American Heroes (31 page)

Sidney here takes pains to distinguish the representative's obligations to the whole nation from his obligations to the electors who choose him as their agent. Yet he relies on the electors to remove him if he betrays his trust. What trust? The trust reposed in him by Kent or Sussex, by Lewis or Maidstone? No, the trust reposed in him by the whole body of the nation, which cannot be assembled for removing him—and by the same token was never assembled for entrusting him in the first place. If he betrays the trust so mysteriously placed in him, he is supposed to be subject to scorn, infamy, and hatred. But whose? Is it not likely that the man who wins scorn, infamy, and hatred from the rest of the nation may win praise, fame, and love in Kent or Sussex, in Lewis or Maidstone? And conversely the man who is faithful to his trust for the nation may win scorn, infamy, and hatred in Kent or Sussex, Lewis or Maidstone.

Sidney was not troubled by this contingency and would probably have responded to it, as he did to other objections, that while a representative assembly was not infallible, nevertheless “a house of commons composed of those who are best esteemed by their neighbours in all the towns and counties of England” would at least be less “subject to error or corruption than such a man, woman, or child as happens to be next in blood to the last king.” In the worst possible case, in other words, a group of men popularly chosen, however strong their local attachments and whatever their weaknesses, are a safer repository of power than a hereditary king.

Because representative government rests on conflicting fictions, or on a single fiction with glaring internal contradictions, it has often required such left-handed defenses. It is a
pis aller
, better than the alternatives. But Sidney's ignoring of the possible conflict between local and national interests is a reminder that representative government, in order to work, in order to mute the conflict within the fiction, requires that the different communities represented be able and willing most of the time and on most issues to perceive their own local interests as being involved in, if not identical with, the interests of the larger society.

That perception was more easily sustained while the authority of government was derived from the king than when the representative body professed to derive it from the people at large. When authority came from the king, government was palpably something other, a force against which representatives protected their constituents or to whose actions they effectively bound themselves and their constituents. Representatives, like those they represented, could be thought of as acted upon rather than as actors.

Moreover, that authority itself was less likely to be swayed by any combination of local interests. A king might become a tyrant, pursuing his own interests rather than those of his subjects. But he was not as likely as the majority in a representative assembly to place the interests of particular parts of his realm above the interests of others or of the whole. Because the monarch was less likely to be geographically partial, there was less need than in popular governments for every community to have its own representatives to protect its special interests against those of other communities. Protection was needed, rather, against the more general danger of arbitrary government by the monarch, and this could be furnished by one set of representative subjects as effectively as by another.

Before representatives took over full command of government, there was accordingly little agitation by excluded communities for inclusion in the representative body. The great expansion of representation in Parliament in the sixteenth century came not because of demands by formerly excluded communities but because the rising and expanding gentry wanted seats in the House of Commons. Many of Parliament's so-called rotten boroughs were rotten at their creation, incorporated only to give some aspiring gentleman a seat. Similarly the expansion of the electorate in the seventeenth century was not the product of a demand by the unenfranchised. It was in part an accident of inflation, which reduced the value of the property qualification for voting (established in 1430) and in part the result of contests for seats, in which an ambitious candidate brought unqualified voters to the polls and then succeeded in having their votes legitimized by Parliament. In other words, while authority was derived from the king, the expansion both of the suffrage and of representation in Parliament came from the top down, through the desire of members of an elite class for a share in the king's authority. In the colonies, where the king's authority was diluted by distance and representatives were correspondingly more powerful (in fact if not in theory), there was somewhat more concern about extending representation equitably. But even here, in Pennsylvania and in the southern colonies, where representation was most inequitable, there seems to have been little concern about the matter until shortly before the Revolution.

When the king's authority was removed, as it was in England during the Commonwealth period (1649–60) and in America after 1776, the conflict of local interests with the sovereignty of the people at large became much more evident. In a Parliament where representatives chosen by a handful of voters had total authority over communities that could not vote at all, there were immediate demands for a more rational and equitable way of exercising the newfound sovereignty of the people. And a rational plan of parliamentary representation in England was in fact adopted in the Commonwealth period, only to be abandoned for nearly another two centuries after the restoration of the monarchy in 1660. And in the independent American states after 1776 the apportionment of representation became a major concern, because particular communities and regions feared that without adequate representation they would not be adequately protected from their sovereign compatriots.

In this transformation, government remained, as it had to, something other, something external to the local community; but that something was no longer a king. It was now the representative body itself, or at least the representatives of other localities, acting rather than acted upon, exercising an authority derived from a people who could not exercise it themselves. With the authority of representatives thus magnified, it became all the more important to each community that its particular representatives retain a local identity and outlook and all the more important to every community to have representatives. Thus, just when representatives assumed larger responsibilities and larger authority, they were brought under greater local pressures to retain their local, subject character.

The Commonwealth experiment in England was too brief and inconclusive to reveal fully the strains that popular sovereignty placed on the fiction of representation. Even so, James Harrington, the most astute, if the most tedious, political philosopher of the period, sensed the problem when he attempted to divide the functions of representation between two bodies, both elected by local constituencies. Harrington envisaged a small senate or upper house, which would have the sole power to formulate policy for the nation by initiating all legislation. A much larger lower house would then pass upon the senate's proposals, accepting or rejecting but with no power to alter or amend or to initiate legislation by itself. In effect, the senate would exercise the national, authoritarian function of representation—the powers that had once emanated from the king—while the lower house would exhibit the local, subject character.

Harrington's proposal was, of course, never tried in England, but it was attempted in the Carolinas and in Pennsylvania. It failed for the foreseeable reason that the lower house was in no case content with half of the representative functions. The conflict therefore remained, in the colonies as in England. In England it was successfully muted until the great reforms of the nineteenth century. And in the colonies it was easily contained while authority continued to derive from the king. But the American Revolution brought it to an acute stage. As soon as the colonies substituted the authority of the people for what was left of the king's authority, they had to contend with the danger that locally oriented representatives, in exercising the new authority, would favor one region over another or would sacrifice large-scale needs to parochial prejudice. And the danger was magnified by the nature of the quarrel with England that had preceded independence.

III

The Americans' quarrel with England began, as everyone knows, with the attempt of Parliament to tax the colonists. When the colonists insisted that they could not be taxed by a body in which they were not represented, England maintained that they
were
represented—represented by men whom they had never seen or heard of. People from Massachusetts to Georgia were represented by men chosen for them by a handful of voters in the boroughs and counties of England.

This was carrying the fiction of representation too far from the facts, destroying altogether its local character. The fiction collapsed, and with its collapse the local character of representation emerged as a cardinal American principle. In resolutions, declarations, and petitions the colonists reiterated their conviction that the people of a particular locality could be represented only by someone whom they themselves had elected and empowered. By the time the colonial assemblies threw off English control in 1776, they were so firmly committed to this principle that any attempt to temper it appeared as a betrayal of the Revolution.

To be sure, the several colonial assemblies had to act together on a continental scale in order to make their bid for independence. But the Continental Congress in which they joined to do it was not a representative assembly. Since most of the members were chosen by the state legislatures, both before and after the Articles of Confederation of 1781, the Congress was an assembly, not of representatives, but of representatives of representatives. Since representatives could not properly transfer their powers, the Congress did not and could not have the powers that only popular election could confer. The only true representatives in America sat in the state assemblies.

And there they displayed their local attachments all too clearly. In most states, after independence, the number of representatives in the assembly was increased and the size of constituencies reduced, thus weakening still further the orientation and obligation of each representative to the larger whole. As the number of a representative's constituents fell, representation became less fictional. Government moved closer to the people, but in doing so became less capable of exercising authority effectively, consistently, and sensibly for a whole colony, let alone a whole country.

Those who rescued American representative government from this predicament by means of the Constitution of 1787 restored the fictional purpose of representation—namely, to persuade the many to accept the government of the few. And they did it by an additional fiction. They invented the American people, a fictional body comprising all the people of the whole nation, endowed with sovereign powers superior to those of the people of any state or of all the states.

It was not one of those inventions for which the world was unprepared. The Revolution had created a fund of national feeling and a whole class of people who had committed their lives and fortunes to a common cause that seemed to be dissolving in victory. James Madison and his high Federalist friends at the Philadelphia convention drew on that feeling to gain credence for their new fiction—an American people capable of empowering an American national government.

Earlier efforts to correct the defects of the state governments had centered on giving greater powers to the upper houses of the bicameral legislatures, or to the executives, of the several states. But these had proved ineffective. Representative assemblies still dominated the state governments and retained their ascendancy by virtue of their perceived closeness to their local constituents. It was the Federalists' aim to give to a national government, led by a select few, a claim to higher representative power than the mobbish state assemblies possessed. In order to reach their goal, they had to persuade Americans to accept representation on a scale hitherto unknown. The representative assembly of the national government, directly elected by popular votes, would be smaller in size than most of the state assemblies, 65 men to represent nearly 4 million. (Georgia, with a population of 82,000, had an assembly of 84 representatives; Connecticut, with a population of 238,000, had an assembly of 171.) The national representatives would have such large constituencies that they would lose much of their local character—and would gain, it was hoped, a larger vision along with larger power. With the authority of the newly sovereign American people behind them, they would be able to overcome the shortsightedness of the state governments.

It was touch-and-go whether Americans would accept the new configurations of fictions. Antifederalists cried out that the new representation was no representation at all, that national representatives would be too remote from their constituents, no better than the specious representatives the colonists had been told they had in Parliament. But the Antifederalists lost. Americans suspended their disbelief. The idea of representation recovered the fictional qualities it had been losing in the state governments, and the few were thereby enabled to govern the many without recourse to violence. The fictions of popular sovereignty embodied in the federal Constitution may have strained credulity, but they did not break it. Madison's invention worked. It still does.

—1983

T
HE
U
NITED
S
TATES
C
ONSTITUTION
has proved to be the most durable frame of government possessed by any major power in the world today, and it has furnished more reliable safeguards for human liberty than most other governments. The Constitution has been a success. All the more reason, then, for intellectual generosity toward those who feared that it would be a disaster and who helped to add to it some of the safeguards that have made it a success. The constitutional historian Herbert J. Storing admired the Constitution, but was so impressed with the quality of the initial opposition to it that he collected for republication the newspaper articles and pamphlets in which the so-called Antifederalists urged its rejection and demanded amendments.

What the collection makes plain is that the 1780s were a “critical period,” perhaps (excluding the 1860s)
the
critical period of American history. The central issue was whether Americans would be one people with a national government or several peoples united in a limp federation that was steadily losing the powers it had exercised in the years before it was acknowledged to have any power at all (the Revolutionary War was nearly won before the Articles of Confederation were agreed to in 1781). It was not, however, simply a question of strengthening or creating a national government. The Antifederalists were prepared to strengthen the existing federation. What they feared was the annihilation of the state governments and of the popular liberties that they thought the state governments could protect and that the proposed national government would not or could not protect.

What the Antifederalists wanted was a union of states rather than of people and a simple, minimal central government with wide popular participation and safeguards for traditional popular rights. But in order to appreciate the Antifederalist position, it may here be worth recalling that what the Antifederalists were for was not entirely synonymous with what the Federalists were against. And what the Federalists were against animated both sides.

Since the Constitution was the product of compromises that blunted the purpose of its principal authors, what the Federalists were against appears more clearly in their writings and speeches than in the provisions of the Constitution itself. The architect of the Constitution was James Madison, and what moved Madison and his supporters at the Convention was not merely the weakness of the national federation but the iniquity of the state governments. Though he proposed a national government in part as an end in itself, as the political expression and guardian of national identity, he also proposed it and designed it as a means of curbing the vicious propensities of the states. If he and his friends had had their way, the national government would have had an absolute veto over all state laws.

What bothered the Federalists most about the state governments was their failure to protect the rights of property, and in particular the rights of creditors. After winning a war against British threats to American property through taxation, the states themselves seemed bent on destroying the security of American property through laws that made depreciated paper money a legal tender or that declared a moratorium on collection of debts. And state governments that held firm against these destructive measures were defied by mobs that closed the courts in order to stop collection of debts. The Federalists wanted a national government that would be strong enough to put down such insurrections and to see that state legislatures did not yield to any other pressures inimical to property rights.

Madison, who not only designed the Constitution but wrote the classic defense of it in the
Federalist Papers
, was far less pleased with the finished document than he indicated in those essays. Writing to Jefferson on September 6, 1787, just before the Convention broke up, he thought that the Constitution, if adopted, would “neither effectually answer its national object nor prevent the local mischiefs which every where excite disgusts against the state governments.” In a later letter, when the secrecy imposed by the Convention was lifted, he explained why: because the Convention had rejected his pleas for a veto power over state laws, the national government would not be able to prevent the local mischiefs. And he even went on to give his opinion that “the evils issuing from these sources [the state governments] contributed more to that uneasiness which produced the Convention, and prepared the public mind for a general reform, than those [evils] which accrued to our national character and interest from the inadequacy of the Confederation to its immediate objects.” If Madison's opinion was correct, curbing the states was more important in the minds of Americans (as it seems to have been in his) than strengthening the union.

The principal evils that the Federalists (and many other Americans) were against, then, lay in the states and the state governments. Federalists were unable—and some would have been unwilling—to do away with the state governments altogether. But they wanted a central government strong enough to interdict state actions. Madison did not think that the Constitution would provide such a government. Neither did Hamilton. But they recognized that the Constitution would give them more leverage against the states than they had had in a Continental Congress with no coercive powers at all. They were willing to settle for what they could get.

In the light of what the Federalists had aimed at (which despite the secrecy of the Convention proceedings was widely known or suspected), the reaction of the Antifederalists will appear somewhat less paranoid than it does when one approaches their writings cold. They thought that the national government proposed in the Constitution would destroy the state governments and that that was the intention of the framers, as indeed it may have been of some. Madison did not get his veto over the states, but to the Antifederalists it looked as though he had got far too close to it. The Constitution made national laws and national treaties the supreme law of the land. Did that not amount to an overriding of state laws? The Constitution forbade the states to issue paper money or to make anything but gold and silver a legal tender or to pass laws impairing the obligation of contracts, but it did not forbid these things to the national government. Nor did it reserve to either the states or the people the powers not expressly delegated to the national government. There was no general bill of rights specifying what the national government could not do. In the absence of such a limitation and under cover of its constitutional authorization to provide for the general welfare and to do whatever was necessary and proper to carry out its functions, the national government would be able to do almost anything. And whatever it did would be the supreme law of the land. In the face of this leviathan, the state governments would be helpless. They would soon wither away, and liberty would wither with them.

Such fears were not groundless. And they were aggravated by the very widely publicized speech given in Pennsylvania by James Wilson, Madison's chief ally at the Convention. Wilson argued that the Constitution needed no bill of rights, because it specified the things that the national government could do, and thereby excluded the doing of anything unspecified. In every state the Antifederalists rose to demolish Wilson's argument by reversing it. The Constitution specifically prohibited some things to the national government, such as bills of attainder and ex post facto laws, and thereby (to follow Wilson's reasoning) permitted the doing of anything unspecified. By inference, the Constitution granted to the national government all powers not specifically excluded.

By their insistence on a bill of rights to limit the national government, the Antifederalists were able to add to the Constitution, in the first ten amendments, much of what they were for. But they thereby added little that the Federalists were against and nothing that removed their own deepest fears. Madison himself drafted the amendments. It was almost as though the Federalists had deliberately omitted a bill of rights in order to be able to disarm their opponents with this concession (there is no evidence that such a strategy was intended). What no bill of rights could answer was the fear of the most thoughtful Antifederalists that a national government by its very nature, by virtue of the size of the area it governed, would be incapable of recognizing, or responding to, the needs of the people it governed. In their ruminations on this danger, the Antifederalists went to the heart of the problems inherent in representative government, and it is here that their writings deserve closer attention.

It was a truism in eighteenth-century political thinking that republican government could not be extended over a large territory. Montesquieu, the political philosopher most frequently cited in support of this proposition, had argued that republican government thus extended would fall prey to factions and become aristocratic or oligarchic. If it escaped such a transformation, it would break up into a series of smaller republics. The only way to have republican government in a large territory was through a federation of such small republics, united only for dealing with countries outside the federation. That, of course, was what the United States already had under the Articles of Confederation.

As is well known, Madison was prepared to cope with Montesquieu's argument. Taking his cue from a casual remark of David Hume's, Madison turned the argument on its head, to show that republican government was better suited to a large territory than a small one. According to Madison, a large territory had two advantages over a small one: it would contain a larger number of able men from whom the inhabitants could select their governors, and it would contain such a variety of different and opposing interests (factions) so widely spaced that no combination of them would be able to agree on measures that might oppress the rest.

Madison's argument is perhaps the most significant contribution to political thought by any of the founding fathers, and it is the foundation of subsequent pluralist political thought. But it made small impression on the Antifederalists, who indeed took surprisingly little notice of it. While they occasionally cited Montesquieu in their arguments against the Constitution, they relied much more heavily on the long-cherished American conception of representative government that prompted and sustained colonial resistance to British taxation, and finally directed the formation of their new state governments. It was a conception that could not be squared with Madison's.

Representative government has always embodied a paradox, not to say a contradiction. Representatives were originally the agents of particular communities, empowered to meet with a superior governing power in order to convey the assent or dissent of their constituents to new laws and taxes imposed from above. Representatives were more the attorneys of other subjects than a part of the governing power. As representatives gradually assumed or usurped the powers of government (a process not yet complete in either England or America before 1776), they had to think and act as rulers, not only for the communities that chose them but for the whole society of which their communities were a part. Yet they remained the agents of their constituents; they had to think and act both as subjects in a local community and as rulers over a much larger society. The history of representative government is the history of the conflict between these two functions, neither of which can exclude the other.

Americans in 1787 were still close to the original representative function. A representative in American experience had almost always been someone who was familiar with the needs of his community, someone the people in it knew and trusted and sent off to the government to look after their interests. And a representative assembly was supposed to be a mirror of the various communities that participated in it. It was a substitute for an assemblage of the whole people. It should therefore be, as John Adams said, “in miniature, an exact portrait of the people at large. It should think, feel, reason, and act like them.” When the British Parliament began taxing the colonies in 1764, Americans had accordingly complained not only that they
were
not represented in Parliament but that they
could
not be. Distance forbade it. They could not be represented, because a representative sent to London would be out of touch with his constituents and therefore unable properly to convey their views and look after their interests. He would not be able to think, feel, and act like them at so great a distance.

England actually had no intention of allowing Americans to send representatives (it was suggested but not seriously considered). Instead, England responded to the American charge by affirming in absolute terms the other aspect of representation, emphasizing the function of representatives as governors, as a kind of elective aristocracy. Americans, it was said, might not actually vote for members of the House of Commons, but they were nevertheless represented there in the same way as most other British subjects, most of whom could not vote: they were “virtually” represented. Virtual representation meant that every member was discharged from local responsibilities and charged with looking after the running of the whole society. He represented everybody. To Americans this was so ridiculous as to be scarcely worth an answer. One might as well say that Parliament represented the whole world (a proposition that may not have seemed wholly absurd to Englishmen of that day). And Americans declared in no uncertain terms that the only persons who represented them were those whom they had elected to their own representative assemblies.

The quarrel with England thus reinforced the Americans' emphasis on the local character of representation, the representative's attachment to the community that chose him. It was representatives schooled in this traditional concept who assumed nearly all powers of government in America, once the break with England was made. Fresh from proclaiming local autonomy against the superintending power of king, Parliament, royal governors, and governor's councils, they had now themselves to exercise or direct whatever overall superintending powers there might be. To the Continental Congress (which was not popularly elected and thus not a representative assembly), they would allow no coercive powers, and in the state governments they subordinated all other branches—governors, judiciary, and upper houses—to themselves in their representative assemblies. As a result, even at the state level, larger, long-term concerns were sacrificed, and at the national level the Continental Congress lost the grudging support given it under pressure of war. Hence the local mischiefs which troubled Madison and his friends so much, and which even the Antifederalists acknowledged.