Читать книгу American Political Thought - Ken Kersch - Страница 24

As he would later emphasize in The Federalist, a series of newspaper articles advocating ratification of the Constitution that he co-authored with James Madison and John Jay under the pseudonym Publius, Alexander Hamilton understood the chief problem under the Articles to be inadequate “energy” in the national government. George Washington concurred in the view that effective governments are possessed of adequate power to sanction, coerce, and enforce to secure the common good, and that the proposed Constitution provided the framework for such a government.

Convinced that the country had entered a “critical period” in which its survival was at stake, fifty-five delegates from every state save Rhode Island met in closed-door session in Philadelphia from May to September 1787, with George Washington presiding – silent until the end – and James Madison, Gouverneur Morris, and James Wilson driving much of the discussion. The convention lost a few delegates along the way, a number of whom, fired by the republicanism that had informed the Articles of Confederation, smelled a rat.

The challenge was to devise a popular government that would remain true to its core principles while proving institutionally effective and sustaining popular support. James Madison and Edmund Randolph seized the initiative – illegally, given the limited mandate of the convention – to propose an entirely new framework of national government. They proposed the creation of a national executive (the President) and a federal judiciary, as well as a legislature, the Congress, directly elected by the people according to population, with real powers to levy taxes and establish an army. In addition, they expressly proposed that appropriately authorized national laws would take precedence over those of the states. A challenge to this “Virginia” (or “Large States”) plan was mounted by the less populous states (the “New Jersey Plan,” spearheaded by William Paterson), which called, among other things, for the retention of the unicameral legislature of the Articles of Confederation, with one vote per state. The proposed institutions of the new government were discussed and debated at great length at the Philadelphia Convention, some, to be sure, more extensively than others. (The deeply divisive subject of chattel slavery was barely discussed, though it was clearly understood that guarantees for its continuation in pro-slavery states had to be scrupulously provided.) In the end, a Great (or “Connecticut”) Compromise, brokered by Roger Sherman and Oliver Ellsworth, divided the Congress into an upper and lower house, with the former comprised of two representatives from each state, elected by the legislatures of those states, and the latter directly elected by the people on the basis of population.

Departing from the design of the Articles, the proposed Constitution’s Preamble announced that “We the people” (not “We the undersigned delegates of the states”) were promulgating the country’s fundamental law. Citizens were represented directly in the House of Representatives rather than through the intermediary of their state governments. They were taxed directly as well, giving the national government the wherewithal to act and spend without applying cap-in-hand for requisitions from the states. There was provision for a strong, independent executive, and a potentially powerful federal judiciary. Of those delegates who remained for the duration of the constitutional convention, the product of these sustained deliberations won overwhelming, though not unanimous, support.

The men who gathered at Philadelphia to frame the new Constitution were an elite and learned lot who had undertaken additional studies in both ancient and modern history and political theory to inform their momentous deliberations. They would draw on this political science extensively in explaining and justifying their handiwork to what, they knew, might be a skeptical and divided polity. Convincing arguments mattered. But those supporting ratification put their thumbs on the scale. While maintaining the “one state, one vote” principle of the Articles, they altered the unanimity requirement by providing for ratification by nine of the thirteen states. They circumvented entrenched interests in the state legislatures while taking care to avoid creating new rival power centers by allowing (temporary) state ratifying conventions. This, moreover, would lend the new Constitution “downstream legitimacy” by providing for ratification by the people themselves. They would be temporarily mobilized to directly exercise their sovereign authority in a moment of high importance that Alexander Hamilton, among others, suggested would do nothing less than decide the fate of all mankind, and then be immediately shuffled off the national stage.⁴

We are now one nation of brethren. We must bury all local interests & distinctions…. No sooner were the State Governments formed than their jealousy and ambition began to display themselves. Each endeavored to cut a slice from the common loaf, to add to its own morsel, till at length the confederation became frittered down to the impotent condition in which it now stands…. To correct its vices is the business of this convention.

James Wilson (1787)

The lesson learned during the 1780s by those who supported the ratification of the new Constitution – the Federalists (a name advisedly chosen to avoid the scare-mongering labels “nationalists” or “consolidators”) – was that the country needed a more powerful centralized government than the Articles of Confederation allowed, and a more competent, virtuous, and responsible leadership than the locals had chosen in the states. There was agreement on this – in theory at least – between, on the one hand, Federalist supporters of the 1787 Constitution like John Adams, James Madison, Alexander Hamilton, and George Washington and, on the other, Antifederalist opponents like Samuel Adams, Richard Henry Lee, George Mason, and Patrick Henry. They had radically different concerns, however, about the proffered solutions.

The Federalists argued that the new Constitution achieved the necessary vigor and competence at the national level while simultaneously, and ingeniously, providing for popular rule and protecting the fundamental rights whose violation had occasioned the American Revolution. The Antifederalists, by contrast, were convinced that the new Constitution would lead to the ultimate evisceration of the rights the American revolutionaries had fought to preserve, through the (re)creation of a distant, overly centralized government, and a dangerously empowered elite, who would institute despotic, quasi-monarchial rule under new auspices. The battle was hard-fought: the future of liberty, and the survival of the nation, many believed, was at stake.

Alexander Hamilton and James Madison were the pre-eminent proponents of the new Constitution. Hamilton, a fiercely intelligent and peerlessly ambitious Caribbean immigrant of obscure origins, was the chief proponent of the creation of a strong, active national government both as a solution to the country’s current problems and as a foundation for the nation’s future glory as one of the world’s most powerful, eminent, and prosperous states – the equal, if not the better, of Great Britain or France. The young Hamilton, a financial genius, had penned brilliant pamphlets in support of the Revolution, and quickly came to the attention of the head of the revolutionary army, George Washington, with whom he became an aide-de-camp and an unusually close confidant. Hamilton spearheaded, and was the most prolific author of, The Federalist, a series of eighty-five essays published in the New York Independent Journal which his future rival, Thomas Jefferson, called “the best commentary on the principles of government which ever were written.” The Federalist essays struck “Hamiltonian” themes, such as a reiteration of the surpassing need for “energy” in government: that is, the idea that the national government should have power to act quickly, decisively, and effectively in carrying out its responsibilities. Hamilton insisted that, as the country’s travails under the Articles had made all too clear, the revolutionary era opposition between liberty and authority had to be rethought. The order and stability that a well-framed, energetic government could provide were not inherently a threat to liberty and justice but, ultimately, their guarantor. An appropriately empowered and effective national government, Hamilton argued, was worthy of the respect and esteem of all true republicans.

Hamilton’s argument for the ratification of the new Constitution centered on the relationship between (constitutionally) authorized means in the service of (legitimate) governmental ends, an approach he deployed most emblematically in the Opinion on the Constitutionality of the [National] Bank (1791), which he later prepared for President Washington while serving as the country’s first Treasury Secretary. Given the ultimate requirement of national self-preservation, some governmental powers, particularly those related to existential threats to the nation’s security, must be all but unlimited. On this, the ultimate test was success. But the national government also required all the powers essential to actively and energetically realize the full range of its constitutionally legitimate objectives. As such, the national government needed the power to tax. Federal law, moreover, where legitimate, had to be clearly supreme to any countervailing centrifugal assertions of control by the states. Weak government, Hamilton emphasized, is bad government. Borrowing from Hamilton, the Federalist Chief Justice John Marshall would soon insert this argument into one of his most celebrated – and excoriated – opinions: “Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.”⁵

Given these concerns, Hamilton was perhaps the leading proponent of broad understandings of executive power. The unity of the office of the President was not accidental. Presidents often had to act quickly, with a keen eye to ever-changing threats and important national objectives. Hamilton was also a fervent proponent of a powerful federal judiciary, possessed of all the power necessary to void laws in contravention of the Constitution – what we now call “judicial review.”⁶ He was especially concerned that the courts could guarantee the rights of property and contract essential to the development of a dynamic capitalist economy. The requirements of the Constitution are the nation’s fundamental law, ratified by “we the people,” acting, in a rare moment, in their sovereign capacity, he explained in Federalist #78. As such, its requirements are foundational, and superior to ordinary legislation, adopted as part of the day-to-day business of representative legislatures. It is in the nature of things that in the case of conflict, the fundamental trumped the ordinary: the solemn stipulation of the people themselves trumped the actions taken by their agents. It was the job of independent, life-tenured federal judges, exercising their apolitical, legal judgment, to impartially enforce these foundational constitutional requirements. This would conduce to a government that would exercise – to the fullest extent of its authority – only its constitutional powers, while guaranteeing fundamental constitutional rights.

Albeit to a different degree with somewhat different preoccupations and concerns, James Madison was similarly alarmed by the national government’s fecklessness under the Articles of Confederation, and especially by the inflamed popular excesses of a state and local politics disturbingly heedless of rights.

The latent causes of faction are … sown into the nature of man…. The regulation of these various and interfering interests forms the principal task of modern legislation.

Federalist #10 (Publius [James Madison]) (1787)

Madison was adamant that the new Constitution provide the national government with an absolute veto power over state laws via a “council of revision” – and was chagrined when a measure proposing one failed to pass. Forced to take this defeat in his stride, Madison, in his contributions to The Federalist, explained the safeguards that the basic structures of the Constitution would provide for rights, given the document’s creation of the significantly stronger national government that he supported. (“[Y]ou must first enable the government to control the governed; and in the next place oblige it to control itself,” he wrote.) Madison reasoned his way through these countervailing concerns most succinctly in Federalists #10 and #51. There, he limned the core of the problem as one of “faction,” which in Federalist #10 he defined as “a number of citizens, whether amounting to majority or minority of the whole, who are united and actuated by some common impulse or passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community.”

Unlike some of his peers, Madison did not trust that a virtuous citizenry would cure the problem of faction and guarantee liberty. His proposed solution was instead to establish a geographically extended “republic.” (Here he used his own, novel definition of the term, which departed from ancient understandings that were synonymous with direct citizen rule in small, unitary polities.) This would encompass a multiplicity of contending factions that would mitigate the effects of each through opposition, filter popular passions by instituting representative (as opposed to direct) democracy, and divide power with an eye to the encouraging clashes between contending governmental power centers. This design instituted a system of checks and balances through the mechanisms of federalism (the “compound republic”), the separation of powers (legislative, executive, and judicial), and the multiplication of civil society’s opposing factions through the extension of the sphere made possible by a large country.

The Antifederalists, a diverse group socially, culturally, ideologically, economically, and politically, were united by their alarm at the new Constitution, and unconvinced by the arguments made in its defense. They set themselves in fervent opposition to its adoption. Their objections were many, and they gave it all they had. The proposed Constitution had been hatched by a secret cabal, making an illegal end-run around the Articles. It had done away with the sovereign states in favor of a consolidated, all-powerful central state. It had abandoned core principles of republican government, which political philosophers from Aristotle to Cicero to Montesquieu had taught was impossible over such a broad geographic expanse. There were too few representatives, rendering the system democratically deficient. This fatal deficiency was especially troublesome since Antifederalists held that the role of representatives in a republic was not to act freely as their trustees but to mirror and register the views of their constituents.⁷ Given the Constitution’s ambiguities, and a host of dangerous clauses, moreover, its grant of powers to government was, in effect, plenary. Astonishingly – especially given the country’s English constitutional heritage – there was no national Bill of Rights, which left critical guarantees like the freedom of speech, rights of conscience and religious liberty, due process of law, and the right to keep and bear arms to the whims of a distant governing class. Alas, bemoaned the Antifederalists, this was as one would expect from a document that had sprung from the minds – and served the interests – of a scheming and remote aristocratic elite.

Some contemporary scholars have argued that, rather than simply being naysayers, those who objected to the Constitution – the likes of Edmund Randolph, George Mason, Elbridge Gerry, and Patrick Henry, and pseudonymous authors like Cato, Brutus, and the Federal Farmer – were informed by a coherent, republican political outlook and philosophy.⁸ Evincing a pronounced affinity for the political ideas that sustained the ancient Greek and Roman republics, the Antifederalists, it has been observed, celebrated the political life of small, pastoral republics, comprised of a virtuous and engaged citizenry. They were ever alive to the threats to self-government posed by moral corruption and decline, fomented by distant elites, lacking in patriotism and lusting for power. Rule by these corrupt and distant elites was heedless, if not a self-conscious enemy, of the institutions of local civil society – family, church, school, and local government – which promoted and sustained character and civic and Christian virtue. All this portended either decline or tyranny. As such, the Antifederalists affirmatively advanced the republican values of active political participation aimed at the common good, sacrifice, localism, and the promotion, both institutionally and otherwise, of civic and personal character and virtue.

Against this resistance, which might well have succeeded, it helped that the Federalists counted some of the new nation’s most illustrious figures – not least the revolutionary hero George Washington, who it was understood would serve as the nation’s first President – among their number. Although published in New York with an eye to the ratification vote there, The Federalist essays were widely distributed. The Federalists quickly agreed to add a Bill of Rights immediately after the document’s ratification. The politically savvy Alexander Hamilton fashioned a brilliant financial plan – soon to be implemented via the plan set out in his Report on Credit (1790) and Report on Manufactures (1791) – that made it in the interest of the country’s business and financial classes and the highly indebted states to support ratification. In a sop to the commercial and financial periphery, the country’s capital city was moved south from the northern financial centers of New York and Philadelphia to Virginia (today, Washington, DC).