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—namely, 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,…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.
Madison’s colleague Alexander Hamilton, in another issue of The Federalist (no. 78), argued that the judiciary was designed as “an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority.” Thus Wills raises more doubts than he allays in his dismissal of judicial review: “If the Supreme Court declares a law that Congress has passed unconstitutional, it is not asserting judicial supremacy, but upholding a legislative act, that of the Constitution, whose creature the judges are.” The Constitution is the supreme law of the land, but is it the product of a legislative act? Does judicial review not restrain the legislature?
In this, and in a few other places, Wills badly overstates his case. The separation of powers was not just a legislative delegation of functions. It was what the words said, a separation of powers. Similarly, in making the valid argument that the several states did not enjoy sovereignty under the Articles of Confederation, he says a little too much by emphasizing that seven of the states in Congress could require the other six to go to war or commit them to a treaty. Actually the Articles required the consent of nine states to such important actions. And that requirement had just served in 1786 to prevent a possible breakup of the Union, when seven states, but not nine, agreed to a treaty with Spain in which the United States, in return for trading concessions abroad, would have given up a disputed right to navigate the Mississippi River to its mouth, then held by Spain. Virginians, including Madison, considered this an intolerable sacrifice of Southern and Western interests to Northern merchants. As a result of the fresh memory of that narrow escape, the Southern delegates at the Constitutional Convention insisted that ratification of any treaty should require not a simple majority of Congress, but a two-thirds majority of the Senate. Was that not intended as some kind of a check on government action?
Despite occasional overstatement, Wills proves that many of the constitutional and historical arguments which have accompanied nullification, secession, insurrection, vigilantism, and not incidentally recent initiatives by the conservative wing of the Republican Party rest on bad history and bad constitutional law. Wills is also generally successful in showing the allegiance of these groups to the set of values he attributes to them. The “withdrawers” and “disobeyers” do not fit the niche quite so well as the rest; but Wills persuades us that such different figures as Daniel Shays, John Calhoun, and Timothy McVeigh shared many, at least, of the same values—values that moved the people who joined Brook Farm in the 1830s, the Ku Klux Klan in the 1870s, and hippie communes in the 1970s.
It is instructive to find a resemblance among such disparate people, none of whom would have been happy to know of it. But the resemblance, as I think Wills would allow, tells us more about the capacity of American society for generating and containing opposition than it does about any of the groups themselves. It is significant that none of them, including those labeled “withdrawers,” chose to leave the country. Their values, as Wills points out, are “all good American values,” endemic to the society, constants amid all the changes in American life over two hundred years. The myths supporting them, despite refutation here or elsewhere, are likely to prove as persistent as the values themselves. And there is another myth, or, as I prefer to call it, a necessary fiction, that has been as essential to government as it has been to every American movement against government.
It is a fiction that peers at us from behind Wills’s interpretation of judicial review, in which he identifies the Constitution as legislation. The Constitution begins “We, the people,” and the whole fabric of American government rests on the assumption that the Constitution is not the act of a legislature. It is supposed to be a direct act of “the people,” in a way that legislation, despite passage by the people’s representatives, cannot be. And it is therefore superior to any legislative act, whether an act of Congress or of a state legislature.
Popular sovereignty, the idea that the power of government originates in an act of “the people,” is now the prevailing fiction in virtually every modern government. But it enjoys in America a plausibility and vitality that serve to authenticate challenges to government in the name of the people. There is no way that Americans can in fact act as a people except through government. But they are supposed to have done so in creating the Constitution, a supposition that the framers of the document took pains to encourage by submitting its ratification to state conventions that were nongovernmental, not to say antigovernmental. Their direct appeal to the people as superior to government echoed the appeal that challenged the British government thirteen years earlier. Challenging government comes easily when you have done it successfully so recently. The Constitutional Convention itself can be seen as a preemptive strike in the name of the American people against smaller collections of people in the several states and even smaller ones within the states. The followers of Daniel Shays in Massachusetts, the first of Wills’s antigovernmental examples, were only one of several groups in other states who it seemed, at the time, were threatening to dissolve the American people into a thousand smaller peoples, each with its own government and all of them easy prey for hungry foreign powers.
That the preemptive strike by the Constitutional Convention was successful is more surprising than the failure of the later challenges to it that Wills describes. As he points out, the Convention faced a major handicap in “the fact that the founding colonies had no central organ of expression” to whose authority a federal government could succeed. The colonists had been connected with one another only in their subjection to distant Britain. They faced another handicap in the absence of any hereditary ruling class. Colonial society was by no means classless. Everywhere “the better sort,” the rich, well-born, and educated, enjoyed a certain deference from the rest of the population, but no hereditary powers. It was the better sort who called and attended the Constitutional Convention and fought for the popular adoption of its work. And it was the better sort who expected to win elections to the new government. But the deference that James Madison or Thomas Jefferson, say, commanded by their unofficial social rank quickly lost its political significance in a society that began with a declaration that all men are created equal and a government that began by declaring itself the creature of the people.
The Constitutional Convention succeeded in establishing the superiority of the entire American people over any smaller collection of people, as it also established the superiority of that same people over the government. The antigovernmental groups and activities that Wills analyzes arose not only from their exaggeration of the values he characterizes them as having, but also from the founding premise of the government they were challenging. If government rested on the people’s approval, it was all too easy to presume that it could be ended or altered by any group that stopped approving. Defenders of government could counter, as they successfully did, that the approval once given could not be withdrawn. But the founding premise invited challenges to government.
The first ten amendments, adopted to appease the opposition to the Constitution, endorsed the invitation to challenge authority by prohibiting the federal government from interfering with the activities of people mounting a challenge. The federal government cannot prevent their assembling, circulating petitions, speaking, or publishing to advance their cause. It cannot disarm them, at least while they serve in a state militia. It cannot punish them for any crime without trial by a jury of their neighbors, who may see fit to indulge in jury nullification.
Wills minimizes these prohibitions by emphasizing the intent of their author, James Madison, to have them apply to the states as well as the federal government. But that intent is testimony to Madison’s belief in limiting all government. Madison had seized the initiative in drafting the amendments in order to forestall opponents of the Constitution from formulating restrictions that would hinder legitimate government activities, but he wanted all government to be restricted from meddling in beliefs and conduct beyond its proper sphere, including any aimed at changing its policies or structure. He may have thought such beliefs and conduct needed protection more from the states than from the federal government. But the failure of his attempt to apply the amendments to the states did not diminish his readiness to limit the federal government. He himself, as Wills shows later, indulged in an attempt to mobilize state governments to stop, indeed nullify, the federal government’s violation of the bounds he had succeeding in placing on it.
As it has turned out, popular and individual liberty and rights have been more endangered by state governments than by the federal government. Even at the time the government began, many states denied virtually every right to a large part of their populations and prevented the federal government, by a species of blackmail, from coming to the rescue of those they oppressed. They threatened to leave the union unless the Constitution forbade the federal government from interfering with slavery and in fact mounted the most serious anti-government challenge in our history by forming the Confederacy. It was the federal government that ultimately freed the slaves and required the application of the first ten amendments to the states as Madison had originally intended.
Wills rejoices in that development, as can we all. The civil rights movement could not have succeeded as far as it has without federal nullification of state laws. And by now, as Wills points out, “the modern media of communication make the federal government more easily scrutinized than local government.” It is time to abandon provincial partiality and let the federal government do its job.
That, in the end, is the lesson that Wills offers us in showing not only the futility but the wrongheadedness of most movements directed against the federal government. They were wrong in their views of history and wrong in thinking that the values they called on, if followed at the expense of their counterparts, could make for a better life, greater freedom, better anything. Martin Luther King’s constructive disobedience was an exception. It brought beneficial results to society and government. Other disobeyers and withdrawers, whether individuals like Thoreau and Henry Adams or the idealistic communities of the 1830s and 1960s, did nothing for anyone else and not much for themselves. The government they disdained, some as a necessary evil, others as an unnecessary one, can always be, Wills insists, a necessary good. And so it can. But if eternal vigilance is the price of liberty, the existence of “the people” needs to be sustained in the minds of real people, who will remind their government from time to time of “the people”‘s existence, however imaginary that existence may in fact be, and however wrongheaded they may be in their understanding of history, in their immediate antigovernmental goals, or in their claim to speak more authentically for the people than the government does.
A Necessary Evil is a tract for the times. Wills tells us that he began it in 1994, prompted by the off-year election of a Republican majority in Congress insanely dedicated to abolishing many of the palpable benefits of government. The book is not directed toward explicating the complex specific circumstances that generated or justified antigovernmental groups in different times and places. It is, rather, a demonstration of how wrong they all were in their magnification of a particular set of values at the expense of equally important ones. It is a plea for common sense in allowing government to do good without the paranoid obstructions of the misguided or malevolent. The indictment is a true bill. But we still need the kind of people it indicts, if only to remind the government of its subordination to the mythical body that created it.
November 18, 1999