In response to:
How Democratic Is the Constitution from the February 23, 2006 issue
How Democratic Is the Constitution from the February 23, 2006 issue
To the Editors:
In his review of my book, Righteous Anger at the Wicked States: The Meaning of the Founders’ Constitution [NYR, February 23], Gordon Wood accuses me of claiming falsely that “it is common to see the Constitution described as written to limit the federal government and to protect states rights.” “This is news to me,” Wood wrote, “and not at all credible. I know of no interpretation of the origins of the Constitution that has ever claimed such a thing.”
In legal circles, the Constitution is commonly interpreted as written to rein in the power of the federal government. The Supreme Court has recently been creating new doctrines restricting the federal government and enhancing state power, based on its understanding of the “original intent” of the Constitution. There is a “relatively stable majority [of the Court] committed to enforcing limits on the federal power and to protecting the integrity of the states,” says Professor Richard Fallon of Harvard. The Court has used its new historicism to deny Congress the power to protect rape victims, to ask sheriffs to check arrest records for gun control, or to ban guns from schools.
Among legal academics, the Federalist Society is quite strongly committed to checking federal power. Professor Wood has a number of former colleagues on the Northwestern Law School faculty who are committed to the new Anti-Federalism, as are a number of my colleagues.
States’ rights interpretations of the Constitution have also been important historically. Both Jefferson and Calhoun offered interpretations of the Constitution that left all effective power in the states. Professor Wood and I might agree that anti-national interpretations of the Constitution are unsound. But they exist.
Righteous Anger rejected the argument, important to Wood, that the Constitution was written primarily to suppress paper money. The Constitution does prohibit state paper money. The failure of the Continental dollar had given paper money a bad smell. The Anti-Federalists, however, did not contest the ban. In New York and Virginia, the Anti-Federalists objected to almost every sentence as the Constitution was discussed line by line, but not to the ban on paper money. “I am at peace with the subject,” said Patrick Henry.
More generally, the driving first purpose of the Constitution was to give the federal government the power to tax so it could make payments on the war debts and restore the public credit. The federal government would need to borrow again in the next, inevitable war. The Constitution cannot be understood as written by creditors trying to collect their debts, but by debtors who were trying to restore their credit rating.
Wood has also described the Constitution as “an aristocratic document designed to check the democratic tendencies of the period.” Neither side was consistently democratic by the standards of our time, but the Anti-Federalists argued that the Constitution was too democratic. Federal Farmer, perhaps the best of the Anti-Federalist essayists, expressed his shock that the Constitution would allow federal officeholders to be “Christians, Pagans, Mahometans, or Jews; that they are of any colour, rich or poor, convict or not.” To quote Righteous Anger,
It was Anti-Federalist Patrick Henry who said that Jews, Mahometans, Deists, and pagans professed and practiced such abominations as rendered their persuasions unworthy the sanction of legal support. It was the Anti-Federalists who denounced our Constitution because it allowed office holders who were “Quakers, Mahometans, Deists, abominable wretches, Negroes, Beggars and lastly Jews.”
Wood’s title asked the question “How democratic is the Constitution?” and the quick answer is “more democratic than the opposition.”
Calvin H. Johnson
Andrews & Kurth Centennial Professor of Law
University of Texas School of Law
Professor Johnson has confused and conflated two very different endeavors: that of historical reconstruction of the past with constitutional interpretation in the present. No doubt many law professors and jurists argue quite intelligibly that the Constitution we have today is much stronger and more nationalistic than the one that was created in 1787. But to jump from this interpretative position to saying that the Constitution in 1787 was meant “to limit the federal government and protect states rights” is a leap that no historian would make. I don’t believe that even the Federalist Society law professors he mentions would make that claim. As I understand their position, they believe that over the past two hundred years the federal government has acquired more power vis-à-vis the states and the people than it was meant to have in 1787. It doesn’t follow from that interpretive position that the “original intent” of the Constitution was “to limit the federal government and protect states rights.” Certainly no one in the 1780s ever thought that that was what the Constitution was intended to do, and it is the people of the 1780s, not the people of 2006, that the historian is interested in.
I have never held that the Constitution was written “primarily to suppress paper money.” I have argued that James Madison, who drafted the Virginia plan that became the working model for the Convention, was preoccupied with the factious majorities in the state legislatures that were violating the rights of minorities, in particular, creditors, and designed the Constitution to prevent such abuses in the future. This is why he originally intended the Congress to have a veto power over all state laws, an impractical provision that the Convention eventually rejected; it put in its place Article I, Section 10, which severely limited the states’ financial authority, including the power to issue paper currency.
Of course, there were other men and other motives behind the creation of the Constitution, including giving the national government the power to tax, which it did not have under the Articles of Confederation. Taxation, however, was not a contentious issue by 1787. Even most of the later opponents of the Constitution, or the Anti-Federalists, conceded that the Confederation Congress ought to have some power to tax, which is why they originally accepted the meeting in Philadelphia with remarkable equanimity: they thought the Convention would only reform the Articles of Confederation by adding taxing and trade regulatory powers; they did not expect the Articles to be totally scrapped.
To contend, as Johnson does, that the Anti-Federalists were less democratic than the Federalists because they were opposed to the lack of religious qualifications for officeholders is to impose a modern version of democracy on that very different, distant past. The Anti-Federalists were searching for any argument that could discredit the Constitution, and found in the lack of religious requirements for officeholders a position that might win some votes. To suggest that that position, which is one of the ways we today define democracy, meant that the Anti-Federalists were undemocratic is to commit a gross anachronism, the cardinal sin of historians.
The Anti-Federalists certainly believed that the Constitution was undemocratic and indeed aristocratic in its structure, and the evidence is overwhelming that their suspicions were correct. John Dickinson had shrewdly warned his colleagues in the Philadelphia Convention that “when this plan goes forth, it will be attacked by popular leaders, aristocracy will be the watchword; the Shibboleth among its adversaries.” Which was why the Federalists in the ratification debates had to emphasize over and over how popular and democratic the new system was. The Anti-Federalists knew better. They knew full well that granting crucial decision-making powers to a House of Representatives that had only sixty-five congressmen to represent four million Americans at the expense of the thousand or more representatives in the state legislatures was a severe limitation on democracy as the eighteenth century understood it, and they said so repeatedly in the debates over the Constitution. Although we today define democracy very permissively, with minority rights often trumping majority rule, many Americans have always sensed that elevating the decision-making authority of government to ever smaller numbers of distantly removed individuals can’t easily be described as the furthering of democracy.