The Founding Fathers' Coup d'État
[Adapted from chapter 5 of Our Enemy, the State.]
The revolution of 1776–1781 converted thirteen provinces, practically as they stood, into thirteen autonomous political units, completely independent, and they so continued until 1789, formally held together as a sort of league, by the Articles of Confederation. For our purposes, the point to be remarked about this eight-year period, 1781–1789, is that administration of the political means was not centralized in the federation, but in the several units of which the federation was composed. The federal assembly, or congress, was hardly more than a deliberative body of delegates appointed by the autonomous units. It had no taxing-power, and no coercive power. It could not command funds for any enterprise common to the federation, even for war; all it could do was to apportion the sum needed, in the hope that each unit would meet its quota. There was no coercive federal authority over these matters, or over any matters; the sovereignty of each of the thirteen federated units was complete….
It may be repeated that while State power was well centralized under the federation, it was not centralized in the federation, but in the federated unit. For various reasons, some of them plausible, many leading citizens, especially in the more northerly units, found this distribution of power unsatisfactory; and a considerable compact group of economic interests which stood to profit by a redistribution naturally made the most of these reasons. It is quite certain that dissatisfaction with the existing arrangement was not general, for when the redistribution took place in 1789, it was effected with great difficulty and only through a coup d'État, organized by methods which if employed in any other field than that of politics, would be put down at once as not only daring, but unscrupulous and dishonourable.
The situation, in a word, was that American economic interests had fallen into two grand divisions, the special interests in each having made common cause with a view to capturing control of the political means. One division comprised the speculating, industrial-commercial and creditor interests, with their natural allies of the bar and bench, the pulpit and the press. The other comprised chiefly the farmers and artisans and the debtor class generally. From the first, these two grand divisions were colliding briskly here and there in the several units, the most serious collision occurring over the terms of the Massachusetts constitution of 1780. The State in each of the thirteen units was a class-State, as every State known to history has been; and the work of manœuvring it in its function of enabling the economic exploitation of one class by another went steadily on.
General conditions under the Articles of Confederation were pretty good. The people had made a creditable recovery from the dislocations and disturbances due to the revolution, and there was a very decent prospect that Mr. Jefferson's idea of a political organization, which should be national in foreign affairs and non-national in domestic affairs might be found continuously practicable. Some tinkering with the Articles seemed necessary—in fact, it was expected—but nothing that would transform or seriously impair the general scheme. The chief trouble was with the federation's weakness in view of the chance of war, and in respect of debts due to foreign creditors. The Articles, however, carried provision for their own amendment, and for anything one can see, such amendment as the general scheme made necessary was quite feasible. In fact, when suggestions of revision arose, as they did almost immediately, nothing else appears to have been contemplated.
But the general scheme itself was as a whole objectionable to the interests grouped in the first grand division. The grounds of their dissatisfaction are obvious enough. When one bears in mind the vast prospect of the continent, one need use but little imagination to perceive that the national scheme was by far the more congenial to those interests, because it enabled an ever-closer centralization of control over the political means. For instance, leaving aside the advantage of having but one central tariff-making body to chaffer with, instead of twelve, any industrialist could see the great primary advantage of being able to extend his exploiting operations over a nation-wide free-trade area walled-in by a general tariff; the closer the centralization, the larger the exploitable area. Any speculator in rental-values would be quick to see the advantage of bringing this form of opportunity under unified control. Any speculator in depreciated public securities would be strongly for a system that could offer him the use of the political means to bring back their face-value. Any shipowner or foreign trader would be quick to see that his bread was buttered on the side of a national State which, if properly approached, might lend him the use of the political means by way of a subsidy, or would be able to back up some profitable but dubious freebooting enterprise with "diplomatic representations" or with reprisals.
The farmers and the debtor class in general, on the other hand, were not interested in these considerations, but were strongly for letting things stay, for the most part, as they stood. Preponderance in the local legislatures gave them satisfactory control of the political means, which they could and did use to the prejudice of the creditor class, and they did not care to be disturbed in their preponderance. They were agreeable to such modification of the Articles as should work out short of this, but not to setting up a national replica of the British merchant-State, which they perceived was precisely what the classes grouped in the opposing grand division wished to do. These classes aimed at bringing in the British system of economics, politics and judicial control, on a nation-wide scale; and the interests grouped in the second division saw that what this would really come to was a shifting of the incidence of economic exploitation upon themselves. They had an impressive object-lesson in the immediate shift that took place in Massachusetts after the adoption of John Adams's local constitution of 1780. They naturally did not care to see this sort of thing put into operation on a nation-wide scale, and they therefore looked with extreme disfavour upon any bait put forth for amending the Articles out of existence. When Hamilton, in 1780, objected to the Articles in the form in which they were proposed for adoption, and proposed the calling of a constitutional convention instead, they turned the cold shoulder; as they did again to Washington's letter to the local governors three years later, in which he adverted to the need of a strong coercive central authority.
Finally, however, a constitutional convention was assembled, on the distinct understanding that it should do no more than revise the Articles in such a way, as Hamilton cleverly phrased it, as to make them "adequate to the exigencies of the nation," and on the further understanding that all the thirteen units should assent to the amendments before they went into effect; in short, that the method of amendment provided by the Articles themselves should be followed. Neither understanding was fulfilled. The convention was made up wholly of men representing the economic interests of the first division. The great majority of them, possibly as many as four-fifths, were public creditors; one-third were land-speculators; some were money-lenders; one-fifth were industrialists, traders, shippers; and many of them were lawyers. They planned and executed a coup d'État, simply tossing the Articles of Confederation into the waste-basket, and drafting a constitution de novo, with the audacious provision that it should go into effect when ratified by nine units instead of by all thirteen. Moreover, with like audacity, they provided that the document should not be submitted either to the Congress or to the local legislatures, but that it should go direct to a popular vote!
The unscrupulous methods employed in securing ratification need not be dwelt on here. We are not indeed concerned with the moral quality of any of the proceedings by which the constitution was brought into being, but only with showing their instrumentality in encouraging a definite general idea of the State and its functions, and a consequent general attitude towards the State. We therefore go on to observe that in order to secure ratification by even the nine necessary units, the document had to conform to certain very exacting and difficult requirements. The political structure which it contemplated had to be republican in form, yet capable of resisting what Gerry unctuously called "the excess of democracy," and what Randolph termed its "turbulence and follies." The task of the delegates was precisely analogous to that of the earlier architects who had designed the structure of the British merchant-State, with its system of economics, politics and judicial control; they had to contrive something that could pass muster as showing a good semblance of popular sovereignty, without the reality. Madison defined their task explicitly in saying that the convention's purpose was "to secure the public good and private rights against the danger of such a faction [i.e., a democratic faction], and at the same time preserve the spirit and form of popular government."
Under the circumstances, this was a tremendously large order; and the constitution emerged, as it was bound to do, as a compromise-document, or as Mr. [Charles] Beard puts it very precisely, "a mosaic of second choices," which really satisfied neither of the two opposing sets of interests. It was not strong and definite enough in either direction to please anybody. In particular, the interests composing the first division, led by Alexander Hamilton, saw that it was not sufficient of itself to fix them in anything like a permanent impregnable position to exploit continuously the groups composing the second division. To do this—to establish the degree of centralization requisite to their purposes—certain lines of administrative management must be laid down, which, once established, would be permanent. The further task therefore, in Madison's phrase, was to "administration" the constitution into such absolutist modes as would secure economic supremacy, by a free use of the political means, to the groups which made up the first division.
This was accordingly done. For the first ten years of its existence the constitution remained in the hands of its makers for administration in directions most favourable to their interests. For an accurate understanding of the newly-erected system's economic tendencies, too much stress can not be laid on the fact that for these ten critical years "the machinery of economic and political power was mainly directed by the men who had conceived and established it." Washington, who had been chairman of the convention, was elected President. Nearly half the Senate was made up of men who had been delegates, and the House of Representatives was largely made up of men who had to do with the drafting or ratifying of the constitution. Hamilton, Randolph and Knox, who were active in promoting the document, filled three of the four positions in the Cabinet; and all the federal judgeships, without a single exception, were filled by men who had a hand in the business of drafting, or of ratification, or both. Of all the legislative measures enacted to implement the new constitution, the one best calculated to ensure a rapid and steady progress in the centralization of political power was the judiciary Act of 1789. This measure created a federal supreme court of six members (subsequently enlarged to nine), and a federal district court in each state, with its own complete personnel, and a complete apparatus for enforcing its decrees. The Act established federal oversight of state legislation by the familiar device of "interpretation," whereby the Supreme Court might nullify state legislative or judicial action which for any reason it saw fit to regard as unconstitutional. One feature of the Act which for our purposes is most noteworthy is that it made the tenure of all these federal judgeships appointive, not elective, and for life; thus marking almost the farthest conceivable departure from the doctrine of popular sovereignty.
The first chief justice was John Jay, "the learned and gentle Jay," as Beveridge calls him in his excellent biography of Marshall. A man of superb integrity, he was far above doing anything whatever in behalf of the accepted principle that est boni judicis ampliare jurisdictionem. Ellsworth, who followed him, also did nothing. The succession, however, after Jay had declined a reappointment, then fell to John Marshall, who, in addition to the control established by the judiciary Act over the state legislative and judicial authority, arbitrarily extended judicial control over both the legislative and executive branches of the federal authority; thus effecting as complete and convenient a centralization of power as the various interests concerned in framing the constitution could reasonably have contemplated. We may now see from this necessarily brief survey, which anyone may amplify and particularize at his pleasure, what the circumstances were which rooted a certain definite idea of the State still deeper in the general consciousness. That idea was precisely the same in the constitutional period as that which we have seen prevailing in the two periods already examined—the colonial period, and the eight-year period following the revolution. Nowhere in the history of the constitutional period do we find the faintest suggestion of the Declaration's doctrine of natural rights; and we find its doctrine of popular sovereignty not only continuing in abeyance, but constitutionally estopped from ever reappearing. Nowhere do we find a trace of the Declaration's theory of government; on the contrary, we find it expressly repudiated. The new political mechanism was a faithful replica of the old disestablished British model, but so far improved and strengthened as to be incomparably more close-working and efficient, and hence presenting incomparably more attractive possibilities of capture and control. By consequence, therefore, we find more firmly implanted than ever the same general idea of the State that we have observed as prevailing hitherto—the idea of an organization of the political means, an irresponsible and all-powerful agency standing always ready to be put into use for the service of one set of economic interests as against another.