that was new.
The Constitution was a venture in republicanism, on a scale and under conditions without historical precedent. It was inevitable, therefore, that the debate should concern itself greatly with the nature of republicanism and its adaptability to American conditions. As the argument developed, two major questions assumed critical importance: the question of the powers of the Federal state, and the question of the sovereign rights of the majority; and in dealing with both the debaters were on ground inadequately surveyed. Of definite republican theory little was available except the writings of a small group of seventeenth-century republicans. Of democratic theory, on the other hand, even less was available. American democratic aspiration had far outrun old-world liberalism, and had produced no independent speculation of its own. French democratic theory still awaited the rise of Jacobinism to clarify its principles. The party of Commonwealth Levelers, to be sure, with their doctrines of a "paramount law," manhood suffrage, and annual parliaments, offered much that might have proved suggestive; but the literature of the Levelers was buried too deep under Tory obloquy to be resurrected, and nowhere else was to be found any considerable body of democratic theory. It was inevitable, therefore, that the debaters should go back to the English liberals of the preceding century.
Consider for a moment the authorities bandied to and fro in the great debate. With such exceptions as Machiavelli, Vattel, Pufendorf, Montesquieu, they were the well-known English theorists, Hobbes, Harrington, Milton, Sidney, Halifax, Hume, and Blackstone. Unhappily for the democrats every one of these great names counted against their aspirations. Hobbes was a state absolutist whose Leviathan provided sharp weapons for those who wished to tone the government high; Hume was a Tory who accepted the traditional interpretation of human nature in the light of which democracy was the open door to anarchy; Blackstone was a Tory lawyer, who interpreted the British constitution by a narrow legalism that was obsolete before the Commentaries came from the press. Harrington, Milton, and perhaps Sidney, were republicans of strong aristocratic bias, and Halifax and Locke-the latter by much the most influential of allwere constitutional monarchists.1 Every one of these great authorities either distrusted or violently condemned democracy, yet they provided the major body of theory made use of by the Federalists.
On the other hand, the slowly accumulating democratic theory was unknown to the members of the convention. In 1761 Robert Wallace had advanced an Owenite theory of property, attacking the principle of economic individualism as responsible for the current evils of government by landed property; but his book, Various Prospects, made no ripple on the placid waters of English liberalism.2 In 1768 Joseph Priestley, a thinker who later was to exercise great influence in America, who lived here for a number of years and was intimate with Jefferson, published his essay, First Principles of Government, a work embodying the first English interpretation of the perfectibility of man, the rule of reason, the theory of the diminished state, and the Benthamite principle of utilitarianism or expediency in statecraft, which struck at the principle of coercive sovereignty. But the ideas of Priestley were probably little known in America in 1787, and his influence undermined further by a theological attack which sought to fasten upon him the stigma of atheism. In short, in this war of ideas the democrats were provided with little ammunition and fought at a great disadvantage. If the debate had taken place five years later, after the French Revolution had provided new democratic theory, the disparity of intellectual equipment would have been far less marked.
One other fact must be kept in mind, namely, that the great debate was in reality two, debates, one carried on in the quiet of the convention hall, the other in the open. Each interprets the other, and taken together they reveal the conflict of forces and ideas that determined the form of the Constitution. In the privacy of the convention the speakers were free to express their views frankly, and in consequence a loose rein was given to the play of ideas; fundamental principles were examined critically and economic motives and class interests openly acknowledged. But in arguing the case before the generality of voters without doors a more cautious approach was necessary; arguments must be tempered to well-known prejudices, and circumspection must take the place of frankness. In the earlier debate, among innumerable lesser problems, two main questions dominated the argument: the question of the form of the centralized state--whether it should be aristocratic or republican; and if republican-as was inevitable--the question of what should be done about the majority will-how representation should be so refined as to guarantee stability to the government and security to the minority. In the second debate the appeal was to expediency rather than to principles, and turned on three chief points: the need of adoption in view of the desperate condition of the country; the a adaptation of a proposed republican form to the vast extent of territory and diversity of interests; and the necessity, of providing checks upon political parties if anarchy were to be avoided.
In the convention the need of a strong state, with powers beyond local legislatures, was not so much debated as assumed. By common consent it was agreed that the present lack of a centralized, coercive sovereignty, was the source of all current evils. How many members preferred monarchy to republicanism, in principle, it is impossible to determine; but they all realized the inexpediency of attempting to set it up; even Hamilton yielded to the logic of Colonel Mason's argument: "Notwithstanding the oppression and injustice experienced among us from democracy, the genius of the people is in favor of it, and the genius of the people must be consulted." Accepting then the principle of republicanism as a compromise between the extremes of monarchy and democracy, the practical problem remained of erecting a system that should secure the minority against the aggressions of political faction. If the danger lay in an uncontrolled majority will, the way of safety lay in imposing restraints upon that will. In elaborating a system of checks and balances the members of the convention were influenced by the practical considerations of economic determinists more than by the theories of Montesquieu. They were realists who followed the teachings of the greatest political thinkers from Aristotle to Locke in asserting that the problem of government lay in arranging a stable balance between the economic interests of the major classes. The revolutionary conception of equalitarianism, that asserted the rights of man apart from property and superior to property, did not enter into their thinking as a workable hypothesis. The very conditions of the unsettled times were an argument against it. Property, they argued, is the stabilizing force in society; it is conservative and cautious; having everything to lose by social upheavals, it is a restraining force upon factional unrest. The propertyless, on the other hand, having nothing to lose, easily become the victims of demagogues and embroil society with foolish experiments. The republican experiment might work in America because property was widely distributed, but in the course of time a propertyless majority would arise, whose fickle and subversive will must be held in check. The problem, therefore, was to provide in time against such an eventuality. Certain members of the convention did not go so far in their fear of the propertyless, but relied upon the ability of property to protect itself by extra-legal means. "Give the votes to people who have no property," argued Gouverneur Morris, "and they will sell them to the rich, who will be able to buy them." 3 But the more general view was expressed by Madison:
'The landed interest, at present, is prevalent, but in process of time . . . " when the number of landholders shall be comparatively small . . . will not the landed interests be overbalanced in future elections? and, unless " wisely provided against, what will become of our government? In England, at this day, if elections ctions were open to all classes of people, the property of landed proprietors would be insecure. An agrarian law would take place. If these observations be just, our government ought to secure the permanent interests of the country against innovation. Landholders ought to have a share in the government, to support these invaluable interests, and to balance and check the other. They ought to be so constituted as to protect the minority of the o opulent against the majority. They ought to be so constituted as to protect the minority of the opulent against the majority.4This conception of the natural sovereignty of the landed interest with its stake-in-society theory of political rights, America inherited from England; and although the new Constitution professed to rest on the sovereignty of the people, the men who framed it refused to interpret the term, sovereignty of the people, in an equalitarian sense. They did not profess to be, in the words of John Quincy Adams, "slavish adorers of our sovereign lords the people." Every principle of their social and political philosophy taught them the desirability of limiting the majority will in order that the wiser minority will might rule. Paul Leicester Ford has asserted that "the Federal compact was the first deliberate attempt and assent of a majority to tie its own hands; to give to the minority guarantees of fair and equal treatment, without which democratic government is well-nigh impossible, save when developed along the lines of socialism." 5 Such partisan misinterpretation of plain historical fact is characteristic of our Federalist historians. If the hands of the disfranchised majority were tied by the voting minority, it is a bit absurd to attribute the resulting guarantees to an altruistic sense of justice, deliberately expressed by the former. Very possibly in a world so aristocratic as was America in 1787, no other course would have succeeded; but there is not a single historical fact to justify so naive an interpretation, and the bitter partisan warfare which followed is sufficient to disprove it.
We are too prone to forget the wide popular disfavor with which them Constitution was received. No sooner did the second debate open than it became evident that the majority opinion held quite a different conception of the sovereignty of the people than was expressed by the convention. It had no desire to tie its own hands; it did not take kindly to the proposal to transfer power from the several states to the Federal government. The villagers and small men were afraid of the new instrument; thev asserted that it had been prepared by aristocrats and moneyed men, and they repudiated the stake-in-society principle.
"The Constitution," said General Thompson in the Massachusetts Convention, "and the reasons which induced gentlemen to frame it, ought to have been sent to the several towns to be considered by them. My town considered it seven hours, and after this there was not one in favor of it." In Rhode Island, where it was thus submitted, it was rejected "by a very great majority." The state of mind of the agrarian majority was thus expressed by Amos Singletary, of Sutton, Massachusetts:
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 the 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.6Among the host of pamphlets and newspaper articles that quickly appeared, The Federalist written by Hamilton and Madison with some help from Jay, and Letters from the Federal Farmer to the Republican, by Richard Henry Lee, fairly adequately present the opposing arguments. By common consent The Federalist was at once accepted by its party as an unanswerable defense of the Constitution; and its fame has grown greater with the passing years. No other work on political theory in the American library has been rated so high, or been more frequently cited. From the mass of contemporary pamphlets it emerges like a colossus. It "has been seriously and reverently called the Bible of Republicanism," says a legal historian, which "for comprehensiveness of design, strength, clearness, and simplicity . . . has no parallel among the writings of men, not even excepting or overlooking those of Montesquieu and Aristotle,"7; and a literary historian pronounces authoritatively, "it is so wisely thoughtful that one may almost declare it the permanent basis of sound thinking concerning American constitutional law."8
The Federalist was the work of able lawyers, with whom was joined a notable political thinker. In very large part it is of interest only to students of early constitutional theory and practice. It was designed as a frankly partisan argument to appeal to an influential group in New York, many members of which had followed George Clinton and Robert Yates in opposition to the Constitution. On the political side it develops four main theses: the necessity for taking effective action in view of the self-confessed failure of the Articles of Confederation; the urgent need of a sovereign, unitary state, to avoid the horrors which must follow from "the political monster of an imperium in imperio"; the necessity of providing that justice shall prevail over the majority will; and the adaptability of the republican form to a great extent of territory and divergent, interests. Of these the second and third lay bare the heart of Federalist political theory; and in the treatment of them there is no shrinking from the conclusions of the earlier debate, although the tone is conciliatory.
The argument for a unitary, sovereign state, developed by Hamilton, and the argument for justice, developed by Madison, rest upon the same basis and are regarded as the twin problems of government. The true sanction of government is found, not in good will, as Bentham and later democratic thinkers have urged, but in coercion;9 and coercion is accepted as necessary because of universal selfishness. "Why has government been instituted at all? Because the passions of men will not conform to the dictates of reason and justice, without restraint."10 Granted coercive sovereignty, government must guarantee justice to all; and justice demands that the majority shall suffer needful restraint equally with the minority. The great and insidious danger to good government has always been faction, the argument runs, and a chief merit of the Constitution lay in its provisions to lessen the disasters of factional ambition. "Complaints are everywhere heard from our most considerate and virtuous citizens, equally the friends of public and private faith, and of public and personal liberty, that our governments are too unstable, that the public good is disregarded in the conflict of rival parties, and that measures are too often decided, not according to the rules of justice and the rights of the minor party, but by the superior force of an interested and overbearing majority."11
No theory is more representative of the time than the theory of faction. It was a first line of defense thrown up against the advancing democratic movement. The term had long served conveniently to stigmatize any popular unrest, the "factious multitude" having been held synonymous in earlier usage with mob; but in the eighteenth century the word was applied generally to political parties. In a world moving inevitably towards manhood suffrage, a sharp alignment of parties with definite platforms was greatly feared by the minority, for the organization of the rank and file of voters must end in majority control. An honest appeal to the people was the last thing desired by the Federalists, and the democratic machinery of recalls and referendums and rotation in office, which had developed, during the war, was stigmatized as factional devices which in the end must destroy good government. "As every appeal to the people would carry an implication of some defect in the government," argued Madison,12 "frequent appeals would in a great measure deprive the government of that veneration which time bestows on everything, and without which the wisest and freest govern ments would not possess the requisite stability." "The danger of disturbing the public tranquillity by interesting too strongly the public passions is a still more serious objection against a frequent reference of constitutional questions to the decisions of the whole society."
In the remarkable tenth number, which compresses within a few pages pretty much the whole Federalist theory of political science, Madison has explained the Federalist objections to political parties and party government.
By a faction, I understand a number of citizens, whether amounting to a majority or minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community . . . . If a faction consists of less than a majority, relief is supplied by the republican principle, which enables the majority to defeat its sinister . views by regular vote . . . . When a majority is included in a faction, the form of popular government, on the other hand, enables it to sacrifice to its ruling passion or interest, both the public good and the rights of her citizens. To secure the public good and private rights, against the danger of such a faction, is then the great object to which our inquiries are directed . . . . By what means is this great object attainable? Evidently by one of two only. Either the existence of the same passion or interest in a majority at the same time must be prevented; or the majority, having such coexistent passion or interest, must be rendered by their number and local situations, unable to concert and carry into effect schemes of oppression. If the impulse and the opportunity be suffered to coincide, we well know, that neither moral nor religious motives . ,tn be relied on as an adequate control.In full agreement with the greater political thinkers of the past, Madison then traces political parties to economic sources. Since in every society the diversity of economic groups creates diversity of political programs, party divisions and party alignments are inevitable in the ordinary course of events. The unequal distribution of property is the realistic basis of all politics, and the "sentiments and views which arise from the possession of different degrees and kinds of property form the stuff of so-called `political psychology.'"13
The diversity in the faculties of men, from which the rights of property originate, is . . . an insuperable obstacle to a uniformity of interests. The protection of these faculties is the first object of government. From the protection of different and unequal faculties of acquiring property, the possession of different degrees and kinds of property immediately results; and from the influence of these on the sentiments and views of the respective proprietors, ensues a division of the society into different interests and parties.As a means of securing a necessary balance between rival interests, Madison approved a republican rather than a democratic form of government:
The two great points of difference, between a democracy and a republic, are, first, the delegation of the government, in the latter, to a small number of citizens elected by the rest; secondly, the greater number of citizens, and greater sphere of country, over which the latter may be extended. The effect of the first difference is, on the one hand, to refine or enlarge the public views, by passing them through the medium of a chosen body of citizens, whose wisdom may best discern the true interests of their country and whose patriotism and love of justice, will be least likely to sacrifice it to temporary or partial considerations. Under such a regulation, it may well happen, that the public voice, pronounced by the representatives of the people, will be more consonant to the public good, than if pronounced by the people themselves, convened for the purpose . . . . The other point of difference is, the greater number of citizens, and extent of territory, which may be brought within the compass of republican, than of democratic government; and it is this circumstance principally which renders factious combinations less to be dreaded in the former, than in the latter . . . . Extend the sphere, and you take in a greater variety of parties and interests; you make it less probable that a majority of the whole will have a common motive to invade the rights of other citizens; or if such a common motive exists, it will be more difficult for all who feel it to discover their strength, and act in unison with each other.14In such argument Madison was adapting to his purpose the view of Milton and other seventeenth-century republicans, to whom in the dangerous days when the Puritan Commonwealth was breaking up, the "noise and shouting of the rude multitude," the drunken ribaldry of the London rabble, was prophetic of "new injunctions to manacle the native libertie of mankinde." But it has long since become a commonplace of political observation that the minority and not the majority is the more dangerous to the common well-being, for it is, the minority that most frequently uses government to its own ends.
The contrast in temper and argument between The Federalist and Richard Henry Lee's Letters from the Federal Farmer,15 is striking. The calmness and fair-mindedness of the work persuade one that it ill deserves the name partisan; it comes near to being a frank and disinterested examination of the proposed instrument of government. Its sharpest strictures are tempered by ready acknowledgment of excellent features. The burden of Lee's accusa tion is that the instrument is undemocratic; that it must result in placing the majority under control of the minority; and that it in no wise reflects the sober judgment of the body of the people. He is more restrained than Elbridge Gerry, who asserted that it was the outcome of a conspiracy hatched in secret, a work of "such motley mixture, that its enemies cannot trace a feature of Democratic or Republican extract." But the Farmer's restraint adds weight to the serious charges which he brings against the instrument, and the unseemly haste of its advocates in urging its speedy adoption. It was not to destroy the work of the Convention that he pleaded for delay; but that it should receive full and fair consideration, and be disposed of as its merits or defects should warrant.
His first concern is that the Constitution should not, be adopted with the_innconsiderate haste for which The Federalist was pressing. "The first principal question that occurs, is, Whether, considering our situation, we ought to precipitate the adoption of the proposed Constitution?" Hamilton had made much of the desperate state of affairs that admitted of no delay; Lee replied by, denying, with Franklin and, other competent observers, that the-present state was desperate..,. Matters were improving daily, peace was restoring the ravages of war.
I know uneasy men, who with very much to precipitate, do not admit all these facts; but they are facts well known to all men who are thoroughly informed in the affairs of this country. It must, however, be admitted, that our federal system is defective, and that some of the state governments are not well administered; but . . . we impute to the defects in our governments many evils and embarrassments which are most clearly the result of the late war . . . . When we want a man to change his condition, we describe it as wretched, miserable, and despised; and we draw a pleasing picture of that which we would have him assume . . .. It is too often the case in political concerns that men state facts not as they are, but as they wish them to be . . . . Men who feel easy in their circumstances, and such as are not sanguine in their expectations relative to the consequences of the proposed change, will remain quiet under the existing governments. Many commercial and monied men, who are uneasy, not without just cause, ought to be respected; and by no means, unreasonably disappointed in their expectations and hopes . . . . It is natural for men, who wish to hasten the adoption of a measure, to tell us, now is the crisisnow is the critical moment which must be seized or all will be lost; and to shut the door against free enquiry, whenever conscious the thing presented has defects in it, which time and investigation will probably discover . . . . If it is true, what has been so often said, that the people of this country cannot change their constitution for the worse, I presume it still behoves them to endeavor deliberately to change it for the better.Granted that experience has demonstrated the need, of revising the Articles of Confederation in certain essential points, Lee main maintains that the enemies of democracy have been making undue capital out of the shortcomings of an emergency government, in the hope of subverting the democratic state governments and substituting a more aristocratic form.
The confederation was formed when great confidence was placed in the voluntary exertions of individuals, and of the respective states; and the framers of it, to guard against usurpation, so limited, and checked the powers, that, in many respects, they are inadequate to the exigencies of the union . . . . During the war, the general confusion, and the introduction of paper money, infused in the minds of people vague ideas respecting government and credit. We expected too much from the return of peace, and of course we have been disappointed. Our governments have been new and unsettled; and several legislatures, by making tender, suspension, and paper money laws, have given just cause of uneasiness to creditors. By these and other causes, several orders of men in the community have been prepared by degrees, for a change of government; and this very abuse of power in the legislatures, which in some cases has been charged upon the democratic part of the community, has furnished aristocratical men with those very weapons, and those very means, with which, in great measure, they are rapidly effecting their favourite object.The methods by which the convention was brought together at a time when the "idea of destroying ultimately, the state government and forming one consolidated system, could not have been admitted," is traced briefly with penetrating comment, and the unfortunate decision of some excellent republicans to take no part in the work is regretted:
Here the favorable moment for changing the government was evidently discerned by a few men, who seized it with address . . . . Tho' they chose men principally connected with commerce and the judicial departments, yet they appointed many good republican characters had they all attended we should see, I am persuaded, a better system presented. The non-attendance of eight or nine men, who were appointed members of the convention, I shall ever consider as a very unfortunate event to the United States. Had they attended, I am pretty clear that the results would not have had that strong tendency to aristocracy now discernible in every part of the plan . . . the young visionary men, and the consolidating aristocracy, would have been more restrained than they have been.Lee frankly concedes that the instrument possesses many excellent features, but he considers it greatly vitiated by the "want of that one important factor in a free government, a representation of the people." "Because we have sometimes abused democracy, I am not among those who think a democratic branch a nuisance." "Every man of reflection must see, that the change now proposed, is a transfer of power from the many to the few." The present agitation may be traced to its source in "two very unprincipled parties," between whom stand the great mass of honest and substantial people:
One party is composed of little insurgents, men in debt, who want no law, and who want a share of the property of others; these are called levellers, Shaysites, &c. The other party is composed of a few, but more dangerous men, with their servile dependents; these avariciously grasp at all power and property; you may discover in all the actions of these men, an evident dislike to free and equal government, and they go systematically to work to change, essentially, the forms of government in this country; these are called aristocrats, m-ites, &c. Between these two parties is the weight of the community: the men of middling property, men not in debt on the one hand, and men, on the other, content with republican governments, and not aiming at immense fortunes, offices and power. In 1786, the little insurgents, the levellers, came forth, invaded the rights of others, and attempted to establish governments according to their wills. Their movements evidently gave encouragement to the other party, which, in 1787, has taken the political field, and with its fashionable dependents, and the tongue and the pen, is endeavouring to establish in a great haste, a politer kind of government. These two parties . . are really insignificant, compared with the solid, free, and independent part of the community.Calm voices such as Lee's were few in those strident days, and the Federalists fairly overwhelmed the silent majority with clamorous argument. Polite culture and professional learning joined forces to write down the agrarians. The Hartford Wits dedicated smart couplets to the cause; Francis Hopkinson made merry over their ways; Noah Webster confuted them with his economic interpretation of politics; lawyer-scholars like James Wilson and John Dickinson exposed their heresies; solid business men like Peletiah Webster contributed after the measure of their intelligence. In their ardor the Federalists went further. "What can be the views of those gentlemen in Boston," asked Lee pertinently, "who countenanced the printers in shutting up the press against a fair and free investigation?" From the strident debate emerged not only the Constitution, but political parties, no longer to be spoken of as factions, but eventually to be accepted as necessary agencies in republican government and to understand their rival policies we must turn to examine the political philosophies of the outstanding leaders.
1 These English liberals have been often regarded as democrats. Thus Merriam says of Locke, "He was the most famous of seventeenth century democratic thinkers." American Political Theories, p. 90.
2 See Laski, Political Thought from Locke to Bentham, p. 188.
3 Elliot's Debates, Vol. I, p. 386.
4 Ibid., Vol. I, pp. 449-450.
5 The Federalist Introduction, p. viii.
6 Quoted in Harding, The Federal Constitution in Massachusetts.
7 Carson, History of the Supreme Court, quoted by Ford, The Federalist, p. xxix.
8 Wendell, Literary History of America, p. 118.
9 Number 15.
11 Number 10.
12 Number 49.
13 Beard, The Economic Basis of Politics, pp. 29-32
14 Number 10.
15 The full title is: Observations leading to a fair examination of the system of government, proposed by the late Convention; and to several essential and necessary alterations in it. In a number of Letters from the Federal Farmer to the Republican. Reprinted in Ford's pamphlets.