Some Musings on the Federalist Papers and the American Founding
The following is from the comment thread on my post A Question Regarding the Commerce Clause.
OTB contributor Alex Knapp wrote:
Most of the delegates to the Constitutional Convention fought tooth and nail for Federal Supremacy. Hell, Alexander Hamilton’s plan was to abolish the states entirely. All over the Constitution, Federal powers are defined in vague terms while states are specifically proscribed from doing LOTS of things.
Most of the Founding Fathers wanted a strong, central, Federal government. Because the Constitution had to be approved by the states, the Federal powers were watered down, but only enough to allow for ratification.
To which OTB contributor Robert Prather responded:
Interesting read on this Alex. Some might even say “novel.” I’ve always heard that the Founders / Framers feared centralized government, hence a federalist system with checks and balances for the federal government.
What do “The Federalist Papers” have to say about this?
Myself, I’ve always been a Jefferson man; never cared much for Hamilton.
Having just read through Papers and being in the process of working on a book on the institutional design of the United States in comparative perspective, I can say the following. While Alex’s interpretation (granted, as manifested as a comment to a blog post and not a fully developed argument) is perhaps a bit more strident than is warranted, it is not really novel or especially off the mark. Now, the degree to which this actually helps us understand proper use of the commerce clause is a different matter.
At any rate, some thoughts:
1) It actually is incontrovertibly true that the purpose of the Philadelphia convention was to strengthen the federal government at the expense of the states. If the goal was true sovereignty for the states, the Articles of Confederation would have been just fine.
As Madison argued in a letter to George Washington in April of 1787, “I would propose that…the national government should be armed with positive and compleat authority in all cases which require uniformity; such as the regulation of trade, including the right of taxing both exports and imports, the fixing the terms and forms of naturalization, etc. etc.” (Meyers, 67).
2) Of course, the exact amount of power that they all thought was appropriate for the federal government to have over policy remains unclear (and was unclear to them as well). Whether one looks at the Federalist Papers, Madison’s Notes, or the Debates of the Adoption of the Federal Constitution what one sees is s discussion of basic power allocation and governmental design, not specific policies or even scopes of policies.
3) It is impossible to take the more modern issues we discuss now and know what the Founders would have thought–the very nature of government in a general sense has changed since 1789. One of the things that gets ignored in debates like this is that there is simply a difference between governing a country in 1789 v. now (or, really, after the Industrial Revolution). If one doesn’t understand that there is a profound difference between governing an industrial/post-industrial country v. an agricultural one can’t make a cogent argument on these counts (a statement not aimed, by the way, at anyone in particular, but rather a general observation about the way people often talk about this stuff).
4) We have to remember that capitulations to the states (specifically to smaller states and/or slave states) were not on the basis of some grand theory or philosophically pure position. Indeed, it worth noting that Madison’s plan (the Virginia Plan), which was the original basis for debate in the convention for roughly the first month, allocated power to the states based on population and gave a considerable amount of general power to the House of Representatives, which would have chosen the president.
Short version: we often treat what was fundamentally a political compromise as if it was far more of a well developed and applied political theory that it was. Indeed, theoretical discussion of the topic (such as is found in Federalist 39 and 51) was very much an ex post intellectual defense of federalism as we understand it by Madison, rather than a theory of governance that pre-dated the convention. In other words, as a political matter, the Federalist were written to defend the constitution as written, compromises and all.
5) Jefferson, it is worth noting, was not at the constitutional convention (serving the US overseas as a diplomat at the time). Further, while he often talked about limited power on the part of the federal government, was more than happy to do more than the constitution allowed when he was president (the most Louisiana Purchase being the most obvious example). Pointing this out is not to use it justify any particular action since that time, but rather to underscore that the notion that there was a time when there was absolutely clear and shared vision of what the constitution meant and that therefore constrained action in way that it no longer does never existed.
Elliot, Jonathan, ed. 1888. Debates of the Adoption of the Federal Constitution. Vol I. New York: Burt Franklin.
Madison, James. 1966. Notes on the Debates in the Federal Convention of 1787 Reported by James Madison. Athens, OH: Ohio University Press.
Meyers, Marvin. 1981. The Mind of the Founder: Sources of the Political Thought of James Madison., revised edition. Hanover, NH: University Press of New England.
Somehow I think the most ardent strong central government founders would never have advocated a cradle to grave welfare state or one whose appetite for spending exceeded the worst despots of the time. Maybe I’m wrong, but it did take until 1862 for the first income tax to appear and until 1913 before the Constitution was amended to incorporate the income tax as a permanent feature of the Republic, much less all the machinery of the welfare state which has become utterly unmaintanable.
Appeals to what the founders wanted or meant are an interesting intellectual exercise given the evolution of societies, nations, and technology, but frankly of little utility today in the face of a living constitution, Year Zero progressivism (nudge, nudge, say no more), what mine is mine and what’s yours remains negotiable jurisprudence, and partisan fealty to ever changing ideas of social justice by any means necessary over the rule of law. But I digress.
Your last sentence makes it ever so clear why limited government with enumerated powers was so important conceptually. The fact that there wasn’t and can never be complete concurrence on what any set or axioms, rules or procedures for a government mean is why we must state what the government can do rather than what it can’t. The former is a basis for at least knowing what the rules are whereas the latter gives carte blanche for a penumbral explosion of takings and authority that becomes impossible for anyone to stay abreast of.
Theoretically, wouldn’t a benevolent dictatorship be better than a malevolent democracy?
The point is that no matter what form the government takes, the people will suffer under tyranny. As long as the government [or even the electorate] has no respect for individual rights or liberties, it must not be allowed hold power in trust. Even the “will of the people” must be held accountable to principle.
If anything would have appalled the founders it’s the notion that their words should be treated as holy writ. As pointed out above the ink on the constitution was barely dry before Jefferson discovered a presidential power to unilaterally double the size of the country with a large cash payment to a French despot. He also managed to discover an unenumerated right to send the navy off to blow hell out of the Barbary Coast for the protection of private mercantile interests. Within a few years of that we discovered an unenumerated right to try and steal Canada, and later used that same power to actually steal half of Mexico.
The core unenumerated right of government is to survive, and to ensure that the nation it serves survives and prospers. Jefferson acted on that, so did Lincoln, and so do we today. We don’t want to end up, to paraphrase Jefferson Davis, dead of a theory.
This is one useful aspect of Rand Paul’s sudden emergence. It’s causing some people to think more carefully about just what they want their government to do. I think the answer will be: a lot. It’s fine to snark about “cradle to grave” security, but there is just about zero support in this country for dismantling any substantial portion of the social safety net, or for diminishing the government’s regulatory role in any substantial way.
The fact is we have social security, medicare, medicaid, food stamps, a Justice department, an FDA, an EPA and so on because we want them. We don’t like paying for them, and we’re happy to listen to all the glib liars who tell us we don’t have to pay, or can get someone else to pay, but we want the government we have.
We keep hearing that this is a center right country. It’s not. There is not one single major element of government that a majority of this country would support eliminating. Some of the gingerbread and bric a brac, sure, but the big stuff, the walls and ceiling and windows of the government structure, stuff that really costs money? No.
Charles – There is no way to create a lasting government based on defining what a government can do, because there is no way to predict what might become necessary. Two hundred years ago there wasn’t an inkling of mortgage derivative markets, electromagnetic spectrum, or genetic code patents or any number of things that very definitely need some sort of regulation. Instead they took the approach of saying “here is what we can’t do” and giving basic involable rights.
I think everyone would like it all to be simpler and more clear cut, except for the lawyers maybe, but since we have to legislate to the lowest common denominator and specific cases, we get what we have. The CRA so much discussed is a pretty clear cut example that there are situations where somebody is going to be opressed no matter what, it is a matter of deciding which is more unjust and, well, oppressive. In this case it was determined the second class citizenship for a group of people was more unjust than telling business owners how to run there businesses.
Regarding the income tax/ welfare-state comments, I think you’re not taking into consideration what Steven was saying regarding differences between an agricultural nation and an industrial nation. For most pre-industrial agricultural states, up to 80% or more of the people lived and worked their entire lives on a farm, very likely where they where born or within spitting distance. They were taken care of by the farm and had protection from misfortune by the fact that the land wasn’t going to go away and worked until they died (though hopefully less as they got older, and children took over primary duties.) Most people never had an income per se, they would just get some portion of the profits of the farm (determined by the “patriarch” of the farm). It was just as easy for the government to tax the production of the farm then to get specific income taxes. (Yes, I know I’m simplifying all that.)
We the industrial revolution and the post industrial economy we now have we traded (a lot of) prosperity for that older very protected model. People get wages for specific duties as opposed to communal responsibilities. It allows for more freedoms for individuals and more accurate projections and hence more profit for the owners, but it makes taxation much more difficult and also much more intrusive. It also provides much less cushion and more room for suffering in society, which has been offset by the various instruments of the welfare state.
I guess what I’m saying, is that (almost) no one got us where we are to screw with you. There are very good reasons why the progressive elements of government you so despise are in place. We can certainly dicker over them, but we can’t just drop them without addressing the reason they were put into place in the first place.
Sorry, that went longer and more off-topic than I expected.
Excellent set of posts and comments thread Steve.
My reading of the Notes on the Debates is that Madison and the Virginians wanted a strong central government, they denied that the states possessed sovereignty (little more than great corporations), they rejected the notion of enumerated federal powers as inflexible and they wanted federal government to have the power to veto state laws. They were unable to persuade the smaller states.
I believe it was predicted by one of the delegates, that if the small states got what they wanted, equal representation by states, the wheel would turn — the Virginians would worry about centralized power and the small states would stress the importance of national power. Which is partly what appeared to have happened.
Totally agree. The most recent example by republicans is just to have tax cuts and the rest of us (individuals, cities, and states) are on our own. The problem is that we live in a globalized world and it will take Washington to design a path to compete in this world. Cities and states cannot compete with 2 billion cheap laborers in the world. Already, we have seen various bailouts, tax breaks for business at a local level to “keep” industry, extension of unemployment benefits, and casinos for every state in a desperate attempt to “create” employment. It will take a nationalized plan to deal with the world, something we can’t do at the local level. So far, China and other countries are winning this game.
Just to be clear — and, as you mentioned, this originated in a comment to a blog post, so it’s a quick take — I never disputed that the purpose of the Philadelphia Convention was to create a stronger central government. The AoC had failed and needed to be replaced. My take on what Alex wrote is that it seemed so opposite to what I’ve understood so far. I’m sure there were people who didn’t want states, some others probably wanted a king, but it’s at odds with what actually happened.
Also, I realize that Jefferson was in Paris during the Convention, which is why I tried to make a distinction between “Founders / Framers”.
We keep hearing that this is a center right country. It’s not.
Sure it is. Where most people get confused is that they think that the “right” part applies to economic policy. It applies much more to social policy.
On the economic side, it’s center-right in theory but center-left in practice. Even when you can get support for eliminating something significant, the support for elimination is vague and half-hearted and the support for keeping it is passionate and intense. Then the support typically doesn’t last because the passionate and intense people can then succeed in scaring the crap out of the half-hearted rest.
Last time I checked the US Constitution allowed for its amendment.
As for the rest, the rapid acceleration of government spedning the last 20 years belies the argument that it is all driven by mortgage derivative markets, electromagnetic spectrum, or genetic code patents or any number of things that very definitely need some sort of regulation.
The regulatory control of these things is an extremely small percentage of federal spending. The lion’s share of federal spending is income redistribution and that is what is causing all the financial problems across the globe for governments wallowing in unsustainable debt. Please find a single reference where the founders or the framers thought the purpose of the US federal government was income redistribution.
Find me a reference where they clearly indicated it wasn’t. BTW, Charles, tell me what you make of the fact that the very first piece of substantive legislation passed by the first Congress was the Tariff Act of 1789:
That’s to say, government has been “meddling” in the economy from the getgo. How does that strike you? How libertarian was that? And signed into law by George Washington, presiding officer at the Constitutional Convention. What does that suggest to you about the mindset of the Framers, about how they viewed an activist government?
There is a huge difference between meddling in the economy and becoming the elephant in the room that everyone has to worry about being stepped on by. There is absolutely no way that the designers of our Constitution envisioned the rampant federal powers of today – and they certainly did not condone these powers simply by preferring a strong central government.
The “enumerated powers” phrasing is hard to dismiss as being ambiguous unless you believe in a “living Constitution”, which is a recent construct of liberal interpretation.
Not even on social policy is this country center right.
I’ve been around for 55 years. In that time society has gone from opposition to, to acceptance of: premarital sex, interracial marriage, interfaith marriage, equal pay for women, gay sex and gay civil unions, graphic violence and equally graphic sex in various media. From single beds on Dick Van Dyke to Two and a Half Men.
We also now tolerate casual dress, odd hair and an entire array of physical self-expressions including piercing and tattoos.
Then of course there is the spread of birth control, ads for birth control and abortion. Sex ed in schools. Evolution in schools.
We’ve swung steadily to liberal positions. The right makes a lot of noise, and then they lose.
“The “enumerated powers” phrasing is hard to dismiss as being ambiguous unless you believe in a “living Constitution”, which is a recent construct of liberal interpretation.”
As old or older than Jefferson. Originalism and plain meaning interpretations, the latter always cracks me up, are much newer concepts.
Better a nation “dead of a theory” than one surviving as a perverse caricature of it’s founding principles, the cost of thinking otherwise is assured tyranny.
“We’ve swung steadily to liberal positions. The right makes a lot of noise, and then they lose.”
This is true, perhaps degeneration is the inevitable fate of every nation which has struggled in vain to to keep it’s head above the primordial ooze of man’s baser instincts.
Like reason succombs to the the mindless fears of a lynch mob, or the equally mindless herd insticts of a stampede, perhaps even the “shining city on the hill” must be burned and trampled under the feet of a proletariat dictatorship.
Hope of the contrary presently flies in the face of the evidence.
Methinks you are revising history – cite your examples, please…
For myself, I believe that the mistaken notion of a living constitution is much more recent:
The term originally derives from the title of a 1937 book of that name by Prof. Howard McBain, while early efforts at developing the concept in modern form have been credited to figures including Oliver Wendell Holmes Jr., Louis D. Brandeis, and Woodrow Wilson.
1) Exactly which of the things I mentioned is evidence of decadence? Tolerance of interracial marriage? Birth control?
2) You do understand that every advanced nation on earth has followed the same track as we have, while people like the jihadis have denounced that liberal tolerance? Can you explain why the positions of our friends in the free world are decadent relative to the positions of Al Qaeda, the Taliban and the Saudis?
This is a false argument, built on two erroneous assumptions:
1) The “liberal” philosophy is too broad a term – are you speaking of economic liberalism, or social liberalism?
If economic, I would argue vehemently against claims that liberal economics in this sense (i.e. centralized governmental control of capital and economies) has been beneficial. On the contrary, we are seeing the negative fruits of this approach in europe and a withdrawal from these policies by the EU.
If social liberalism, then we arrived at the point you seek, in regards to governmental support of equality, decades ago and the issue now is that this liberalism has encroached far beyond policy to seek further control of the citizenry in thought as well as deed (i.e. hate speech, diversity training, etc.)
2) Comparison with Al Quaeda and the Taliban is an “argument by extremes.” It is possible to be far less liberal than the current political left desires, and not be radical extremists like the Islamic fundamentalists. The choice you give is a false choice.
Cute, but I quoted the remark to which I was responding.
I do not accept, nor was I responding your characterization of “liberal positions”.
BTW, where in my statement is the word “decadence”?
You’re right. You used “degeneration” as opposed to “decadence.”
Aside from that essentially irrelevant distinction, you avoid answering.
Those ideas were definitely in the air in the early part of the country. Thomas Paine argued for a basic income, provided by landowners, in his pamphlet Agrarian Justice. Adam Smith argued for progressive taxation. Thomas Jefferson wanted a national public education system. The first Federal pensions were passed for Revolutionary War veterans, and one of the early acts of Congress was to provide public relief for French refugees.
To be sure, many of the voices of the Democratic-Republicans opposed those types of public spending. But then, many of those same people were opposed to the Constitution in the first place. The federal provision of relief for certain members of the poor, or refugees, were supported by a good chunk of the Federalist Party. There wasn’t a lot of systemization, but there were laws and programs passed over the years starting very early on. And, like today, there were those who favored such programs (generally Northerners) and those who opposed (generally Southerners). Plus ca change…
This idea that the Founding Fathers were monolithic libertarians has very little to do with any actual reading of history. Hamilton’s views were quite different from Jefferson’s, which were quite different from Madison’s, which were quite different from Adams’ which were all quite different from Paine.
All of the discussions on here that are attempting to claim that the Founding Fathers were open to the current levels of centralized governmental control are completely ignoring the overriding concept of scale.
The federalist papers give great consideration and weight to the form and controls of government, such as the negative controls that should be placed on governmental powers. However, the exact conversations and quotes from the various papers definitely do not concede that the federal government should be unencumbered in its ability to impose mandates on the states, and therefore explicitly, the collective citizens of the union.
In respect to the reach and influence of the federal government, we have moved far, far beyond the concepts of taxation and interstate commerce regulation. The current impact of federal regulation on every citizen is not anywhere supported by the actual discussions in the federalist papers, at least not that I am aware of.
If someone out there can give me a quote and reference from the founding fathers that disproves me, I would be very interested in seeing it.
Juneau, don’t hold your breath. When I asked for a cite the response was that I needed to prove a negative. This isn’t ideology, it’s theology.
Alex, I never claimed that all the founders and framers were libertarians. I will strongly claim that they would not recognize or support the progressive politics of today. I have no doubt that you can find a reference that someone supported progressive taxation, but I’ll bet it wasn’t in the context of the eat the rich mentality we have today, or that the progressive rates we have today would have been considered any less worthy of a revolution than the tea tax was in their day.
Please stop trying to convince me that those steeped in Marx and Alinsky are somehow just carrying forward the ideas of the founders and the framers. And no, I’m not referring to you.
“the eat the rich mentality we have today’
The rich control a higher percentage of income and total wealth than anytime since the 1920s. The rich are not being eaten. They are eating us. Or, as Ben Stein said (roughly), of course there is a class war, and the wealthy are winning.
“In respect to the reach and influence of the federal government, we have moved far, far beyond the concepts of taxation and interstate commerce regulation. The current impact of federal regulation on every citizen is not anywhere supported by the actual discussions in the federalist papers, at least not that I am aware of.’
You are partially correct here, but then times are different. Return us to an era where 90% of people work on a farm, we do not maintain a standing military, we had no electricity, little industry, no effective medical care, women stay home and care for families, etc. and we really can go back to the much, much smaller government of which you dream.
And Democracy requires slaves as in Athens, right Steve?
Forgive me, but the analogies you draw don’t correlate to the need for bigger government – in any way, shape, or form. Nothing that you have listed has any relation to the current level of encroachments by the federal government into private lives and industry. Where, in your list of the “old” paradigm, have we changed in such a way as to make the current levels of federal intrusion and control “necessary?”
Again, it is a question of scale, and scope. You seem to be trying to make a case for “bigger government has proven to be necessary for effective administration of citizen services and control.” The facts fly in the face of this argument – no government-controlled distributin or regulation is efficient. It is often counter-productive. A perfect case-in-point is the recent BP incident. The governmental oversight that was already in place failed miserably.
I don’t dream of NO government, I dream of just enough government to do the job and the attendant accountability to the people it is supposed to serve. Currently, both of these dreams are becoming much less attainable under the current administration.