Between 1776 and 1789 Americans replaced a government over them with a government under them. They have worried ever since about keeping it under. Distrust of its powers has been more common and more visible than distrust of the imperial authority of England ever was before the Revolution. Garry Wills believes “there is more to this attitude, in our culture, than the normal and universal resistance to authority,” and in A Necessary Evil he sets out to find what the Americans who have resisted or rejected government over two centuries have in common. He discovers it in a set of values, common to all Americans but championed by some at the expense of contrasting values, equally common, which usually act in counterpoise to support legitimate authority.
Wills identifies no fewer than fourteen specific values, each with its progovernment counterpart, that lay behind the dissent of such diverse individuals and groups as John Calhoun and Timothy McVeigh, the Ku Klux Klan and hippie communes:
Here are the values we shall find recurring wherever government is opposed: a belief that government, as a necessary evil, should be kept at a minimum; and that legitimate social activity should be provincial, amateur, authentic, spontaneous, candid, homogeneous, traditional, popular, organic, rights-oriented, religious, voluntary, participatory, and rotational.
Values contrasting with those are not polar opposites, but distant points on the continuum of approaches to government窶馬amely, a belief that government is sometimes a positive good, and that it should be cosmopolitan, expert, authoritative, efficient, confidential, articulated in its parts, progressive, elite, mechanical, duties-oriented, secular, regulatory, and delegative, with a division of labor.
The abstractions acquire more concreteness as Wills examines the prolific expression of antigovernment sentiment throughout American history. He divides into six different categories the opponents of government who have magnified the first set of values to the exclusion of the second: nullifiers (like Calhoun, who wanted the states to have the power to prevent the enforcement of particular laws), seceders (the Confederacy in the Civil War), insurrectionists (like John Brown at Harpers Ferry), vigilantes (abortion clinic bombers, the Ku Klux Klan), withdrawers (Thoreau, Henry Adams, H.L. Mencken, Utopian communities), and disobeyers (notably Martin Luther King Jr.).
Separate chapters offer brief descriptions, in chronological order, of the episodes in which Americans in each of these categories have arrayed themselves against government. Clinic bombers think they are protecting “religion, social homogeneity, tradition” in despite of a government that is “too cosmopolitan, too secular, too disrespectful of traditional mores.” When Timothy McVeigh (an insurrectionist) writes a note saying “Obey the Con-stitution of the United States and we will not shoot you,” Wills sees “the whole cluster of anti-governmental values” implicit in it, supposedly “proving that McVeigh spoke for the authentic people, in a voice provincial and amateur, not cosmopolitan and expert.” Even Thoreau and Henry Adams, who “fit less than others into normal polarities of feeling about the government,窶ｦwere spontaneous, organic, and personal in their thought, as opposed to the mechanical and impersonal operations of government. They carried localism so far as to find no government acceptable outside the counsels of their own heart[s].”
Understanding that all these people have been strongly attracted to the antigovernment values Wills lists, and less attracted to their counterparts, may, as he suggests, dispel the impression that they have been merely perverse or irrational, but it is pretty clear that he considers most of them, with the exception of King, to have displayed both qualities in abundance. Indeed, his examination of the various dissenting groups seems to have been inspired, at least in part, by the opportunity it offers to show just how perverse and irrational he thinks most of them were.
Wills reserves his highest scorn for what he calls “academic nullifiers” and “academic insurrectionists,” a parcel of law professors, with several of whom Wills has already done battle in these pages. None of them has actually engaged in nullification or insurrection, but they all, as he sees it, offer specious legal justification for extra-legal or illegal actions against government. Bruce Ackerman and Akhil Reed Amar of the Yale Law School interpret the Constitution as though its provisions were designed for periodic rejection and transformation through a variety of authentic, spontaneous, participatory, voluntary, popular movements, of the kind that past nullifiers have resorted to. Sanford Levinson of the University of Texas and David C. Williams of Indiana University find in the Second Amendment’s guarantee of the right to bear arms a formal invitation to overthrow the government, an interpretation they defended here in answer to Wills’s article which argued for restricting the right to the militia.1
Wills now points again to the absurdity of supposing that the Constitution provides for its own destruction. By placing the professors alongside earlier nullifiers and insurrectionists he attaches them by association to a whole set of “myths” about the past that have gone hand in hand with the values nourishing hostility to government over two centuries. In setting out to correct the myths, Wills takes aim not only at misguided scholars and actual opponents of government but also at participants in government who employ the same historical mythology to discredit their political opponents.
One of the favorite values in the list of antigovernment positions is the superiority of the amateur to the professional, and helping to sustain it is the myth that the War for Independence was won by amateurs, the American militia, the minutemen who plucked their guns from the mantelpiece and went out to defeat the redcoats. Wills shows at length that in most Ameri-can homes the mantel was bare, that widespread ownership of guns in America did not begin until long after the Revolution. The Second Amendment to the Constitution secured to militiamen (and only to them, Wills argues) the right to bear arms, but it was a right that few Americans, in or out of the militia, were equipped to exercise. The militia were everywhere handicapped by the lack of guns and even more by lack of skill and discipline in the use of them, which only professional soldiers acquired. The Revolution was won when Washington was allowed to equip and enlist men in the Continental Army for three-year terms, long enough to make professionals of them.
Another form of amateurism, expressed today in the movement for congressional term limits, was the provision of many of the first state constitutions for rotation in office. Wills shows how the provision crippled both the state governments and the Continental Congress, preventing those who acquired the skills of an office from using them once they were acquired. The deficiency was remedied for the federal government at the Constitutional Convention by men who had seen the damage it did. The Constitution provided longer terms of office than the state governments did and omitted any provision for rotation. A successful movement for term limits would undo the work of the Founders, who wanted the national government to enjoy the political expertise that experience in office could bring to it.
Closely allied to their support of amateurism was the belief of government’s opponents in the superiority of the provincial to the cosmopolitan and thus of state governments to the national government. State governments seemed more authentic because they were more directly connected to the people choosing them, more participatory, more religious (many states supported churches and limited those who held office to Protestant Christians). Accordingly, it has been a recurring belief as well as an assertion among antigovernment groups, echoed in modern calls for a “return” of powers to the states, that the Declaration of Independence created thirteen sovereign states that later joined in a union to which they remained somehow superior. Wills has no trouble showing that the union antedated independence. At the time of the Declaration, the Congress, and only the Congress, was exercising most of the powers specified in the Declaration as belonging to a free and independent state (making war, concluding alliances). The Constitution of 1787 gave the national government greater powers, including the right to tax, but more importantly gave it unquestionable authority over the people of the country, without any intermediation by the states. The idea that the states are in any way sovereign apart from their share in the union is simply bad history, an unwarranted elevation of provincial over cosmopolitan values.
Even more misguided, in Wills’s reckoning, is the notion that the framers of the Constitution designed the several branches of government to check each other. As good readers of John Locke, they knew that in a republican government the legislative branch is always supreme. The division of the government into legislative, executive, and judicial branches was accordingly intended, in Wills’s view, as a division of labor, not of powers. It was delegating to an executive and judiciary functions that the legislative branch could not perform adequately or efficiently by itself. The legislature remained supreme, able to override presidential vetoes and to create and define the judiciary. The idea that each branch was designed to frustrate the actions of the others, thus rendering government ineffective, was the opposite of what the framers intended. The ineffectiveness of the Articles of Confederation was what they set out to overcome.
Yes, but were they so bent on efficiency and effectiveness that they did not also think about using the separation of powers as a way of preventing government from overstepping its bounds? Here Wills is rejecting out of hand a view that he recognizes as having prevailed among many jurists, statesmen, and scholars for two centuries. He quotes Supreme Court Justice Louis Brandeis saying in 1926 that “the doctrine of the separation of powers was adopted by the Convention of 1787, not to promote efficiency but to preclude the exercise of arbitrary power.”2 Wills mounts a powerful argument to show that Brandeis was wrong, that the whole concept of the Constitution as creating a system of “checks and balances” among co-equal branches of government is a misinterpretation both of the Constitution and of the intentions of its Founders. He makes full use of contemporary complaints that the Constitution lacked an adequate separation of powers. And he cites James Madison’s admission of that deficiency and defense of it.
But here Wills overreaches himself. Only the degree of separation was at issue, not separation itself, and Madison’s defense, in the 47th and 48th Federalist, was aimed at showing that the Constitution as it stood would successfully restrain any branch of government from “passing the limits assigned to it.” Since in a republic the legislative branch was necessarily the most powerful, it was imperative to guard against “the encroachments which it makes on the co-ordinate departments” (emphasis added). The state constitutions had failed to pre-vent legislative usurpation of executive and judicial powers and thus subjected their citizens to legislative tyranny. The independence of the executive and judiciary under the Constitution would prevent that.
Garry Wills, "To Keep and Bear Arms," The New York Review, September 21, 1995; "To Keep and Bear Arms: An Exchange," The New York Review, November 16, 1995.↩
A view reiterated by Justice Antonin Scalia in The Wall Street Journal, September 7, 1999.↩