Power to the People?

In 1787 many Americans were convinced that the “perpetual union” they had created in winning independence was collapsing. Six years earlier in the Articles of Confederation the thirteen state governments had surrendered extensive powers to a congress of delegates from each state legislature. Six years had proved the powers surrendered to be not enough. With no power to tax or to enforce its decrees, the Congress had been helpless to restore the credit of a nation heavily indebted to foreign powers, helpless to halt runaway inflation, helpless to prevent trade wars among the states. The famous convention of 1787 met in Philadelphia to define the additional powers needed to enable Congress to do its job effectively. Instead, the convention proposed a brand new national government. In the year that followed publication of its proposals in September, Americans had to decide, state by state, whether to abandon the old Articles of Confederation for this new Constitution, which was to go into operation when and if nine of the thirteen states approved it. Within a year ten states had done so.

That year was marked by fierce debate, in public assemblies, in the press, in private letters, and most importantly in the popularly elected state conventions through which, by the terms of the Constitution, official approval or disapproval was to be reached. Having lived through a revolution, the men and women who engaged in this contest brought to it more experience in making and breaking governments than any previous or subsequent generation of Americans. Their arguments, dissecting the terms of the document that still defines our government, are still worth listening to. In these volumes Bernard Bailyn has given us a sample of what they had to say, 1,862 pages of it (limited to the period from September 1787 to August 1788), along with 525 more pages of related documents, helpful notes explaining obscure references and allusions, an extensive chronology of related political events from 1774 to 1804, and brief but detailed biographies of the participants.

To serious students of the period, few of the texts will be new. Three hundred eighty-eight pages are devoted to selections from the well known Federalist Papers by Madison and Hamilton (the few by John Jay are omitted). Most of the pieces opposing the Constitution have been reprinted relatively recently in the seven volumes of Herbert Storing’s The Complete Antifederalist.^* And the whole collection is heavily indebted (as the editor generously acknowledges) to the volumes that have appeared in the ongoing Documentary History of the Ratification of the Constitution, published by the State Historical Society of Wisconsin (eventually to reach nineteen volumes).

That the publishers of the Library of America should have thought it worthwhile to bring out this collection now, evidently intended for the general public, is evidence of the continuing vitality of the subject. Blurbs on the jacket from various public figures assure us that this is the case. Although it seems unlikely that many readers will persevere through the whole 2,387 pages, anyone who goes very far in them will indeed encounter a discussion in which assessment of the Constitution reaches to fundamental questions of how any government obtains or deserves the consent of the governed.

The immediate purpose of each article or essay when first published was not so cosmic; it was simply to persuade its readers to accept or reject the Constitution. In general those who were for it (Federalists) maintained that the nation’s very existence was so threatened by the impotence of the existing Congress that any delay in setting up a true national government would spell anarchy, disunion, and disaster. Those who were against adoption (Antifederalists), while acknowledging the need to give Congress more power, argued that the national government proposed in the Constitution would substitute tyranny for mere disorder and inconvenience.

The terms of the debate were dictated largely by the Antifederalists, who included such prominent revolutionaries as Samuel Adams of Massachusetts and Patrick Henry of Virginia. They could fix on particular provisions of the Constitution and project dire consequences from each of them: the federal judiciary would preempt the functions of the state judiciaries and abolish trial by jury, the new government’s taxes would swallow up the country’s whole resources and eventually eliminate the state governments, the presidency would turn into a lifetime office and the senate into a hereditary aristocracy. Federalists, in response, had to justify provisions that some of them would privately have preferred to alter. They could not acknowledge any defects for fear of opening the whole document to revisions that would cripple the national government they hoped to establish.

What nevertheless elevated the debate was the agreement of both sides on principles of government that they had all become familiar with in the preceding years of revolution and constitution-making. They all agreed that the only kind of government for Americans, the only kind Americans would accept, was republican. And in republican government, they agreed, all power derived from the people. Ideally and originally the people exercised power themselves in assemblies attended by the whole population. But such direct democracies were a thing of the past, not feasible in any republic embracing more than a small territory and unthinkable in a country as large as the United States or even in its smallest states. In a republic of any size the people must delegate their power or a part of it to a few of their number to exercise for them. The great problem of republican government was to devise ways to keep those few honest, to prevent them from betraying the trust reposed in them. No constitutional device could offer complete protection against the ingenuity of human corruption; what a constitution had to do was make betrayal as difficult as possible.

This much Federalists and Antifederalists agreed on, and their debate over the Constitution was in large measure a debate over whether specific provisions made betrayal likely or unlikely. As they argue the case in these pages, it becomes apparent that while they agreed on basic principles, they differed not merely on whether the Constitution adequately embodied those principles or offered adequate protection for them: they differed in their understanding of the principles themselves, their understanding of what precisely they thought happened or ought to happen in the creation and operation of republican governments.

They had all seen such governments created in the several states after the Declaration of Independence in 1776. In a sense they could all feel that they had shared in the creation. Indeed republican theory required that they and all other Americans feel it. But in fact the state governments had been created, not by assemblies of the people but by assemblies of their representatives, and those assemblies had been chosen by no more than the 20 percent of the population who were adult white males. It required a certain stretch of the imagination for most people to feel that they had participated in transferring the power of the people to the few who governed.

The Antifederalists were less willing to make the stretch than the Federalists and consequently more reluctant to see any government as their own creature. For Antifederalists government remained always something other. They accepted the unfeasibility of direct democracy, but they regretted its unfeasibility and wanted government to resemble it as closely as possible by making the few who governed resemble in every way the many the governed. Hence frequent elections (more frequent than the proposed Constitution provided) and rotation in office (not provided at all in the Constitution) were favorite Antifederalist devices for improving the document. Not the expertise gained from experience in office, but the common humanity gained from experience out of office was what qualified a person to govern. The most trustworthy part of the government was a large, annually elected legislative assembly, designed to sit briefly and then return its members to their farms and workshops. Most of the existing state governments, in which the legislatures dominated, fitted the picture, and the new national government provided by the Constitution did not. In a sense the Antifederalists could be said to put a premium on mediocrity. They did not want to be governed by people who were smarter or richer, better spoken or better bred than their neighbors.

The Federalists, on the other hand, had no trouble in seeing the government they proposed as the creature of the people, however remote it might be from any direct action of actual people. They were quite happy with the fact, only grudgingly allowed by Antifederalists, that the only way the people could create or participate in government was through representatives. For the people to act directly in government was as undesirable as it was unfeasible, for as one Federalist put it, “the people themselves are totally unfit for the exercise of any of the powers of Government.” Alexander Hamilton thought that, contrary to the standard view, “the ancient democracies, in which the people themselves deliberated, never possessed one feature of good government.” Another Federalist, Fisher Ames of Massachusetts, contended that the only thing the people by themselves could do about government was to destroy it.

The great advantage of representative government over direct democracy, in the Federalist view, was that it enabled the people to delegate power to persons as unlike most of themselves as possible, to persons distinguished by their abilities and talents, by the very talents that would lead voters to favor them. Hereditary aristocracy, agreed, was a bad thing, but among every people there were “natural aristocrats,” people with greater virtue, greater talent, and, perhaps incidentally, greater wealth than their neighbors. It was they to whom the people should trust their government, for they would know what the people wanted better than the people themselves could. They would be too astute, James Madison argued, to be “misled by the artful misrepresentations of interested men,” they would not be overcome by “irregular passion,” and they would resist misguided popular pressure “until reason, justice and truth, can ragain their authority over the public mind.”

When the Constitutional Convention sought popular endorsement of the Constitution, in order to rest it more directly on the people than mere approval of the state legislatures would have provided, they did not submit it to a popular referendum. They specified that it be judged by popularly elected coventions, where a small number of delegates of the people could decide for them. The wisdom of this move became apparent when Rhode Island, which was dominated by Antifederalists, refused to choose such a convention and submitted the question to a direct popular vote. The result, though skewed by a Federalist boycott of the election, was an overwhelming defeat of the Constitution, 2,711 to 239. At Providence the Federalists in a town meeting denied that this or any such referendum could be a valid expression of popular will, precisely because it was not the act of a representative convention. Without the opportunity to meet together and exchange views, no one could decide what was good for the whole state. Since it was physically impossible for the people of the whole state to assemble, they could express their true will only by, electing delegates from each town to a statewide convention, just as the Constitution itself prescribed.

In no other state did the Antifederalists go to the extreme of trying to place decisions on public policy directly in the hands of the people. But in attacking the Constitution, Antifederalists everywhere focused discussion on the remoteness from the people of the representation it would create. According to the Constitution, there was to be no more than one representative in Congress for every 30,000 people in a state. In the first Congress, the total number of representatives would be only sixty-five, fewer for the entire United States than the number of most state legislatures. (In 1787, only Delaware and New Jersey had legislatures with fewer than sixty-five members.) Federalists thought this number quite adequate. The larger the constituency (and thus the fewer representatives), the more likely it was to contain a good number of natural aristocrats for the voters to choose from. In large constituencies it would be “more difficult for unworthy candidates to practise with success the vicious arts, by which elections are too often carried; and the suffrages of the people being more free, will be more likely to centre on men who possess the most attractive merit, and the most diffusive and established characters.”

Antifederalists could agree that large constituencies would very likely produce a Congress full of such men of established character. But that kind of Congress, in their view, would not be truly representative. In the New York ratifying convention Melancton Smith, though himself a merchant and lawyer of established character, explained the Antifederalist case most persuasively. Smith readily agreed that every society produces natural aristocrats, but he thought that “We ought to guard against the government being placed in the hands of this class—They cannot have that sympathy with their constituents which is necessary to connect them closely to their interest.” A representative assembly, Smith said, should resemble the people represented. It should accordingly contain a few natural aristocrats, but a much larger number of ordinary “yeomen.” As constituted, the number of representatives in Congress was to be so few that the office “will be highly elevated and distinguished” and one to which “sensible, substantial men, who have been used to walk in the plain and frugal paths of life” would not aspire. As a result, “none but the great will be chosen.”

A representative, the Antifederalists argued, was supposed to bring the needs and wishes of his neighborhood to the government, the needs and wishes of people he knew and who knew him, and 30,000 people could not be a neighborhood. It followed that republican government was as unfeasible in large territories as direct democracy. To represent properly the people of a country as large as the United States would require an assembly too large to work together as a deliberative body. The only way to extend republican government over so large a territory was by a series of republics (as the great Montesquieu had contended), which might be joined in the kind of alliance already provided by the Articles of Confederation.

The alliance could be made stronger than it was (as the Convention had been charged to do), but any government operating over the whole territory, such as the Constitution called for, though it might be republican in name, would be or become an oligarchy or dictatorship in fact. Its members, whether congressmen, senators, or president, would be unknown except by reputation to most of the people. They would be unable to win the trust that people gave willingly to friends and neighbors. Hence they would have to resort to force, and the fact that the Constitution allowed for a standing army seemed to be an acknowledgment of such an expectation on the part of the Constitution’s authors. A columnist who signed himself “Brutus” put the Antifederalist argument soberly and effectively in a series of articles in the New York Journal:

The confidence which the people have in their rulers, in a free republic, arises from their knowing them,…but in a republic of the extent of this continent [Americans already considered the continent theirs], the people in general would be acquainted with very few of their rulers…. The consequence will be, they will have no confidence in their legislature, suspect them of ambitious views, be jealous of every measure they adopt, and will not support the laws they pass. Hence the government will be nerveless and inefficient, and no way will be left to render it otherwise, but by establishing an armed force to execute the laws at the point of the bayonet.

The Federalists, of course, could point out that by Antifederalist standards most of the existing states were also too large for republican government. But beneath the division between Federalists and Antifederalists lay a conflict within representative government, within the very concept of representation itself that can never be resolved, and continues to trouble the days and nights of anyone who serves as a representative, whether in a large republic or a small.

The cry of “no taxation without representation” was still ringing in the ears of Americans in 1787. And the kind of representation intended by that slogan was the kind the Antifederalists intended. When the colonists had complained against taxation by Parliament, they had not asked for representation in that body, because they did not think such a representation was feasible: an effective representation of Americans would have added too many members to a Parliament that was already about as large as a deliberative body could be. Moreover, any representative sent overseas would lose touch with his constituents, cease to be truly one of them, and thus be unable to convey their wishes. A representative was supposed to be the agent of the people he represented. Only in the local colonial assemblies could such representation be found.

What no one wanted to say in contending against British taxation was that the representatives in colonial assemblies, like those in the British House of Commons, had always been much more than the agents of the people who elected them. Representative assemblies, despite the authority of royal governors, were the most powerful part of colonial governments, and after 1776 they were the dominant part of the new state governments. As such they had to make laws that served the interests and compelled the obedience of the whole population of a state. In doing so they might have to support measures that their particular constituents opposed. Indeed, as Robert Livingston reminded the New York convention, “There are a thousand things which an honest man might be obliged to do, from a conviction that it would be for the general good, which would give great dissatisfaction to his constituents.” The validity of a representative’s vote in a legislative assembly has never depended on the approval of his constituents. While serving as their agent, he also has to act independently of them as one of the sovereign rulers of a sovereign state. The two functions may often happily coincide, but conflict between them is inherent in representative government. If the representative loses his ties to his constituents, the government ceases to be representative; if he and his colleagues lose their responsibility to the whole state, the government itself ceases. Somehow the conflict has to be contained.

In the debate over the Constitution, the Antifederalists argued, in effect, that the scale of representation in a national government would obliterate local attachments and thus make the government unrepresentative and unrepublican. The Federalists in response argued that the state governments provided enough of that kind of representation and that the national government would benefit by the appropriately larger vision of representatives from larger districts. In the Federalist view the state governments had in fact been so dominated by the local attachments of the members that they had ceased to offer responsible government. Rhode Island was the favorite example, where legal-tender laws had sent debtors in pursuit of creditors to pay off debts in worthless scrip. The national government was needed, not only to preserve the union but to check the irresponsibility of the state governments.

In any immediate sense the Federalists won the debate: they persuaded the state ratifying conventions, though sometimes by narrow margins, to establish a national government in which representation was different in kind from anything Americans had ever known in their colonial or state governments. The new national government happily disappointed the Antifederalist predictions. However remote from their constituents the members might be, they did not have to rely on a standing army to enforce the laws they made. The confidence and trust of the people themselves that the Antifederalists had thought it impossible to extend beyond the familiarity of a neighborhood easily overleapt such bounds.

But while Federalists got the national government they wanted, its character exhibited less of the large, national vision, less of the freedom from local attachments that they had hoped for, and by the same token less of the remoteness from actual people that the Antifederalists had feared. The talents required for election to the national government proved to be not so very different from those required for success in a neighborhood. Even the “talents for low intrigue and the little arts of popularity” which Hamilton thought would prevail only in state contests have proved pretty effective on a national scale, whether in presidential or congressional elections. And the Antifederalist yearning for direct democracy has continued to surface in proposals for national referendums, rotation in office, and interactive televised “town meetings.” It generates demands for limiting the discretion of office-holders by constitutional amendments to require balanced budgets or mandatory sentencing. It even threatens the stability of the national government in public opinion polls, lending power to that momentary “irregular passion” of the public mind that Madison hoped to overcome by the sober thoughtfulness of natural aristocrats.

The debate over the Constitution retains its vitality because the Antifederalists spoke for a populist element that makes representative government representative, while the Federalists spoke for a national interest that can require defiance of popular pressures. Republican government cannot survive the loss of either element. The representative who loses touch with his constituents loses office, but the representative who sacrifices the national interest to local prejudice or to the changing winds of popular opinion betrays all of the people for some of the people. Anyone walking this tightrope will find an uncomfortable familiarity in the arguments on both sides of the debate over the Constitution. The Federalists won, but the issues persist.