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The Meaning of the Public Good in the Rhetoric of Ratification By Matthew J. Peterson Claremont Graduate University 2013 © Copyright Matthew J. Peterson, 2013 All rights reserved.

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Page 1: The Public Good in the Rhetoric of Ratification

The Meaning of the Public Good in the

Rhetoric of Ratification

By Matthew J. Peterson

Claremont Graduate University

2013

© Copyright Matthew J. Peterson, 2013 All rights reserved.

Page 2: The Public Good in the Rhetoric of Ratification

APPROVAL OF THE REVIEW COMMITTEE This dissertation has been duly read, reviewed, and critiqued by the Committee listed below, which hereby approves the manuscript of Matthew J. Peterson as fulfilling the scope and quality requirements for meriting the degree of Doctor of Philosophy in Political Science.

Dr. Joseph M. Bessette, Chair Alice Tweed Tuohy Professor of Govt. and Ethics

Claremont McKenna College, Government Department

Dr. Charles Kesler, Committee Member Dengler-Dykema Distinguished Professor of Government Claremont McKenna College, Government Department

Dr. Ralph Rossum, Committee Member Salvatori Professor of Political Philosophy & American Constitutionalism

Claremont McKenna College, Government Department

Dr. Michael Uhlmann, Committee Member Professor of Government, School of Politics and Economics

Department of Politics and Policy, Claremont Graduate University

Page 3: The Public Good in the Rhetoric of Ratification

Abstract

The Meaning of the Public Good in the Rhetoric of Ratification

Matthew J. Peterson

Claremont Graduate University, 2013

The dissertation examines the meaning of the public or common good considered as an

end or purpose of government in the public debate over the adoption of the U.S.

Constitution. Federalists and Anti-Federalists assert that the purpose of government is

to both promote the public good and protect individual rights. What did they mean by

the “public good” and related phrases? An extended commentary and textual analysis

of the published writings of five Federalists (John Dickinson, Oliver Ellsworth, Noah

Webster, Tench Coxe, and James Wilson) and five Anti-Federalists (Agrippa, Centinel,

Federal Farmer, Impartial Examiner,and Brutus), the dissertation examines the way in

which the notion of the public good played a significant part within the larger themes of

federalism, representation, licentiousness, and union during the ratification period.

Neither side’s understanding of the protection of individual rights as the purpose of

government completely forecloses the notion of the promotion of the public good. The

uniquely federal nature of the Constitution obscures the deeper understanding of the

public good of Anti-Federalists and Federalists alike, but both sides—especially the

Federalists—provide plenty of evidence. The Anti-Federalist view of representation

emphasizes that the public good must be truly public without making clear how the

public good differs from majority will; the Federalists emphasize the public good must

be truly good, the product of sound deliberation. The Federalist argument includes the

explicit claim that liberty is not license, but tied to a common notion of virtue, or what is

truly good for all. The Federalists argue that there is a public good for all the states

combined and thus the federal government must have supreme power over matters

relating to commerce—and commerce is spoken of as intrinsically connected to morality

and virtue—for the sake of this national public good.

Although the Federalist notion of the public good is limited in scope, especially in

practice if not in principle at the federal level, remaining in some way open as to the

final purpose of human beings or the ultimate questions about what is truly good, it is

nonetheless distinct from an interdependent collection of private goods.

Page 4: The Public Good in the Rhetoric of Ratification

Dedication

A dedication is justly owed to my wife, Mary, who made it come to be, and to our

Madeleine, Tiernan, and Gabriel – may the guild stamp herein granted be worth more

than its weight in loans.

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v

Acknowledgements

Above all, I give warm thanks to my parents, Bob and Colleen Peterson, without whom

nothing, and to my wife’s parents, John and Celeste Gisla, who made it possible. And

to my grandmother, Virginia Peterson, who has supported me for many years in many

ways.

Without my time at Thomas Aquinas College and the works of Charles De Koninck

(http://charlesdekoninck.com), I would never have begun to think seriously about the

common good; without Claremont Graduate University I would never begun to think

seriously about how the common good relates to the reality of political life, nor

examined how it relates to American political thought in particular. Richard Ferrier of

Thomas Aquinas College was the link between the two, and remains so.

As to the content below, in various ways too deep and too broad to mention, each of my

committee members have passed on, engendered, and influenced and supported

anything that might happen to be of value below, to say nothing of shepherding an

easily distracted student through graduate school and making sure he had bread on the

table—something that Michael Uhlmann does not get paid extra for at CGU, no doubt,

although he should.

Florence Adams of the Rose Institute has also helped make this happen, in many ways.

I am also grateful for the conversations I have had with Adam Scrupski about the

nature of the common good.

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Table of Contents Acknowledgements .................................................................................................................................... v

Chapter 1: What is the Meaning of the Public Good? ................................................................................. 1

Terms for the Public Good ...................................................................................................................... 7

What Is the Public Good? ...................................................................................................................... 13

Authors Considered .............................................................................................................................. 16

Anti-Federalists ................................................................................................................................. 17

Federalists ......................................................................................................................................... 22

Outline of the Dissertation.................................................................................................................... 26

Chapter 2: Liberalism and the Public Good ............................................................................................... 28

Introduction .......................................................................................................................................... 28

Before the Consensus ........................................................................................................................... 31

Consensus: Diamond and Kenyon ......................................................................................................... 34

Consensus Developed ........................................................................................................................... 42

Herbert Storing ................................................................................................................................. 42

The Problem.......................................................................................................................................... 44

Michael Zuckert ................................................................................................................................ 46

Thomas Pangle .................................................................................................................................. 47

Paul Rahe .......................................................................................................................................... 53

Conclusion ............................................................................................................................................ 55

Chapter 3: Republicanism and the Public Good ........................................................................................ 59

Introduction .......................................................................................................................................... 59

Bernard Bailyn and Gordon Wood ........................................................................................................ 60

Wood’s Method Examined ................................................................................................................... 67

Liberalism Reconsidered ....................................................................................................................... 77

Conclusion ............................................................................................................................................ 80

Chapter 4: Origins and Ends; Individual Rights and the Public Good ........................................................ 81

Introduction .......................................................................................................................................... 81

Anti-Federalists ..................................................................................................................................... 82

Agrippa.............................................................................................................................................. 82

Impartial Examiner ............................................................................................................................ 87

Brutus ............................................................................................................................................... 93

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Federal Farmer .................................................................................................................................. 99

Centinel ........................................................................................................................................... 102

Federalists ........................................................................................................................................... 107

Oliver Ellsworth ............................................................................................................................... 107

Noah Webster ................................................................................................................................. 110

James Wilson .................................................................................................................................. 113

John Dickinson ................................................................................................................................ 118

Tench Coxe ...................................................................................................................................... 121

Conclusion .......................................................................................................................................... 123

Chapter 5: Representation and the Anti-Federalists ............................................................................... 125

Introduction: Democracy and Representation .................................................................................... 125

The Anti-Federalists, Representation, and the Public Good ............................................................... 130

Brutus ............................................................................................................................................. 130

Centinel ........................................................................................................................................... 145

Federal Farmer ................................................................................................................................ 156

Conclusion .......................................................................................................................................... 166

Chapter 6: Representation and the Federalists ...................................................................................... 168

Introduction: Democracy and Representation .................................................................................... 168

Noah Webster ..................................................................................................................................... 170

Tench Coxe.......................................................................................................................................... 186

Oliver Ellsworth ................................................................................................................................... 190

James Wilson ...................................................................................................................................... 192

Conclusion .......................................................................................................................................... 199

Chapter 7: Virtue and Licentiousness ..................................................................................................... 201

Introduction: Licentiousness and Ratification ..................................................................................... 201

License, Licentious, Licentiousness ..................................................................................................... 203

Anti-Federalists ................................................................................................................................... 205

Liberty & Licentiousness ................................................................................................................. 205

Commerce & The Anti-Federalists .................................................................................................. 209

Federalists ........................................................................................................................................... 215

Virtue of the People ........................................................................................................................ 215

Liberty & Licentiousness ................................................................................................................. 220

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Commerce & the Federalists ........................................................................................................... 234

Conclusion .......................................................................................................................................... 241

Chapter 8 Federalism .............................................................................................................................. 244

Introduction ........................................................................................................................................ 244

Anti-Federalists ................................................................................................................................... 250

Impartial Examiner .......................................................................................................................... 251

Federal Farmer ................................................................................................................................ 253

Brutus ............................................................................................................................................. 258

Centinel ........................................................................................................................................... 265

Federalists ........................................................................................................................................... 266

Tench Coxe ...................................................................................................................................... 266

James Wilson .................................................................................................................................. 268

Noah Webster ................................................................................................................................. 272

Conclusion .......................................................................................................................................... 276

Chapter Nine: Union ............................................................................................................................... 280

Introduction ........................................................................................................................................ 280

Tench Coxe.......................................................................................................................................... 283

Noah Webster ..................................................................................................................................... 284

Oliver Ellsworth ................................................................................................................................... 285

John Dickinson .................................................................................................................................... 288

James Wilson ...................................................................................................................................... 298

Conclusion .......................................................................................................................................... 307

Chapter Ten: Anti-Federalists, Federalists, and the Public Good ............................................................ 311

Anti-Federalists ................................................................................................................................... 311

Federalists ........................................................................................................................................... 326

Virtue, Constitutional Design, and Representation ......................................................................... 333

Licentiousness and Commerce ........................................................................................................ 337

Union .............................................................................................................................................. 341

The Public Good .................................................................................................................................. 344

Selected Bibliography ............................................................................................................................. 354

Endnotes ................................................................................................................................................. 357

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Chapter 1: What is the Meaning of the Public Good?

From the founding era to the present day, Americans have referred to both the protection of

individual rights and the promotion of the public good as the purpose of government;

alternatively or simultaneously, we have always used both purposes to justify or condemn

political action. It is hard to conceive of a single American political debate outside of the

framework of either concept. Indeed, it could be justly said that American politics constitutes a

continuing debate over what these concepts mean and how they relate to each other. So long as

the structure of American government is traced back—however winding the path—to the

government which the founding generations of Americans established, scholarship of the

founding era remains a part of this political and cultural debate. An examination of the way in

which the founding generation thought about the purpose of government in the context of the

adoption of our Constitution cannot but be relevant to contemporary American life. We make

such examinations not merely on account of historical interests, but because the thought that

established the Constitution we still live under today is ever in dispute so long as its meaning and

purpose remain intertwined with our differing notions of the public good and individual rights in

contemporary political life.

The early years of the American republic are unique because they provide an obvious,

decisive and observable history of the conscious creation and consensual adoption of a specific

form of government by several large communities of human beings. The structure of the

American government we know today was formally established in the space of a mere thirteen

years, from the separation from the British Empire by means of the Declaration of Independence

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in 1776 to the culminating act molding our government into its constitutive form by means of the

adoption of a written Constitution of the United States of America in 1789.

One of the most remarkable facts about the founding period is that one can approach the

birth of American government by almost direct contact with the participants themselves. We

possess voluminous reams of written material from most, if not all, of the major and many of the

minor participants in the events that established American government. The founding generation

left behind a vast collection of speeches, essays, letters, and other documents. What is equally

remarkable, however, is the extent to which much of this material has been neglected. Well over

two centuries later Americans are still putting these documents together into critically confirmed

and edited public editions, many for the first time. For instance, neither The Documentary

History of the Ratification of the Constitution (DHRC), the content of which historian Bernard

Bailyn rightly said, “[t]he sheer bulk is overwhelming,” nor The Papers of James Madison are

completed projects. 1 Only 30 of 45 projected volumes of Madison’s public life are currently

available, and this does not even take into consideration the planned volumes of the extended and

active retirement period of the “father of the constitution.”2 The University of Virginia Press

only recently began the first attempt to put the mass of founding texts, including the DHRC and

the collected writings of major founders into a single searchable, digital format. 3 Slowly but

surely, over the last fifty or so years thousands of pages of texts from the founding era have been

put into print for the first time since they were first written and published.

The mountain ranges of late 18th century America writings are momentous on account of

their content, which includes layers upon layers of arguments made by human beings seriously

engaged in political thought and action during the formative years of the republic. The years

leading up to the Revolutionary War are rife with persuasive briefs from sermons to satires

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composed by and for large segments of society. This explosion of writings concerning the nature

of government and the reasons for or against the Revolution culminates here and there in official

and quasi-official documents representing group opinions. Finally, when the decision to become

independent is made the American mind is ultimately expressed in the Declaration of

Independence itself. There follows an oft neglected fertile period of vigorous deliberation and

eventual adoption of many state constitutions as well as the Articles of Confederation.

From the revolution to ratification and beyond, the promotion of the common good and

the protection of individual rights are inextricably linked themes in American political discourse.

In the very announcement of the birth of America in the Declaration itself, one sees the two

concepts at work. On the one hand, the Declaration of Independence asserts unequivocally that

governments are instituted to secure the rights of individuals. The assertion that just government

exists to secure the rights of individuals seems defining of American political thought and

action—to the extent that, for good and ill, many understand this purpose to exclude any

substantial notion of a common or public good as the end of government. On the other hand, the

rights that the Declaration specifically asserts all men are endowed with—life, liberty, and the

pursuit of happiness—do not necessarily preclude the promotion of the public good as the end of

government, but could be argued to require it. The first fact submitted to a candid world to prove

a history of repeated injuries and usurpations by the “present King of Great Britain” was that

“[h]e has refused his Assent to Laws, the most wholesome and necessary for the public good”;

the following litany emphasizes the suppression of colonial government, law, and legal custom

rather than the violation of the rights of individuals.

Yet the culminating act that determined the form of the United States of America was the

ratification of the Constitution; the ensuing debate over its adoption is perhaps the most direct

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evidence we have of the founding generation’s understanding of the underlying purpose of the

federal government we have inherited. In the space of approximately two years, a large body of

writings again erupted from pens and presses, again composed by and for large segments of

society in an extensive, disparate regime with a relatively large population. This debate, played

out poems, protests, essays, speeches and letters reveals a spirited people deliberating by every

means possible over whether or not to adopt a specific written document as their supreme law, a

document that was itself the product of the extended formalized deliberation of an elite group of

experienced political men. From the debates leading up to the Revolution to the passage of the

Constitution, one cannot but be struck by the vision of a people constantly seeking to publicly

justify and persuade each other of the right course of political action on the basis of argument.

Indeed, the mere existence of such an extensive documentary record itself tells us much about

the character of the government such words helped create: such a record reflects attempts to

persuade others through the force of argument rather than the physical imposition of the will of a

powerful individual or faction.

The political structure the debates created still exists, with relatively few amendments,

and the Constitution remains the supreme law of the land. Rhetorically, at least, most arguments

in American politics assume its primacy or appeal to its authority. Both common and expert

opinion agree that the Constitution is still to a large extent determinative of the organization and

composition of the federal government today, regardless of the extent to which one thinks

American government has changed over time. Thus the purposes for which early Americans

designed and adopted the Constitution remain as relevant as the Constitution itself. Even if one

concludes that the Constitution is completely irrelevant today, and that the above sentence is

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false, one must still argue to this conclusion based on an understanding of the ends for which it

was formed over two centuries ago in order to make a convincing case for its irrelevancy.

Participants in the ratification debates frequently speak of two overarching purposes of

government. Brutus, perhaps the most renowned of the Anti-Federalists, says a wise constitution

would “secure the inestimable rights of mankind” in his first essay4 and declares that “[t]he

common good…is the end of civil government” in his second.5 In Federalist 10, Publius says

that “[t]o secure the public good and private rights…is then the great object to which our

inquiries are directed.”6 Seemingly in spite of reigning interpretations, Federalist 10 mentions the

“public good” explicitly six times, and uses the phrase the “common good” and the “good of the

whole” once each. What then do Brutus and Publius mean by such phrases? What is the

meaning of the notion of the public good considered as an end or purpose of government in the

published essays of the ratification debates?

This question is not an easy one to answer. First, of course, one cannot assume that

contemporary understanding of the “public good” or the “common good” remains the same as it

was for the founding generation of Americans. Given the confusion and debate within and

across academic disciplines, not to mention political parties, as to what these seemingly

amorphous terms mean, it is not even clear as to what this contemporary understanding is. Yet

although the notion of specifically natural rights as elucidated in the Declaration and the

ratification debates is fainter in American discourse than it once was, it is still part of that

discourse. Similarly, the notion of the public good as constituting more than tangible, material

public goods is also fainter than it once was, and yet it is still part of that same discourse. It is in

some ways intrinsically harder to answer, however, what the public good might mean than it is to

explain what it means for government to secure individual rights.

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Part of the reason for this is that discussion concerning the public good is often obscured

behind talk of the securing of rights, which, as in the Declaration itself, has always been front

and center in American political discourse. In our own time, the notion of individual rights

seems more prominently written into the Constitution itself in the Bill of Rights compared to the

appearance of “the general Welfare” in the preamble, and the same applies to our contemporary

understanding of the way in which these ideas are used throughout the history of American

political life. Some of the most disputed political issues of our time seem to revolve around

individual rights, and we increasingly teach our history in terms of an unfolding of an ever

growing parade of individual rights. Yet the fact remains that the concept of the public good has

been ever present and ever tied to discussion concerning the securing of rights, and it remains an

intrinsic part of our political discourse today.

Yet the definition and role of the public good seems more abstract and disputed than that

of individual rights to us—seemingly more closely bound up with difficult and unsettled matters

of politics and political philosophy. From Plato’s forays into the relation between the one and

the many to Aquinas’s definition of law to countless official and unofficial formulaic expressions

of political purpose throughout the ages, the notion of a common good has always played an

integral and disputed part of western political philosophy. On account of its abstraction any

verbal formulation of the idea can be used in so many senses that it possesses an intrinsic

ambiguity and mystery. The existence of the thing itself has been vehemently disputed and, even

positing its existence, its meaning is not only frequently in dispute: the full depth of that meaning

seems admittedly ever out of complete grasp of even the minds of those who espouse it.

Despite these difficulties—and because of them—there are ample and obvious reasons to

scrutinize the words left to us from the ratification debates in order to determine what the

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founding generation thought about the purpose of government and the notion of the public good.

First, the entire debate was an extended argument over whether or not to establish the specific

form of government that has lasted to the present day. One can comfortably examine the debates

for what was specifically said about the end of government and work to uncover what was left

unsaid with the confidence that the participants’ understanding of the purpose of government is

necessarily related to their position on whether or not to actually adopt a particular government.

Second, examining the ratification debates allows one to investigate the breadth and depth of

agreement on the issue: was the rift between Federalists and Anti-Federalists caused by a

disagreement over ends involving conflicting political philosophies or was it a disagreement over

means within the framework of a shared political philosophy? Third, specifically examining the

most public part of the debate in extended published arguments from both sides reveals what

they thought the shared principles of the general reading public were. Newspaper essays and

pamphlets, as opposed to closed debates or private letters, provide revealing evidence of the

common assumptions of the time to which all sides appealed. Not only were these writings

created by their authors for the express purpose of persuading the general reading public, they

were also usually selected by partisan publishers and editors for the same reason. Thus, they

reflect arguments that their authors and publishers thought would most likely sway readers.

Terms for the Public Good The “common good” is the philosophic phrase that seems to most clearly and simply refer to a

good that is good for many. I understand the phrase broadly, as if the “public good,” the

“general welfare,” and other like phrases all live within it. By referring to the “common good”

one makes clear one is not speaking about an “individual good” or, to be more precise, a “private

good” which cannot be shared, participated in, or possessed in common. Note that there is no

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reason why an individual good must stand in tension with the common good. In fact, in political

speech it is often assumed that the good of the individuals is tied to the good of all in some

intrinsic or substantial manner. The good of the child or the family is not necessarily opposed to

education considered as a public good; in fact, it is assumed that the public good of education is

good for the child and the family. Yet when we refer to a private good, we usually mean a good

that cannot be shared in this way. A common good, however, refers to a good that is shared,

participated in, or possessed by many as opposed to a good that is proper only to an individual or

a specific part. These terms are generic; the “common good” could refer to any parts and any

whole.

The Federalists and Anti-Federalists themselves spoke of the “common good,” but they

also spoke of the “public” or “general” good; the “common,” “public” or “general” welfare; and

the “common,” “public” or “general” interest; the “public” or “general happiness”; as well as a

variety of other phrases such as the good, welfare, interests, or happiness “of the whole,” “of the

community,” etc. First, note that all the above adjectives are essentially interchangeable in

meaning. In Noah Webster’s 1806 dictionary, as an adjective “public” could mean “common” or

“general” as well as “open” or “notorious.” (As a noun, “public” meant “the body of a nation, an

open view.”)7 As an adjective, “general” could mean “common” or “public” as well as “usual,”

“extensive,” and “large.” (As a noun, it could mean “a whole” as well as “great military officer”

or “director.”)8 Similarly, as an adjective, “common” could mean “public” as well as “equal,”

“usual,” “vulgar,” or “mean.” (As a noun, it could mean “land belonging to a number and not

separated by fences.”)9

Regardless of overlap, however, the “public good,” is more circumscribed than the

“common good” as “public” is more limiting than “common.” Things that are public are, by

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definition, common in a specific manner, whereas not all things that are common are necessarily

considered or said to be public. The “public good” contains within it an implicit distinction

between what is private and public that refers the reader specifically to human beings. The

phrase represents what is shared by human beings in an open, communal fashion within a

political regime; whereas a “private good” refers to what is good particular to one human being

or perhaps a small group of human beings as distinct from what belongs to or can be said of the

larger, public community. The first meaning of “publick” as an adjective in Samuel Johnson’s

last 18th century dictionary was “Belonging to a state or nation; not private”; another was

“Regarding not private interest, but the good of the community.”10 Thus although the phrase can

be used interchangeably with “common good,” by referring to a “public good,” one adds

specificity that the adjective “common” does not possess. “Public” generally indicates a relation

to a political human community related to society, the citizenry, or government and our actions

in light of this community that “common” does not necessarily imply.

Of course, the distinction between public and private in the context of the end of

government is not mere semantics. Modern scholarship maintains that one of the tenets of

“classical republicanism” is that human fulfillment is found ultimately in public action, or insofar

as an individual takes on an active political role for the polis, while liberalism refers to the idea

that the purpose of government is to fulfill the private good of the individual. This is but one

example of the fundamental difference to one’s understanding of government and its purpose the

private versus public distinction might make.

In the following pages I generally use the term “public good” in favor of other, possibly

synonymous phrases, with the understanding that the “public good” is comprehended in some

measure by the overarching meaning of the “common good.” I have chosen to use the “public

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good” because it is the most frequently used phrase by the above authors that most clearly

hearkens modern readers to the idea under investigation; I also think it is the most accurate and

comprehensive description of the founding generation’s idea of the purpose of government other

than the protection of individual rights. To speak of the “public good” is to speak of the

common good of a political community, and this is the notion that I am examining in the

ratification debate.

Although these phrases are all related, clearly they can potentially signify vastly

different—even opposing—notions. If one accepts the general depiction of modern scholarship

described in the next two chapters one would likely think that references to the “common good”

would have classical republican connotations and link back to pre-modern political philosophy;

“public good” tends towards classical republican connotations but could be compatible with both

or either republicanism or liberalism; and “common,” “general” or “public” interest would seem

to possess a liberal connotation and bear some relation to early modern political philosophy. For

example, if one speaks of a common interest instead of a common good, one might very well be

replacing a concern for what is good and evil with a concern for unifying self-interests. Instead

of speaking about what is truly good in common, one might be speaking about a collection of

selfish desires that are in truth only accidentally considered common in that they do not have the

same or a fully shareable object. On the other hand, it is not inconceivable that one could

understand common interest as referring to the common good itself if one thought that interests

rightly understood are satisfied by a truly common good. On account of this ambiguity, when

calculating the frequency of use of phrases used referring to the public good, I have not included

related phrases that use “interests” as their base word.

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Two other frequently used, relevant base words in phrases related to the end of

government are “welfare” (sometimes “common” or “public,” etc.) and happiness (sometime

“public,” “national,” or “of the people,” etc.). Generally, the meaning of welfare is

interchangeable with happiness—Noah Webster’s and Samuel Johnson’s dictionaries list

“Happiness” as the first meaning of the word. Yet the other meanings of “welfare” are “success,”

“prosperity” (“success,” “good fortune,” “happiness”11), and “health,” so one might take

“welfare” to mean happiness with a slight emphasis on material well-being.12 Still, “welfare”

and its promotion among the people or public of the individual states, or all the states together, or

on its own seems very much connected with the older, classical notion of the common good, in

which happiness is understood to be achieved by attaining what is good in common. A sign of

this is found in the meanings of the “weal” and “commonweal,” which are each etymologically

related to “welfare.” “Weal” is defined as “happiness,” “prosperity,” or “state”13; the

“commonweal” is defined as the “public good or welfare.”14 (emphasis mine) Phrases using

“welfare” as their base are used in context within the ratification debates in place of the

“common good” or the “public good” and not alongside them, whereas “happiness” seems to

bear a related but distinct meaning. One could refer to “your welfare” and “your good” almost

completely interchangeably, whereas to refer to your “happiness” is to say something different.

(For Webster, “happiness” means “blessedness,” “content,” “good fortune.”15) Further, the state

is not a person who obtains happiness; happiness refers most properly to what is possessed by

each of the individuals that make it up. One’s happiness is fully one’s own, even if obtained

through common action. The “welfare” or “good” of the public, as opposed to their happiness,

seems to signify a more unitary notion that signifies—and depends upon the existence of—a kind

of unity or relation between all the citizens; whereas happiness refers most properly to what each

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possesses individually, even if, again, this happiness is dependent upon and received through

their partaking in the public good or welfare. The public might be happy, but for this to be a

unitary notion that happiness must come through some good that is shared. Happiness could

potentially more easily refer to each individual’s enjoyment of their rights as well as their shared

possession of a public good. Hence, when calculating the frequency of references to the public

good, I have included all terms using “welfare,” “weal,” as their base in addition to those that

refer to a unitary “good,” but I have not included those terms with “happiness” as their base.

It must be noted, however, that happiness is referred to as the end of government

frequently, and it is often discussed insofar as it is “general” and “public.” Further, even upon a

superficial glance at the texts in question happiness seems to signify something more than

material well-being. Happiness or its variants are usually spoken of in the same breath as

“safety” or something similar as an end of government in such a way as to make clear that

happiness (and, perhaps even more obviously, “welfare”) refers to something more than, and

even more noble than, safety or material well-being.

Linguistic and etymological nuance aside, of course, all of the above terms could be used

by an author who adopts either political philosophy. Even assuming all that I have sketched

above contains some element of truth, for instance, a writer could easily use any one of the terms

used above and actually mean what another of the terms above better signifies in terms of

political philosophy. It is conceivable that an Anti-Federalist writer could say that the proposed

constitution should promote the common interest in an off-hand, general comment, but in the rest

of his essay deny the central tenets of liberalism. He might mean that it is in our common

interest to be virtuous and good. Conversely, another writer could say that the proposed

constitution must promote the common good in passing, but in the rest of his essay embrace

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liberalism. One might say, for instance, that our common good is intrinsically related to

commerce alone and is achieved strictly through the promotion of material prosperity or that the

common good is only common insofar as everyone ought to be allowed to decide what is good

for themselves.

We ought to be wary of such loose fitting speech since, after all, the participants of the

ratification debates were not writing carefully thought out philosophical treatises, but political

rhetoric, often hastily written in the heat of passionate debate tied to the flesh and blood reality of

their lives. With these things in mind, it seems that all of the terms above point in some way,

however vague, to a shared reason and purpose for the existence of government that, whatever its

meaning, ought to be distinguished from the notion of the protection of individual rights as an

end of government (even if the two concepts are intrinsically related).

What Is the Public Good? How ought we to interpret the meaning of these phrases? While the following chapters will look

at how the concept is used within the ratification debates in order to better understand the phrase,

we ought not to act as if, prima facie, the meaning of these phrases is a complete mystery.

Of course, the common or public good is used to signify a wide spectrum of meanings.

At one end, in economics, public goods may refer to material things that are, functionally or

practically speaking, at least, able to be used by many freely without additional cost and

diminishment. Paul Samuelson, for instance, launched a theme of modern economics when he

said: “I explicitly assume two categories of goods: ordinary private consumption goods…which

can be parcelled out among different individuals…and collective consumption goods…which all

enjoy in common in the sense that each individual's consumption of such a good leads to no

subtraction from any other individual's consumption of that good.”16 “Collective consumption

goods” are now generally referred to as “public goods”; Samuelson’s definition meant that,

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practically speaking, what made a good public was the fact there was enough of it to go around.

Examples approximating a true public good in this sense include fresh air, free broadcast

network television, and plentiful species of fish in the ocean.

Even within economics, however, there is an acknowledged wide gradation involving the

disputed and complicated meaning of public goods. Of course, most physical goods are, in

principle at least, “subtractable” or, to use a synonymous word from economics, “rivalrous”: if I

take an apple from the tree and eat it, there is one less apple for others to take; similarly, if I use a

shovel, no one else can use it simultaneously. Physical goods are also generally “excludable”

insofar as their acquisition or use can often be controlled and limited, especially in lieu of

payment. There may be plenty of apples to go around, but they might all be on trees on the other

side of a fence. A modern retrospective on Samuelson’s paper sums up a typical economic view

today that “a pure public good is usually defined as being wholly nonrival in consumption and

non-excludable, a pure private good as being wholly rival in consumption and excludable and a

mixed good represents some kind of a blend between these polar cases.”17 The problem is that,

when it comes to material goods, in principle they are not actually wholly nonrival or non-

excludable; although practically or functionally speaking these might serve as a public good, at

least most goods that are physical things are potentially rivalrous and excludable. As economist

Richard Musgrave said, “This approach has been subject to the criticism that this case does not

exist, or, if at all, applies to defense only; and in fact most goods which give rise to private

benefits also involve externalities in varying degrees and hence combine both social and private

good characteristics.”18

Within the ratification debates, the word “goods” was often used to describe physical

items of trade, but a word search of the Documentary History reveals no use of the phrase

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“public goods” or “common goods,” and it is clear from context that the “public good” and the

“common good,” etc., did not refer to physically distributable goods. A sign of this is that when

they use these terms, they refer to a single entity: the public good, or the common good, or the

good of the whole, etc. In political speech today, however, we often speak of public or common

goods, and the reason for this seems obvious: we often refer to material things as public or

common goods that ought to be divided up in accordance with some notion of distributive

justice.19 The fact that the participants in the ratification used terms that are not applicable to

material goods, however, is precisely what makes those terms interesting as evidence for an

underlying political philosophy.

Whatever the common or public good was for the founding generation, then, it was not

that of modern economics, except, perhaps, insofar as economics recognizes something like

national defense as a public good. The economic definition, however, is revelatory in the sense

that it attempts to ascribe properties to the public good that can only be said in principle to apply

to non-physical things. One can see that the less bodily and the more unitary the good, the more

“nonrivalrous” and “nonexcludable” it becomes. The aesthetic beauty of a public building, for

example, or free broadcast television thus seem like more perfect public goods than an apple or a

fish, and the reason for this seems related to the fact that the former two goods are more “one

thing” and also more related to human reason or understanding while the latter two are more

bodily in nature.

In traditional western philosophy, the common good generally refers in the highest and

most strict sense to that which is good for one person only if it is good for another, such as the

victory of an army in a battle, or the harmony of a choir. In both examples the good of victory or

harmony is either achieved by all or none of the soldiers or singers. In the same way, one could

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call justice in a political regime—insofar as this means the right relation between all the

citizens—a common good. Justice is good for many at the same time, albeit in different ways—

and yet it remains what it is; peace or tranquility, i.e., the harmony or concord arising from this

right relation between the citizenry, is a common good in the same way. These public goods in

the more perfect sense are not fully possessed by any one person, but all share in them. The

peace of the city or the justice of the laws cannot be said to be mine personally, although I

possess them and participate in them personally if I am part of the city. They exist insofar as

they exist in individuals, but the individual can only seek and love them insofar as they are

common, for they cannot be had in any other way. The more people live in justice and peace, the

more justice and peace are increased. Without other people there is no justice or peace in the

political sense. Even in an interior sense, in one person, the two notions’ definition and

existence depend upon a harmony and right relation of parts within a person.

The public good, then, in the highest or most perfect sense refers to a good of a political

community that remains one thing, or is unitary and irreducible, even as many participate in it or

possess it in common. At the same time, it is not separate from the individuals who share in it.

They possess it insofar as it is common or public. The public good in this older sense is not a

material thing, nor a sum total of individual goods. Peace and justice are traditionally

understood to be the public goods that comprehend all others for the political regime.

Authors Considered In the following pages I examine the understanding of the public good in the founding era in

relation to the Constitution by analyzing ten major authors, five Federalists and five Anti-

Federalists, of the ratification debate. Three criteria governed the choice of authors. First, the

selection must have been either widely reprinted by multiple papers or printed repeatedly over a

length of time by one paper. Second, the selection must have been more than a few paragraphs.

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Although investigating what were perhaps the most widely read arguments of the ratification

debates—the short, unsigned editorials or “squibs” that were reprinted in newspaper after

newspaper—would undoubtedly prove fruitful, the dissertation avoids these in favor of

examining more sustained efforts. Third, essays for both Federalists and Anti-Federalists were

sought from the northern, middle and southern states, with preference given to states within

which significant debate occurred.

Anti-Federalists

Given these criteria, I examine the complete works published during the ratification

debates of five Anti-Federalists: Agrippa, Brutus, Centinel, Federal Farmer, and Impartial

Examiner. They constitute five of the nine authors whose writings appear in the one volume

edition, selected by Murray Dry (1985), of Herbert Storing’s Complete Anti-Federalist (1981).

With the exception of Impartial Examiner, who was reprinted by Storing for the first time in

1981, all five appear in most selections of the Anti-Federalists published over the last 40 years.

Although several of the essays were reprinted across state lines and included in nationally

distributed pamphlets, they were originally published in Massachusetts (Agrippa), New York

(Brutus and Federal Farmer), Pennsylvania (Centinel), and Virginia (Impartial Examiner).

The Virginia Independent Chronicle published five essays signed Impartial Examiner

(and sometimes “P.P.” in addition) from February 20, 1788 to June 18, 1788. This is the

lengthiest published series of Anti-Federalist essays in the crucial Virginia debate. As with

Agrippa, Impartial Examiner was not widely reprinted across state lines, but anyone within the

state reading about the convention would have come in contact with the essays. Storing calls

them “interesting and important,” singling out the discussion of representation as “one of the

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good Anti-Federalist discussions of this matter.”20 The author was likely a well educated,

politically savvy Virginian.

The Massachusetts Gazette published sixteen essays signed Agrippa from November

23rd, 1787 to February 5th, 1788. Although just three of his essays were reprinted a total of only

four times (one essay twice and two once each), Agrippa’s essays represent the most sustained

and substantial effort of all the Anti-Federalist writings originating in Massachusetts during a

crucial focal point of the ratification period. Agrippa’ essays played an important role within this

debate; Federalists routinely and vociferously attacked them. As the DHRC relates, “[f]ew

Antifederalist writers were so universally condemned.”21

Agrippa was known at the time as James Winthrop, a descendant of John Winthrop and

the son of a prominent professor at Harvard. Although the irascible New Englander was perhaps

not as prominent a political figure as many of the other authors this dissertation considers, he

was a part of the Massachusetts intellectual establishment in more than name. He took part in

the Revolution and assisted in militia efforts to suppress Shays Rebellion. At the time the essays

first appeared Winthrop was a thirty three year old independent scholar and register of probate

for the county of Middlesex, for which he would in later years become a judge. He began his

studies at Harvard when he was thirteen; after failing to obtain a Harvard professorship as chair

of mathematics and natural philosophy, he had recently resigned as librarian when the

ratification debates began. A brilliant polymath (he made efforts in astronomy and knew

Hebrew and Chinese, among other languages), his obituary in the proceedings of the

Massachusetts Historical Society, of which he was a founding member, says he failed to receive

the professorship in part because at the time “[h]is manners were peculiar and eccentric, and not

the most conciliating. He was very independent in his sentiments; and by some was considered

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obstinate and conceited.” He was not helped by the fact that during this period of his life there

was “apprehension of him becoming addicted to intemperance,” although apparently he

overcame this proclivity as he grew older.22

Agrippa is included in most modern compendiums of Anti-Federalist writings and is

frequently cited in debates over the character of the founding period. Storing introduces his

essays as “important,” characterizing them as “vigorously and well argued.”23 William B. Allen

and Gordon Lloyd assert that Agrippa’s essays, seven of which are included in The Essential

Antifederalist, “are among the most coherent of all in the Antifederalist literature.”24

The New York Journal published sixteen essays signed “Brutus” from October 18th, 1787

to April 10th, 1788. His individual essays were, like Agrippa’s, reprinted somewhat less than

most of the other authors analyzed below. Yet “newspaper reprinting does not adequately

illustrate the extent of circulation” since he was “criticized and defended by newspaper writers in

towns…where the essays are not known to have been published.”25 The extent of his influence

is apparent from numerous statements made by Federalists and Anti-Federalists alike. James

Madison took immediate note of this “new Combatant, … with considerable address &:

plausibility” and on occasion Publius seemingly wrote in direct response to Brutus, starting

perhaps with the very first Federalist Paper.26 Fellow Anti-Federalists Cato and Centinel treated

Brutus’ accounts of certain subjects as authoritative.27

Nor has respect for Brutus faded with time. Cecilia Kenyon (1966) gave the

“outstanding” essays high praise.28 Following Paul Leicester Ford, she attributed them to Robert

Yates, of whom she said “[t]he Antifederalists had no publicist more able.”29 While Storing

expressed doubts as to whether the author was Yates, his judgment that the essays offer “the

most direct Anti-Federal confrontation of the arguments of The Federalist,” and that Brutus

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provides the “best” Anti-Federalist argument on a number of topics, is not uncommon among

scholars.30 Morten Borden calls Brutus, “[t]he most brilliant of all Antifederalist writers,” also

arguing that Yates was not the author.31 Ralph Ketcham lists him as one of four “major” Anti-

Federalists32 and the DHRC ranks his essays “among the finest Antifederalist writings.”33

Shortly after they were published various people guessed that Brutus was everyone from

Richard Henry Lee to John Jay, but for many years scholars have generally accepted Ford’s

claim that Robert Yates was the author. Yates was a surveyor and lawyer active in the

revolution, a member of the committee that wrote the New York state constitution and a New

York Supreme Court judge besides being a dissenting member of the Constitutional

Convention.34 Although an increasing number of scholars have seen little evidence for Yates’s

authorship, few have suggested alternatives. The Anti-Federalist Writings of the Melancton

Smith Circle, published in 2009 and edited by Derek Webb and Michael Zuckert, argues that

Melancton Smith was either Brutus or the Federal Farmer, but most likely Brutus. Smith was a

prominent politician and merchant who famously led the opposition to Hamilton at the New

York ratifying convention. His reversal of his position and vote for the Constitution likely

damaged his future political career in New York State even as it ensured the adoption of the

Constitution.

Four Philadelphia newspapers published eighteen essays signed Centinel from October

5th, 1787 to April, 9th 1788. Centinel’s feisty essays were a central part of the Anti-Federalist

canon, reprinted more on average per essay than The Federalist Papers. The first essay was

printed in nineteen newspapers in sixteen towns; many of them made appearances in multiple

pamphlets and broadsides. There is ample evidence that Samuel Bryan, who turned thirty in

1789 and held a number of positions in Pennsylvania and Philadelphia government throughout

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his life, was the author. It is likely that his father, a well known Pennsylvanian judge and

legislator, influenced the writing of the essays.

Centinel presents the reader with the most strident rhetoric against the Federalists of any

of the Anti-Federalists considered here. Bailyn refers to the series as a “foaming diatribe,” but he

also acknowledges that, at least compared to even more vehement Anti-Federalists, Centinel

“included some reasoned arguments” amidst his rhetorical flourishes.35 Beneath the sometimes

shrill tones one finds clear and consistent principles of political thought that are representative of

how the Anti-Federalists think one ought to guard against a tyrannical federal system. As one of

the best known Anti-Federalists he was frequently attacked and answered by Federalists,

including James Wilson in his State House Yard Speech. Centinel is inevitably included in most

collections of Anti-Federalist thought published over the last half century.

The pamphlet signed “Federal Farmer”, composed of five letters dated within the month

of October, 1787 was first mentioned as available for sale in New York on November 8th, 1787.

At least four editions would be published, and the pamphlet was no doubt one of the most widely

circulated of the debates. Publius himself calls the Federal Farmer “the most plausible” of the

Anti-Federalists in Federalist 68.36 The editors of the DHRC call the Federal Farmer “the best

Antifederalist writing” and, as with Brutus, virtually all scholars who speak of the essays, such as

Storing and Ketcham, give them high praise.37

Richard Henry Lee has been traditionally understood to have been the Federal Farmer, a

view voiced by some Federalists at the time the essays were published. Lee, a well known

revolutionary and nationally known political leader (and future senator) from Virginia, was a

major figure in the Continental Congress. Lee’s authorship has been increasingly questioned,

however, notably and initially by Storing and Wood. The current editor of the DHRC, John

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Kaminski, makes a case for Elbridge Gerry, but the most frequently mentioned alternative is

Melancton Smith. Joseph Kent McGaughy38 and Robert H. Webking39 suggested that the author

was Smith before Webb and Zuckert’s recent argument that if it was not Smith it was one of his

“circle.”40

Federalists

The inquiry below purposefully omits the writings which compose The Federalist

Papers. The eighty five essays by Publius have received more attention over the last 50 years

than the rest of the writings in that debate combined and since they are the most known, they are

also the most encrusted with over two centuries of commentary, having entered the canon of

western political thought ripped from the context of the rest of the ratification debates. Their

status is justified, both due to their authorship and their content; since their first printing The

Federalist Papers have been recognized as the best articulation of Federalist thought. In many

respects the debate over the underlying political philosophy of the Constitution revolves around

them, with little attention paid to the writings of the Anti-Federalists, while the “other

Federalists” receive even less attention.

Yet the intense focus on the Federalist Papers sometimes obscures the vision of the

modern scholar, making it easier for various extremes to stand firm on well-trod ground rather

than explore larger themes of the ratification debates. The oft-cited words of The Federalist

Papers are wielded as weapons in larger debates as much or more as the essays are analyzed on

their own terms. To understand the meaning of The Federalist Papers, however, like any other

serious work, it is important we understand its context in order to comprehend its intent and

accomplishment —especially considering that it is not an abstract treatise of political philosophy,

but a series of periodic essays written to persuade in the midst of a highly unique public debate.

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The thick forest of arguments that have grown up around The Federalist Papers need to be dealt

with by any serious interpretation of the work; given this fact and the comparative length and

substance of the essays, it is impossible to give Publius his due while also examining the other

major texts of the ratification debates in a dissertation of reasonable size.

I examine five Federalists: Tench Coxe, John Dickinson, Oliver Ellsworth, Noah

Webster, and James Wilson. Each are represented multiple times in Colleen Sheehan and Gary

McDowell’s Friends of the Constitution: Writings of the Other Federalists.41 Although the

writings of the “other Federalists” are not as well known as the major Anti-Federalists are today,

all five authors are known as prominent early Americans. Despite the fact that their writings

were widely read during the ratification debate, Herbert Storing’s essay printed in Sheehan’s

compendium is one of the only substantial scholarly attempts to discuss them as a group. Their

writings were originally published in Pennsylvania (Coxe, Dickinson, Webster, Wilson), New

York (Webster and Coxe), and Connecticut (Ellsworth) but the work of each author was widely

republished throughout the states.

Tench Coxe, a politically active Pennsylvanian merchant, was a one man propaganda

machine. Coxe was a delegate to the Continental Congress and the Annapolis Convention who

would serve in the Washington, Adams, and Jefferson administrations in various capacities,

contributing substantially to Alexander Hamilton’s Report on Manufactures as Assistant

Secretary of the Treasury. The only real Federalist rival to Publius’ prodigious word count, Coxe

was possibly the most widely read of any Federalist author. There are at least 8 separate series of

essays or single essays published by Coxe in the DHRC under various pseudonyms, and a

combined total of over 150 total printings and reprintings of individual essays. Although several

of these were published in Pennsylvania in various papers, Coxe routinely sent his writings to

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various papers in multiple states throughout the ratification period, targeting states like New

York and Virginia during their conventions.

The Hartford Connecticut Courant and the Hartford American Mercury published

thirteen essays signed “Landholder” from November 5, 1787 to March 24, 1788. All evidence

points to Oliver Ellsworth, a lawyer, politician and judge who played an integral part in the

Constitutional Convention, as their author. Ellsworth would go on to become a Connecticut

Senator and major author of the Judiciary Act, a diplomat, and the third Chief Justice of the

United States Supreme Court. His essays were among the most popular and widely reproduced

of all the Federalist writings, likely read by more people than The Federalist Papers during the

debates. The Landholder essays were individually printed a combined total of 146 times

throughout the nation, an average of a little over 11 times an essay. His letter written with Roger

Sherman submitting the Constitution for consideration to the Governor of Connecticut and two

selections of his speeches were printed a combined total of 65 times in various publications.

Although Ellsworth protested the quality of the transcription and the fact it was printed, both

Hartford papers published a speech he made on January 4, 1788 (reprinted 21 times and in seven

other states) and January 7, 1788 at the Connecticut ratifying convention (reprinted 13 times and

in four other states). Both Elbridge Gerry and Luther Martin, who had refused to vote for the

Constitution at the Philadelphia Convention, responded to the Landholder essays in the public

press.

The Pennsylvania Mercury published nine essays signed “Fabius” between April 12 and

May 1, 1788. John Dickinson, a lawyer turned eminent politician both nationally and in

Delaware and Pennsylvania (serving as governor in each state) for over two decades prior to

ratification, wrote the essays. His writings were enormously influential throughout the

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revolutionary period, after which he chaired the committee that drafted the Articles of

Confederation, served as chair of the Annapolis Convention and played a notable role in the

Constitutional Convention. Taken individually his essays, praised by the likes of George

Washington and Benjamin Rush, were separately printed a combined total of 58 times in various

papers throughout the country, an average of slightly more than 6 reprints for each essay.

Dickinson went on to help draft a revised Delaware constitution and promote abolitionism in his

retirement.

It is remarkable that James Wilson’s “State House Yard” speech, given on October 6,

1787, is one of the earliest and widely known federalist arguments and is mostly “a refutation of

the charges that are alleged” rather than a positive argument. Reprinted a combined total of 38

times, it appeared in multiple pamphlets and 34 separate newspapers in 27 towns. Wilson’s

speech delivered on November 24 to the Pennsylvania Convention was first published in

summary form in the Pennsylvania Packet the 27th of November and the next day in the

Pennsylvania Herald; some version of it was reprinted a total of 40 times throughout the states.

Probably no other Federalist speeches or writings made an impact as visible in the press as

Wilson’s speeches did; Anti-Federalists specifically cited and criticized them far more often than

The Federalist Papers and likely any other single Federalist author. Many of Wilson’s speeches

in the Pennsylvania Convention were also published individually in newspapers as well as being

collected together and published as a pamphlet. Wilson, a lawyer and experienced figure in

national and Pennsylvanian politics, was one of the most significant figures of the Constitutional

Convention as well as the Pennsylvania ratifying Convention. Likely more known to scholars

today than the other authors examined here, he was to become a Supreme Court Justice.

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Noah Webster, “a native of Connecticut who had recently moved to New York City from

Philadelphia” to launch American Magazine, had published arguments for a stronger centralized

government years before the Constitutional Convention convened.42 A graduate of Yale,

Webster was a lawyer turned educator who, besides his dictionary and textbooks, would continue

to keep up an active role as a political polemicist in future years. Throughout his life he edited

and wrote publications on a wide variety of topics, as well as eventually serving in the

Connecticut House of Representatives. On October 17, 1787 he published a substantial,

nationally circulated pamphlet as “A Citizen of America.” During the ratification debates he

published at least four anonymous essays which were reprinted at least 8 times.

As a whole, this collection of essays provide a fine, uncontroversial sampling of the most

public part of the ratification debates. Each of these ten authors provides a substantial body of

arguments within which they touched on the most significant themes of the debate. Each one of

these texts warrants extended study in a search for clues as to what the ratification debates reveal

about the founding generation’s understanding of the purpose of government.

Outline of the Dissertation On the one hand, although it is a necessary, right, and fitting task, the following chapters will not

attempt to place the thought of the ratification debates within a larger philosophic context. On

the other hand, this is not a work of history nor a word search that presents words relating to the

public good out of context. The following chapters will instead steer a middle course, examining

the way in which the public good plays a part in major themes of the ratification debates while

treating each author’s printed words as an organic whole. Chapter 2 questions the extent to

which the liberalism camp can adequately account for the way in which both sides in the

ratification debate speak in the print of the common good. Chapter 3 questions the extent to

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which the scholarship of classical republicanism, with special attention paid to the thought of

Gordon Wood, adequately accounts for the way in which both sides in the ratification debate

speak in the press of the common good. Chapter 4 will juxtapose the idea of rights with the use

of phrases referring to the public good in Federalist and Anti-Federalist writings. Upon this

foundation, chapter 5 through 9 look more closely at the way in which the public good arises in

the central theme of the ratification debate. Chapter 5 looks at the public good in the Anti-

Federalist conception of representation; chapter 6 looks at the public good in the Federalist

conception of representation. Chapter 7 turns to the role of virtue and licentiousness in Anti-

Federalist and Federalist thought. Chapter 8 does the same for federalism; chapter 9 for union.

Chapters 10 and 11 conclude with a summary judgment of the meaning and role of the public

good in Anti-Federalist and Federalist thought.

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Chapter 2: Liberalism and the Public Good

Introduction Despite its enormous quantity and wide variety, and despite the groans in multiple fields of

scholarship that the simplicity of such binary categorization induces, over the last fifty years or

so those scholars asserting the existence of an underlying political philosophy or philosophies

during the founding era can generally be divided into two groups.

Not coincidentally, these groups are roughly organized by the two overarching purposes

of government that the founding generation repeatedly referred to in the ratification debates.

One group sees the founding as a product of “modern” western political theory, or “liberalism,”

which rejects older political traditions and seeks to establish a government with the ultimate goal

of protecting individual rights. The other group sees the founding as a product of political

thought that evolved out of older traditions, or “classical republicanism,” which seeks to

establish a government with the ultimate goal of promoting the public good. When it comes to

the debates over the underlying philosophy of the founding, Alan Gibson has performed some

proverbial yeoman’s work summarizing the literature in his two recent volumes.43 When it

comes to a summary depiction of those who find a liberal consensus at the heart of the founding,

his account is as good as any:

Broadly speaking, this interpretation suggests that the core of the Founder’s political

thought is encapsulated in the Lockean variation of the principles of classical liberalism.

The Founders, according to proponents of this interpretation, believed men “created

equal,” possessed of “natural” rights, and motivated primarily by the pursuit of their

passions and interests…

Since men were naturally equal and intractably self-interested, governments should

promote stability and personal security, protect individual rights (especially property

rights), and promote economic prosperity.

Conversely, government should not try to foster virtue among the citizenry, promote

some organic conception of the common good or “good life” . . . governments should

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divide powers between different branches of the government and use diverse social

interests to prevent both governmental tyranny and the tyranny of the majority.

Finally, this interpretation also stresses the acceptance by the Founders of an early form

of commercial capitalism.44

The tenets of the other modern conceptual category—classical republicanism, to be

discussed in the next chapter—are harder to categorize, but there is common agreement among

these scholars that early American political thought did wish to promote an “organic conception

of the common good” and actively sought to “foster virtue among the citizenry.” This camp

claims that early Americans, especially before the adoption of the Constitution, held civic and

moral education to be a vital part of good government and viewed the “commercial republic” of

liberalism as a corrupting influence. In this view, liberty is vital not necessarily as an end in

itself but is to be protected largely for the sake of allowing civic participation in the shared way

of life of the regime. Citizens ought to be taught to sacrifice their own interests for the sake of

the public good; the securing of individual rights was not the ultimate purpose of government.

Ultimately, at the heart of the scholarly understanding of liberalism is a government that

aims at protecting individual rights; at the heart of the scholarly understanding of classical

republicanism is a government that aims at promoting the common good. Republicanism, which

is said to judge human beings as virtuous or vicious, seeks to promote civic virtue through law,

education and/or religion. Liberalism, which is said to judge human beings as self-interested,

seeks to channel and check those interests, in part by promoting a commercial republic and

protecting individual rights, but ultimately by allowing such individual interests to be fulfilled.

Republicanism possibly hearkens back to Aristotle and pre-modern thought through either

Machiavelli or pre-enlightenment English thinkers, while liberalism is said to be an early modern

idea arising from John Locke and the others during the Enlightenment period.

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Both sides usually claim that early American Christianity bolstered their version of the

era’s reigning political thought, although liberalism is sometimes depicted by both sides as being

in possible contradiction, implicitly or explicitly, with Christianity. It is, perhaps, worthy of note

that most of those on both sides of this debate see Christianity’s influence as a subset of which

outline above they subscribe to—in other words, it is said that Christian political thought was

subsumed or incorporated by early Americans into one of the above camps. Indeed, the

longstanding philosophy and practice of western religion when it comes to politics are generally

studied today as a subset of political history or thought rather than the other way around; yet one

might plausibly argue that many Americans of the period did not think that their religious beliefs

grew out of their political thought.

To some degree during the late seventies to the early nineties, these two camps have

warred with each other. Since the early nineties till the present day this debate has died down,

although the truce is uneasy; there is no clear “third way” to which any large camp ascribes.

There are, of course, other major scholarly understandings, but these either hold that there was

not a developed political philosophy underlying the regime or such a political philosophy is not

the focus of their study. The heirs of the progressive scholars, “neo-progressives,” the new left,

multiculturalists, and Rogers Smith’s view of shifting inegalitarian and ascriptive ideologies, for

instance, all understand the founding as a product of power struggles, or factional will.45 These

scholars either do not focus on American political thought writ large, or, as Gibson aptly says of

Smith, they understand it as “centerless, amorphous, kaleidoscopic, and often self-contradictory

and incoherent.”46 Although it may be impossible or highly problematic to point to a single,

unifying body of political thought that gave the Constitution its form, given the basic facts of the

historical record, such a body of thought ought to be assumed before it is asserted to be non-

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existent. This dissertation assumes that there is an underlying political philosophy of the regime

in the sense that it seeks to discover one. Even to conclude that its object is severely fragmented,

does not exist, or is undiscoverable, one must go through the same sort of investigation as

proposed above (unless, as may increasingly be the case, one’s premises lead one to deem the

task as inherently impossible or futile).

The descriptions above are sharply drawn depictions setting in opposition two of the most

powerful conceptual categories developed by modern scholars over the last fifty years or so in

their attempts to understand the underlying political philosophy of the American founding. This

clean presentation of neat conclusions conceals intellectual difficulties in the complicated and

varied manner in which said conclusions are argued to by various figures. This chapter questions

the way in which the liberalism camp explains the notion of the public good in the ratification

debates.

Before the Consensus In order to understand the last half century or so of modern scholarship on the underlying

political philosophy of the founding that encompass the liberalism versus republicanism debate,

one must understood the ashes from which the both arose: the conscious neglect of such topics in

the earlier progressive era.

Political scientists such as Woodrow Wilson thought government was instrumental, an

ever-changing means to reflect and implement the ever-changing ends dictated by “the prevailing

popular thought and need” rather than a more static means to protect an accepted body of

individual rights and to promote permanent public goods.47 Historians like Carl Becker might

investigate such outdated ideas, but political thought was understood to be primarily the product

of political action.48 For Becker and others like him, the ideas underlying the founding were

ultimately understood to be based on a faith which had long since died out. One also sees this

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denigration of ideas as causal of action in the extended economic interpretation of that

touchstone of American political science literature reviews, Becker’s friend and associate in the

so called “revolt against formalism,” Charles A. Beard. It is often said, with good reason, that

the refutation of Beard was the start of the scholarly camp espousing liberal consensus. Beard

thus profoundly shaped the focus of the liberalism side of the republicanism versus liberalism

debate before its conception in the 1950s.

While many in the progressive camp did think that the Declaration and the early republic

may have begun in the democratic fashion they argued was needed in their own time, they

claimed that the Constitution jettisoned these salutary principles. Famously, as Douglas Adair

and others were to point out decades later, it was Beard’s understanding of American

government that led him to direct the attention of countless scholars, and ultimately America

itself, to the argument of Federalist 10 as indicative of the function and purpose of American

government. Whatever one thinks of Federalist 10, the economic mechanics Beard found in it

are not surprising given his denial of the primacy of ideas or thought over political action based

on economic self-interest. Although he was a much more complex thinker than he is often made

out to be (and like Becker, he modified his views over time), he made clear why such premises

enervate any understanding of a common good. If political thought is driven primarily by will or

individual desire for the sake of wealth or power, individuals who stand to gain can only speak of

a common good as a mere rhetorical device to cover their own interest. As Beard puts it:

Of course it may be shown that the "general good" is the ostensible object of any

particular act; but the general good is a passive force, and unless we know who are the

several individuals that benefit in its name, it has no meaning. When it is so analyzed,

immediate and remote beneficiaries are discovered.49

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For Beard, the common good seems set within the context of material or economic benefits and

is only a nominal entity whose real meaning is found in various individual interests. It is not truly

common nor objectively good.

Wilson, Becker and Beard do not comprise the sum total of their era, and many scholars

at the time disagreed with them on fundamental points. A traditional school of thought very

much alive at the time and too often unmentioned today understood the founding as the

culmination of the western political tradition as it passed through England. Wilson, Becker and

Beard even subscribed to various parts of this understanding. Yet as the progressive era evolved,

a dedicated, prominent and widely accepted school of thought seeking to explicate the founders’

political philosophy began to die out. The impact of this neglect of the fundamental ideas

espoused by the founding generation upon the last fifty or so years of scholarship can scarcely be

overstated, as the birth of more recent attempts to describe these ideas can be traced to a reaction

against the progressive era’s denial of their importance. The geography of the battle was thus

inevitably chosen by the progressive scholars, who for the most part focused on what they

viewed as the negative results of the founding in the context of their efforts to reform American

scholarship and government.

After America had weathered the Great Depression, throughout World War II and its

aftermath, the focus of the discipline of political science shifted, allowing for a revitalized

investigation of American political thought. Becker’s introduction to a reprinting of his volume

in 1941 stated that the rise of Hitler had “forced men everywhere to re-appraise the validity of

half-forgotten ideas, and enabled them once more to entertain convictions as to the substance of

things not evident to the senses.”50 There were occasional albeit increasing appearances of the

notion that a coherent set of ideas of the founding era were determinative of American political

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action during and surrounding the war years: texts like Gunner Myrdal’s An American Dilemma:

The Negro Problem and Modern Democracy.51 Although influenced by progressive scholarship,

Myrdal approvingly described a benign “American Creed,” egalitarian in nature, working itself

out over the course of American history for the good. Of course, Myrdal was not himself an

American or a political scientist, two facts which likely help account for his exception to the

general rule.

Consensus: Diamond and Kenyon Yet by the mid-twentieth century, at the onset of the cold war—although the progressive

paradigm was still alive and well—many turned towards understanding the success of a nation

that had become an unparalleled superpower. The growing sense among many American

scholars in middle of the century was that there was indeed an underlying political philosophy of

American government. The first heralded, major expression of this understanding is Louis

Hartz’s book, The Liberal Tradition in America, and his corresponding articles.52 Taken together

with the work of Richard Hofstadter,53 Douglas Adair,54 Martin Diamond,55 Forrest McDonald,56

Robert Brown,57 Clinton Rossiter,58 Cecilia Kenyon59 and many others who argued against

progressive scholarship, Hartz’s The Liberal Tradition in America marks the beginning of the

modern era of scholarship concerning the political philosophy of the founders. As many of the

progressives’ claims (especially Beard’s) were refuted or drastically moderated by these scholars

and others, a growing number of adherents of “liberal consensus” argued that the creation of the

Constitution was largely driven by political thought or ideology—principled ideas that could not

be simply reduced to economic or group interests.60 These scholars generally saw the founding

as an expression of Lockean political philosophy in which the principles and end of government

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revolve around the protection of the individual rights and property of the citizenry, for the most

part ascribing to some version of the summary given by Gibson above.

Since the view that the founding was a product of the tenets of liberalism is born in

refutation of the progressive thesis, it is essential to understand its point of departure from

progressivism. There is no dispute that Hartz had enormous impact; he is another landmark of

any serious literature review in the field. He exemplifies the tone of much of the “Lockean

consensus” or liberal interpretation of the American founding: part ambiguous acceptance, part

outright lamentation. This helps explain, in part, why the classical republican thesis would soon

be received glowingly by academics within the social sciences and humanities.

Unlike the tradition he broke from, Hartz unapologetically argues from the assumption

that ideas form action, yet the thrust of his argument explains American thought by informing the

reader what ideas were not present within it. In a sentence, his claim is that, largely due to the

lack of feudalism in the clean slate provided by the New World, “the master assumption of

American political thought” is “the reality of atomistic social freedom. It is instinctive to the

American mind, as in a sense the concept of the polis was instinctive to Platonic Athens or the

concept of the church to the mind of the middle ages. Catastrophes have not been able to destroy

it, proletariats have refused to give it up, and even our Progressive tradition, in its agonized

clinging to a Jeffersonian world, has helped to keep it alive.”61 The implication, or, perhaps

better stated, the foregone conclusion is that there is simply no such thing as a notion of the

common or public good in the thought of the founders or in the fabric of the American regime:

rather, the founders and everyone else sought to promote the atomistic interests of individuals.

In the wake of the Constitution the capitalist mythos—the commercial republic, or “Algerism”

after the Civil War—reigns supreme for Hartz. In fact, the founding generation was simply

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doing what came to them naturally after a long history of colonial understanding which largely

circumstantially, due to the fresh start the New World provided, caused them to simply assume

Lockean premises in ways impossible for Europeans due to the inherited institutional and

cultural baggage that Europe had to confront directly.

Like Becker, Hartz understood the philosophy undergirding America government at the

time of the founding as a faith, but instead of a faith that died in a few generations it was a faith

that still burned zealously in every American heart. Similar to Beard and many other

progressives, he thought what he understood to be troubling aspects of American society

(everything from commercial changes associated with the industrial revolution to red scares)

were inherent in an atomistic individualism present in the founding itself. Hartz pined for the

transcending of the very ideas he was ostensibly revealing as the all-encompassing philosophy of

America and lamented the fact that the progressives, in his opinion, never went far enough to

eradicate it.

The context in which Hartz’s thesis was born is made hazy as time removes us from the

context within which he wrote. Hartz’s lively quest to uncover the reason America seemed

impermeable to socialism, his fixation on the roots of red scares and “McCarthyism,” and his

urgent antipathy to what he repeatedly referred to as an irrational Lockean consensus has to be

read in his own frenetic words rather than whitewashed in scholarly summary to be fully

comprehended today. He saw what he understood to be the Lockean liberalism of America as an

all pervasive faith, a product not of reason, reflection or deliberation but rather the result of a

unique conflux of circumstances (again, predominantly the absence of feudalism in the New

World) that made America an anomaly, a freakish quirk of circumstance at his time in need of

correction rather than worthy of emulation.

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…after McCarthyism and a series of frustrations in world communication, there can be

no doubt that we are yearning again to crack the shell of ‘Americanism’: not in the

undisciplined fashion of the twenties, but on a higher level of national purpose and need.

We are still a long way off, despite some deep discontents in our academic life, from the

kind of social theory that will define the American experience in terms that are

meaningful for those who seek to transcend it.”62

This sort of manic animus is glaring in retrospect, and it reveals why one might question the

extremes of thought within the claims of the liberalism of the founding. Hartz wears his heart on

his sleeve, and he gives the distinct impression that his agenda is not so much to explain what

liberalism is as to question and transcend it. When criticizing the progressives and “iconoclasts”

of the twenties for not going far enough, for agreeing too easily to the New Deal—which also did

not go far enough for Hartz—and ceasing their criticism of the Democratic Party, Hartz says

mournfully that “the sad fact is that you cannot criticize the Republicans without criticizing the

Democrats too.”63 All sides are tainted, unable to transcend atomistic individualism, and “[t[he

outcome of the battle between intensified ‘Americanism’ and new enlightenment is still an open

question.” He wonders “whether a nation can compensate for the uniformity of its domestic life

by contact with alien cultures outside it…whether American liberalism can acquire through

external experience that sense of relativity, that spark of philosophy which European liberalism

acquired through an internal experience of social diversity and social conflict.”64

Hartz maintained that Lockean liberalism and its set of assumptions were pervasive and

causal of the way America always was, is, and likely will be unless they were questioned: unless

they were seen as idiosyncratic in light of comparison with other regimes. Hartz spoke for many

scholars when he argued that the founders ideas were peculiar, spawned in part from abnormal

accidents of geography and circumstance. More significantly, these ideas were still with us in

part on account of the same causes, causing us to be who we are: a state of being with which he

and many of his sympathetic readers were not altogether comfortable. Throughout the history of

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the liberal consensus camp that followed him, a long string of scholars have harbored similar

sentiments.

Long before Martin Diamond’s description of the “solid but low” American regime,65

many scholars from the late nineteenth century right up until his time would have tended to agree

with his second adjective even if they might have disagreed with the first. Diamond’s description

was novel at the time in that it claimed the founding was solid; many already agreed it was low.

The founding was either of no account due to irrelevance as in Becker; low due to base economic

interests and power struggles as in Beard; low due to false and outdated premises as in Wilson;

or low because of some combination of these factors. Progressives were (and are) inclined to say

the Constitution is not solid but rather a decrepit foundation in desperate need of radical reform,

whereas Hartz and others in the liberal consensus school sometimes suggest it is too solid or

solid enough, and fundamental reform is either impossible or undesirable.

Over time the consensus or liberalism school began to make positive arguments offering

a revivified view of the American founding that went far beyond merely refuting progressive

scholarship. Many thought it obvious that after a devastating civil war, near economic collapse,

and successful engagement in two world wars the American founding had turned out to be

“solid.” The question at hand was, “Why?”

This effort to refute Beard renewed interest in the texts of the ratification debates and

began an extended discussion of the ends of American government with considerably more depth

and focus than occurred in the progressive era. Martin Diamond’s landmark 1959 APSR article

entitled “Democracy and The Federalist: A Reconsideration of the Framers' Intent” is a good

early example of the fruit of that refutation. Diamond’s goal in the article is to demolish one of

the central progressive tenets: the notion that while the Declaration of Independence espoused

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true democratic principles, the Constitution betrayed these principles in favor of an elite

economic class and thus the revolution and the federal government it ultimately established

contradicted each other in spirit. Further, in part because he saw the Constitution as truly

democratic, albeit qualifiedly and prudently so, Diamond sought to disprove arguments like that

of Robert Dahl, who saw The Federalist Papers as largely irrelevant for modern American

political science.

In order to make his case, Diamond presented a positive argument based upon a close

reading of The Federalist Papers. In so doing, although he acknowledges both that The

Federalist Papers is not a philosophic treatise and that he is positing an uncertain and developing

opinion, he gleans a skeletal theory of the founders’ understanding of the ends of government

from an interpretation of the text. In stark contrast to Louis Hartz, his method consists in a

careful reading of the writings of the founders themselves; Diamond investigated the deeper

philosophic ideas at play within these writings. Yet, like Hartz, Diamond’s initial version of

consensus theory is also laden with lamentation.

For Diamond, although The Federalist talks about justice and happiness as the ends of

government, the words do not have the same meaning as they do in pre-modern political

philosophy. Instead, the meaning of happiness or justice as understood by The Federalist “seems

to consist primarily in physical preservation from external and internal danger and in the

comforts afforded by a commercial society.”66 One can presume that Diamond is saying that if a

common or public good existed for the government of the founders it was relegated to the realm

of shared self-preservation and the widespread possession of material goods. Diamond takes up

the topic of the ends of government explicitly:

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What is striking is the apparent exclusion from the functions of government of a wide

range of non-economic tasks traditionally considered the decisive business of

government.

So far as concerns those ends of government on which The Federalist is almost wholly

silent, it is reasonable to infer that what the Founders made no provision for they did not

rank highly among the legitimate objects of government. Other political theories had

ranked highly, as objects of government, the nurturing of a particular religion, education,

military courage, civic-spiritedness, moderation, individual excellence in the virtues, etc.

On all of these The Federalist is either silent, or has in mind only pallid versions of the

originals, or even seems to speak with contempt. The Founders apparently did not

consider it necessary to make special provision for excellence.67

Although the means of arrival are different, the conclusion is not as far removed from Beard and

the progressives as one might expect given the generalizations of literature reviews: ultimately,

the Constitution was concerned with satisfying material interests and self-preservation, and these

are primarily understood as pertaining to individuals. Granted, for Beard, the elite founders

sought to prevail in a contest of interests; whereas, for Diamond, the elite founders sought to

avoid allowing any one factional interest to prevail in the hope that the basic needs and comforts

of most individuals would be met (and hence the solidity of the system). While Diamond

disagreed with Beard and others about the status of the Constitution in regards to democracy, he

and others of his school did not fully reject the progressive critique of America.

Diamond is perhaps most famous for his interpretation of Federalist 10, no doubt led

there by the honored place of the essay within the galaxy of Beard’s economic interpretation.

Diamond’s interpretation has long since replaced Beard’s and still dominates academia and even

the larger culture. In Diamond’s first major publication on the matter he made very clear that he

too did not find the results of Federalist 10 to be altogether salutary:

Madison’s solution to his problem worked astonishingly well. The danger he wished to

avert has been averted and largely for the reasons he gave. But it is possible to question

now whether he did not take too narrow a view of what the dangers were. Living today

as beneficiaries of his system, we may yet wonder whether he failed to contemplate other

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equally grave problems of democracy, or whether his remedy for the one disease has not

had some unfortunate collateral consequences. The Madisonian solution involved a

fundamental reliance on ceaseless striving after immediate interest (perhaps now

immediate gratification). Tocqueville appreciated that this “permanent agitation . . . is

characteristic of peaceful democracy,” one might even say, the price of its peace. And

Tocqueville was aware of how great might be the price. “In the midst of this universal

tumult, this incessant conflict of jarring interests, this continual striving of men after

fortune, where is the calm to be found which is necessary for the deeper combinations of

the intellect?”68

It would be hard to exaggerate the extent to which such thoughts still resonate in elite and even

the popular understanding of American government.

As consensus theory gelled, the Federalists were understood to have the more convincing,

more realistic argument in the ratification debates—an argument primarily about the best means

to achieve a federal government that took the protection of individual rights relating to the basic

safety and commercial prosperity of its citizens as its overarching goal. Cecilia Kenyon argued

that the Anti-Federalists shared the same underlying principles and purpose of government:

…they shared a large body of political ideas and attitudes, together with a common

heritage of political institutions. For one thing, they shared a profound distrust of man’s

capacity to use power wisely and well. They believed self-interest to be the dominant

motive of political behavior no matter whether the form of government be republican or

monarchical, and they believed in the necessity of constructing political machinery that

would restrict the operation of self-interest…This was the fundamental assumption of the

men who wrote the constitution, and of those who opposed its adoption, as well.”69

Like Diamond and Adair, Kenyon began her investigation to a large extent as a refutation of the

progressive interpretation of the Anti-Federalists, arguing instead that the Anti-Federalists

“placed an even greater emphasis on the structure of government than did the founding

fathers…The Anti-Federalists wanted a more rigid system of checks and balances than the

Founding Fathers had provided.”70

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Consensus Developed The second generation of liberal consensus scholars spent a good deal of effort refuting the

classical republican thesis, and they did not abandon the underlying tenets of liberal consensus.

Over time, however, many of those opposed to classical republicanism interpretations have been

influenced by such arguments—if only by the mere fact that those opposed had to confront such

interpretations. Thus the overall effect of these historians on liberal consensus orientated political

scientists was not full blown conversion, but partial and segmented adaptation. The notion that

the Anti-Federalists and Federalists, or either group, were “classical republicans” has never had

monolithic support among political scientists as a whole, but in the process of critiquing the

reigning liberal consensus paradigm arising out of Bailyn, Wood, and Pocock, some scholars did

resurrect a new version of the progressive notion of fundamental opposition between the

Federalist and Anti-Federalist understandings of the principles and purpose of American

government—while others qualified or remade the argument for liberal consensus.

Herbert Storing

For instance, one of the most significant moments for Anti-Federalist scholarship was the

publication of Herbert Storing’s The Complete Anti-Federalist in 1981. The first and only

attempt to publish all the Anti-Federalist writings together, the first volume of the set—a

commentary titled What the Anti-Federalists Were For—is widely hailed as one of the seminal

works on Anti-Federalist thought. In an important footnote, Storing says:

In Gordon Wood’s view, the Anti-Federalists became fervent defenders “of the

traditional assumption that the state was a cohesive organic entity with a single

homogeneous interest at the very time they were denying the consequences of this

assumption.” Wood understands this traditional view, the ‘republicanism’ of the

Revolution, to be a secularized Puritanism aimed at securing a sacrifice of individual

interest to the common good. Creation 499, 418, and ch. 2. One of my own reasons for

turning to the study of the Anti-Federalists was the expectation that they defended some

such tradition; the Anti-Federalists seemed to be of interest as defenders of at least

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residual principles of premodern, preindustrial, preliberal worlds. Yet, without here

taking up the more complex question of how far such principles may in fact have been

involved in Revolutionary republicanism, they are strikingly absent from the Anti-

Federalist thought. The Anti-Federalists are liberals—reluctant and traditional, indeed—

in the decisive sense that they see the end of government as the security of individual

liberty, not the promotion of virtue or the fostering of some organic common good. The

security of liberty does require, in the Anti-Federalist view, the promotion of civic virtue

and the subordination (not, in the usual case, “sacrifice”) of individual interest to

common good; but virtue and the common good are instrumental to individual liberty,

and the resemblance to preliberal thought is superficial.71

Storing makes absolutely clear in this passage that he thinks liberalism underlies both Anti-

Federalist and Federalist thought. In agreement with earlier advocates of liberal consensus, he

also concludes that the Anti-Federalists “had the weaker argument” because they were trying to

“reconcile contradictions.”72

Yet, unlike Kenyon, for instance, and to a greater degree than perhaps any of those in the

Lockean liberal camp before him, his explication of the Anti-Federalists highlights the “reluctant

and traditional” aspects of their thought. In the wake of the debates over republicanism, Storing

pays extremely close attention to what he sees as the Anti-Federalists’ concern with virtue, the

common good, and civic education. “If…the foundation of the American polity was laid by the

Federalists, the Anti-Federalist reservations echo though American history; and it is in the

dialogue, not merely in the Federalist victory, that the country’s principles are to be

discovered.”73 It seems clear that Storing sees these “reservations” to be vestiges of a preliberal

political philosophy: “The Federalist solution not only failed to provide for the moral qualities

that are necessary to the maintenance of republican government; it tended to undermine them.

Will not the constitutional regime, the Anti-Federalists asked, with its emphasis on private, self-

seeking, commercial activities, release and foster a certain type of human being who will be

likely to destroy that very regime?” Whereas Kenyon and others of her era maintained that the

Anti-Federalists and the Federalists agreed about self-interest, Storing—in the second-to-last

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paragraph of his commentary—said “[t]he Anti-Federalists saw, although sometimes only dimly,

the insufficiency of a community of mere interest. They saw that the American polity had to be

a moral community if it was to be anything, and they saw that the seat of that community must

be the hearts of the people.”74

Storing modified the liberal consensus view of the Anti-Federalists. He argued that some

of their complaints were based on a non-liberal emphasis on the common good and that they

harbored doubts based on an older notion of civic virtue. He was one of the first liberal

consensus scholars to directly confront the tension in relation to modern categories of thought

that the mixed language of the ratification debates reveal. While both sides of the liberalism-

republicanism debate have drawn from Storing’s analysis, many have adopted a similar view,

finding remnants of republicanism amongst an overall shared liberalism.

The Problem While the debate between republicanism and liberalism has grown stale, it has resulted in

growing dissatisfaction with the two clear-cut modern categories in question, widespread

admission by many scholars that multiple traditions of thought influenced the founding era, and

various significantly altered presentations of the founding published by individual scholars from

within both camps. As Colleen Sheehan has written in her recent book, James Madison and the

Spirit of Republican Government:

Were they classical republicans or modern liberals? Were they allied more with the

ancients or moderns in the battle of ideas between the two conflicting philosophies? Or

did they achieve a synthesis of both, however witting or unwitting, however coherent or

contradictory such an amalgamation of ideas might be?

Realms of paper have been devoted to this debate by numerous scholars. Many have

concluded that synthesis theory must prevail, and some have determined that the debate

has been exhausted. But, as Alan Gibson has shown in his fine study and exposition of

this contemporary debate, "even if this [amalgam theory] approach is superior to an

either/or formulation, it raises as many questions as it dissolves." Among the issues that

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remain are whether the contemporary categories of analysis have clarified and improved

our understanding of the Founding...75

As we have seen, the history of the scholarly concepts of “liberalism” and “classical

republicanism” originate in research but are also born in opposition to other scholarly camps and

are often entangled with their scholarly authors’ view of the ills of modern day America.

Sheehan sums up a significant cause for discomfort with modern scholarship on this score:

“Madison and the other Founders did not make a distinction between republicanism and

liberalism.”76 Avid proponents of classical republicanism in some instances have gone much

further in modifying their opinions than the advocates of the liberal consensus school. Gibson

says:

...interpretations that ask whether the Founders' political thought was a species of

liberalism or republicanism impose analytic distinctions on eighteenth-century political

actors that those actors would not have recognized and did not accept. As Gordon Wood

has [recently] suggested, interpretations that judge the relative influence of republicanism

and liberalism on the Founders assume "a sharp dichotomy between two clearly

identifiable traditions that eighteenth century reality will not support." Statements such as

Wood's, which are common in this literature, make two interrelated points. They

recognize that liberalism and republicanism are at worst labels and at best analytical

constructs that contemporary scholars have fashioned to help simplify complex patterns

of thought.77

The problem with a “multiple traditions” approach in response to these difficulties,

however, lies in its ambiguity. While there is dissatisfaction with formerly popular categories,

such a realization of what the founding is not does not tell one what it is. As Gibson says, there

is no clearly established “amalgam theory,” and one is left to wonder if what is left is either

confusion or partisans of both sides crafting more careful arguments that pay eloquent lip service

to multiple traditions but at root are still firmly planted in the liberal or republican camp. In

varying degrees and manners, second generation liberal consensus proponents such as Thomas

Pangle,78 Paul Rahe,79 and Michael Zuckert80 all stop short of saying the founding was a

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completely modern enterprise or make various qualifications to such an assertion. Yet they still

understand the founders to have understood the purpose of government primarily as the

protection of individual rights, and any talk of the common good seems to be secondary or even

ephemeral. I will briefly take up each one of them in turn below.

Michael Zuckert

Michael Zuckert writes at length of the central importance of individual rights in the

political thought of the founding, and his extensive corpus on the topic contains little directly

concerning the notion of the public good. He argues that “[n]atural rights hold an obvious place

of high honor in the scheme of political thought put forth in the American Declaration: ‘in order

to secure these rights governments are instituted among men.’ The securing of natural rights is

altogether the end or purpose of legitimate government…” Yet, perhaps in a more nuanced and

integrated fashion than the earlier generation of scholars he from which he descends, he allows

that the “very fact of legitimate government proves that the various rights cannot be ‘absolutes.’

As Jefferson said in 1802, ‘Man . . . has no natural right in opposition to his social duties.’”

Thus the “rights of specific others as well as the public good, i.e., the genuine common needs of

the community, serve as valid limitations on one’s rights.” Still, the actual extent to which

Zuckert implies this integration between the public good and individual rights goes beyond what,

say, Diamond and Pangle would admit is unclear. Zuckert continues: “The most obvious case is

defense. Equally important, if less obvious, is what we might call a society’s ‘rights

infrastructure’—the pattern of social institutions and characterological types that makes rights-

securing possible.”81 Like many scholars with a similar focus of which he is roughly

representative, Zuckert does not give an extended analysis of the notion of the public good as

employed in the texts of the founding era. He seems to argue, however, that the term for the

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founding generation equated not to a unitary public good in the sense of older philosophical

traditions, but referred rather to the the establishment of a structure that promotes interdependent

private goods.

Thomas Pangle

Those who do analyze the matter more specifically, however, usually downplay or

denigrate its use in the rhetoric of ratification. Even as he pays tribute to Storing’s work, for

instance, Thomas Pangle goes further than Storing in characterizing the Anti-Federalists as

liberals:

But as Storing has demonstrated at length and in detail, Wood and other advocates of the

“classical republican” thesis only compound their errors when they try to wring out of the

Anti-Federalist writings an anti-liberal or anti-Lockean conception of republicanism. A

careful perusal of The Complete Anti-Federalist shows that the opponents of the

Constitution were, by and large, much more eager to recur to philosophic first principles

than were the authors of The Federalist Papers…in this appeal to ultimate grounds they

were more, not less, emphatically Lockean…they…offer, in summary after summary, more or less accurate and sometimes penetrating synopses of the key elements in Locke’s

theory of justice, citizenship, and government…82

Regardless of the extent to which this statement is true or false, Storing did not go out of his way

to claim that the Anti-Federalists were more Lockean than the Federalists. In fact, as we have

seen, Storing went to great lengths to emphasize their reluctance to embrace a new, more liberal

government.

Pangle admits, however, that Publius “often” speaks of the common good and justice.

Yet Pangle sees Publius’ use of these terms in a similar manner, if more refined and specifically

Lockean, to the early writings of Martin Diamond:

It is moderation, frugality, and industry in the new sense, i.e., enlightened and sober

individual self-interest, that the new Publius counts on as the root of the citizenry’s

respect for law and devotion to or sense of justice. When Publius speaks (as he often

does) of the “public good,” or the “common good,” and of justice, he generally seems to

have in mind, apart from defense, the commercial prosperity of America as a whole, and

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the protection of individual rights, especially rights to the use of “different and unequal

faculties of acquiring property.” The Federalist certainly does not disdain, but neither

does it rely heavily upon, a sense of civic solidarity, a deference for superiors (in age or

virtue or knowledge), or a tradition-imbued reverence for law.83

Pangle thus goes as far as or farther than any of the original scholars of liberal consensus in his

argument for the overwhelming influence of Locke on the Constitutional period. Pangle argues

that the founders, in using Locke’s ideas, established a distinctly Lockean and modern regime

whether or not they understood Locke fully and despite “traditional currents” which he spends

little time explaining. The bulk of The Spirit of Modern Republicanism is dedicated to explaining

Lockean political philosophy.

It is telling that while Pangle critiques Hartz as “severely flawed” on account of his

limited understanding of Tocqueville and Locke, Pangle also lauds him for his ability “to

appreciate the modernism that has been the chief inspiration of American republicanism from its

beginnings, despite some strong countervailing traditional currents.”84 Like Diamond, Pangle

sees ample reason to regard this modernism in a negative light: “I am inclined to believe that our

regime and tradition might well be judged a noble, if flawed, republican experiment…we may

have to diagnose the dispiriting symptoms of disintegration all around us as substantially rooted

in the original deficiencies of the modern republican experiment.”85 Pangle says elsewhere that

he believes that “[p]olitics at its fullest is the attempt to understand and to foster the common

good: justice.”86 Thus Pangle advocates moderating the influence of Locke, suggesting the

“rescuscitation of, and building on, those specific elements of classical republicanism that are

most incontrovertibly present—even if in unobstrusive, and hence forgotten or submerged

ways—in the original aims and reflections of major participants in the founding of the United

States.”87 He finds such elements, and a place for breathing life into them, through the founders’

and his own ideas (drawn from ancient philosophy) of what education ought to be.

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To take a more specific example, Pangle’s argument above for the liberalism of the Anti-

Federalists relies on one secondary source and an extensive list of citations from Anti-Federalist

writings without any further explication.88 Pangle’s secondary source is Storing; while Storing

cites the actual writings of the Anti-Federalists as much or more than any other commentator,

Storing himself does not make an extended textual argument other than the footnote cited above

that directly addresses their liberal or republican credentials. Pangle says “Time after time, the

Anti-Federalist writers draw back to state their theoretical starting point, characteristically with

phrases like …‘I dare presume, it is not controverted, at least in this country . . .’” and then

proceed to summarize Lockean political philosophy.89 There is no question there is a great deal

of truth to what Pangle says. Even a cursory examination of the Anti-Federalists and Federalists

reveals that they use language very similar to that of Locke. Yet his argument does little to

explain why these same Federalists and Anti-Federalists speak in terms associated with “classical

republicanism” as well.

Consider the passage from the Impartial Examiner cited by Pangle (“I dare presume, it is

not controverted, at least in this country…”) in context:

…that persons forming a social community cannot take too much precaution when they

are about to establish the plan of their government. They ought to construct it in such a

manner as to procure the best possible security for their rights;—in doing this they ought

to give up no greater share than what is understood to be absolutely necessary:—and they

should endeavor so to organise, arrange and connect it’s several branches, that when duly

exercised it may tend to promote the common good of all, and contribute as many

advantages, as the civil institution is capable of. It has been before observed that the only

just origin of civil power is a contract entered into by all the people for that purpose.—If

this position be true (and, I dare presume, it is not controverted, at least in this country)

right reason will always suggest the expediency of adhering to the essential requisites in

forming that contract upon true principles.90

Whether or not this is ultimately an example of boilerplate liberalism, it must be noted that the

position that “is not controverted” is that “the only just origin of civil power is a contract entered

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into by all the people” for a certain “purpose” laid out above. That “purpose” appears to be

twofold, much like Federalist 10 and every author considered in this dissertation describes: both

that the “persons forming a social community” who establish a government should “procure the

best possible security for their rights” and “endeavor so to organize, arrange and connect it’s

several branches, that when duly exercised it may tend to promote the common good of all, and

contribute as many advantages, as the civil institution is capable of.” What does Impartial

Examiner mean by these “advantages” and the “common good of all”? If all he is referring to is

the maximization of liberty for each individual, why does he speak of the common good and

certain advantages of government that are distinct from the protection of individual rights?

The Impartial Examiner also asserts that it “is a true maxim” that those in government

“ought to observe two essential rules: first in having no other view than the general good of all

without any regard to private interest; and secondly, to take equal care of the whole body of the

community, so as not to favor one part more than another.”91 He goes on to argue against the

structure of the proposed constitution because he thinks its adoption would lead to the violation

of both rules. As to the first rule, referring to the colonies, he says “For being different societies,

though blended together in legislation, and having as different interests; no uniform rule for the

whole seems to be practicable; and hence, it is to be feared, that the general good may be lost in a

mutual attention to private views.”92 Is he speaking here of the “general good” as merely an

interdependent collection of individual goods? Isn’t he making precisely the opposite point: that

“private views,” which one supposes involve the desire for private goods, can cause the “general

good” to be lost? In fact, is he not pointing out that various societies have communal interests

for their general good that transcend legislation’s ability to alter them? At least, his point is not

that the general good is not the goal of government, but rather that it cannot be achieved for all

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the states together in the manner in which the constitution attempts. For the same reason, the

second rule (“not to favor one part more than another) is also violated:

From the same causes we may lament the probability of losing the advantage of the

second rule; for it may be expected, in like manner, that the general care of the whole will

be lost by the separate endeavors of different legislators to favor their own states. So long

as mankind continues to be influenced by interest, the surest means of effecting an union

of counsels in any assembly is by an union of interests. Now, if it be considered that it is

this concert, that it is this union in promoting the general good, which alone can preserve

concord in this great republic, and secure it success and glory,—unhappy will be the

situation of America, if she once precludes the beneficial effects of such a good

understanding….93

This second “maxim of free government” will likely be violated by the proposed constitution, for

instance, on account of the way in which the document deals with taxation:

A diversity of interests will produce a diversity of schemes. Thus each state, as it is

natural, will endeavor to raise a revenue by such means, as may appear least injurious to

its own interest: a source of dissention manifestly detrimental to that harmony, which is

necessary to support the confederation.94

He believes that his method of dealing with needed tax revenues (allowing the state legislatures

to each vote on how best to satisfy national budgetary needs) would “tend to promote a spirit of

concord between all the parts of this great community.”95 Note that what he rejects is a central

authority with the power to enforce decisions for the public good at the national level, and this is

so because of his fear that true agreement will not be reached amongst all the parts and the policy

enforced will not be truly good for many of the parts.

Similarly, without the right sort of representation the Impartial Examiner argues

…that reciprocity of common interest between the legislature and the bulk of the nation,

which should be the soul of republicanism, and are the chief objects of a free, unbiased

and general representation, will not exist in this kind of government. How then can it be

expected that a strict regard to the good of all will mark the public proceedings? Who

can imagine that such a body will regularly devote their labors to promote the happiness,

prosperity and freedom of a community…”96

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Note that, in the same manner in which the participants from both sides of the ratification

debates universally speak, “happiness” is here referred to as an end of government no doubt

related to but also, at least linguistically, distinct from prosperity and freedom. Note also that

happiness, prosperity, and freedom are all said of a “community” and not individuals. Once

again, he fears that “a strict regard to the good of all” will not take place.

The meaning of Impartial Examiner’s many discussions of individual rights and self-

interest taken in context is not obvious. Perhaps, one might say, as Pangle says of Publius, that

all the Impartial Examiner really means by the general good in the above statements is “the

commercial prosperity of America as a whole, and the protection of individual rights, especially

rights to the use of ‘different and unequal faculties of acquiring property.’” If this is so, why is it

not obvious that his talk of the general good is merely a synonym for individual rights and

commercial prosperity? This is by no means apparent from the text, which speaks of the

common good of society as a distinct notion from, albeit related to, that of individual rights and

economic well being.

Clearly, then, one might wonder the extent to which the sort of arguments and their

accompanying language highlighted above is compatible with what Pangle says of Locke. If it is

incompatible, and a contradiction, one might wonder why this sort of language was so pervasive

and seemingly never recognized as a contradiction at the time. In sum, if the Anti-Federalists

were rife with “agonizing contradictions” as Pangle affirms with Storing, so his own argument

might be unless supposed contradictions in texts like those above are directly confronted and

explained.

It is evident that at many points the Impartial Examiner gives a summary of political

philosophy that sounds Lockean. The intermittent use of Lockean language might be considered

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evidence, but it is not proof that the Anti-Federalist embraces the Lockean principles laid forth in

Pangle’s painstaking analysis of the English political philosopher. Pangle fails to demonstrate a

connection between Locke’s political theory as Pangle understands it and the entirety of the

Impartial Examiner’s argument.

Paul Rahe

Paul Rahe argues that the founding generation did not understand the end of government

in classical terms, as, say, Plato did (ordered to the promotion of virtue or consisting in the art of

caring for souls): “The patriots of 1776 may have been eloquent in the praise they lavished on

the common good, but-like the framers of 1787-they consistently defined that common good as

the defense of their own lives, liberty, and property. The Anti-Federalists celebrated virtue in

precisely the same spirit.”97 Rahe continues to cite the Anti-Federalist Agrippa:

“Massachusetts’s Agrippa was perhaps more plainspoken than most opponents of the

Constitution, but he revealed what was virtually a universal assumption when he took as his

fundamental political premise the fact that ‘no man when he enters society, does it from a view

to promote the good of others, but he does it for his own good.’”98

Rahe’s rich and daringly capacious work serves as an attempt to prove that a deep

division between ancient and modern philosophy can be seen historically in ancient and modern

republics as well as in the writings of philosophers such as Aristotle and Locke. While Rahe

admits the extent to which the common good was spoken of by the founding generation, and

while throughout his works he does not discount the influence of classical thought on the

founders, he implies here that this speech was often rhetorical only, and perhaps not indicative of

anything but modern thought masquerading in classical language. Rahe is aware of the stale

nature of the liberalism versus republicanism argument, which his work seeks to transcend, and

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he is no doubt right about Agrippa’s emphasis. Agrippa’s essays are at various points doubtless

incompatible with the “classical republican thesis.” Yet it seems he intends here to use

Agrippa’s words as a proof of the essential “modernity” of the founding generation, the

implication being that they thought the self-interest of individuals guides individuals into a social

contract theory of government ordered to individual enjoyment of life, liberty and property.

One would assume in the context of Rahe’s argument that this quote entails an understanding of

a state of nature in which autonomous individuals contract with each other for the sake of their

own comfortable self-preservation rather than any notion of the public good.

A close examination of the quotation from Agrippa, however, reveals several deeper

questions that bear directly on the thrust of this dissertation. Rahe implies that since the “patriots

of 1776” and the “framers of 1789” understood the common good merely “as the defense of their

own lives, liberty, and property” their understanding was deficient in terms of the older traditions

of political philosophy, or that they rejected this tradition. Rahe’s formulation in that passage

comes oddly close to imputing the sort of definition of the common good as described by Charles

Beard to the founders. The strength of Rahe’s assertion depends on this definition being the sole

and complete extent of the patriots and framers understanding of the common good. For what

possible understanding of the common good would necessarily exclude the idea that it could ever

entail the presumably just defense of one’s own life, liberty and property in common with others

in response to shared threats against all? If the common good could not entail such a defense,

how could it properly be labeled “common”? How could it be “good” if for many it would not,

in fact, be good?

The passage from Agrippa that Rahe cites does not prove that Agrippa’s true notion of

interest necessarily forecloses the existence of a common good; the final chapter of this

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dissertation explains the context of the passage in terms of federalism. More broadly, however,

one could ask simply on the basis of the quotes above why Agrippa might not be arguing that the

Constitution will set up a common good that is not common for the state of Massachusetts.

Agrippa might think that local interest, or the consideration of one’s own good, must be related

or lead into one’s participation in a society or government and, perhaps, any realistic notion of

the common good. Considered this way, his argument could be a powerful one: if one does not

see one’s own good as bound up with the common good, then why would anyone sacrifice for it?

Does the common good require an act of utter self-abnegation, and when does this become self-

immolation? Where does one draw the line? Must not the common good be related in some way

to individuals? After all, if the common good is truly common, it must extend to each person

that is part of the community in question—at least some part of it to some extent—and be good

for them individually, even if only experienced as shared among them all. If not, how could the

common or public good be considered common or public, never mind good? What, exactly,

about this notion of entering society for the sake of one’s own good is particularly indicative of

early modern political thought? I will explore some possible answers to these questions in

chapter ten.

Conclusion Leaving aside the arguments of the proponents of classical republicanism, to be discussed in

detail in the next chapter of the dissertation, there are serious questions left unanswered by the

liberalism school. Pangle, Rahe, Zuckert and many other preeminent scholars who have done

more than many academics to probe the thought of the period could possibly offer powerful

responses to this short critique and even the worth of this investigation on the basis of

widespread evidence and longstanding arguments. Yet this does not change the fact that even

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accepting their dissatisfaction with the proponents of classical republicanism, arguments for

liberal consensus often give cause for questioning the clean cut pronouncement of the founding

as modern or a product of liberalism as it is generally defined in the literature. Comprehensive

attempts to prove that liberalism was the underlying philosophy of the founding do not often

directly address in extended fashion the words of the founding generation that seemingly oppose

their position. Given that even a brief investigation of the subject such as the one above suggests

that there is real ambiguity in the writings of the ratification debates in terms of modern

categories of analysis, what, exactly, did the participants in the ratification debate mean by the

concept?

. The danger, as virtually everyone writing on the subject now agrees, is summed up well

by Gibson:

…only an analysis that rejects the reductionism inherent in an either or formulation really

takes seriously the possibility that the Founders were reflective and creative agents who

not only adopted but also reformulated political ideas. Scholars who adopt either a

liberalism or a republicanism formulation are inevitably and unavoidably led back to the

belief that the political thought of the Founders is derivative. It may be derivative of the

"new science of politics" of Hobbes, Locke and Hume or of classical republicanism, but

it is nonetheless derivative.99

This is a powerful critique. If any respect is due to the founders, they must be taken seriously on

their own terms. Of course, much lip service as well as actual care is paid to this principle by

virtually every scholar writing on the founding era, but deeds are much more difficult than

words. The structure of the classical republican argument explicitly arises from a philosophy of

language and a pre-established historical narrative of ideas regarding republicanism, as we shall

see, into which the founding era was fitted. Much of the liberalism argument, on the other hand,

is clearly influenced by a distinction between ancient and modern philosophers that ought not be

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imposed upon the founding generation without taking into consideration the content and context

of their words and deeds.

For if our understanding of political philosophy does not fit that of the founding

generation, we ought not, of course, to immediately start sifting their words through our own

philosophical framework and begin speaking of tensions and contradictions. One must first

assume they had a coherent political philosophy to some degree and seek to uncover it, giving

them the benefit of a doubt. This rule of interpretation is especially apt given the continuing

success of what they created. In the final analysis, they were doers rather than thinkers. Their

magnum opus was an actual government that still exists today rather than abstract works of

political philosophy. Their thoughts (often by their own admission) were formed by practice

more than theory. To a great extent they were not writing treatises in the vein of Aristotle’s

Politics but persuasive texts aimed at erecting a particular regime for a particular people in a

particular time and place. To read the founders carefully, then, one must assume they came to

their thoughts on government from the induction of experience just as much as (or, more likely,

far more than) their reading of books. Given this fact and the obvious success of the regime they

established that we the living inhabit, it is somewhat illogical, not to mention ungrateful, to

accuse them of holding contradictions if their thought does not fit into our theoretical conceptual

categories. We owe them a fair hearing given that, unlike most political philosophers, they

actually created a successful government that has managed to stay intact for over two centuries.

One of the central problems of the literature on the liberalism of the founding era is that

from its inception it has sought to prove itself by means of a unified theory of the founding era,

and its method has been to rush to judgment to correct large, sprawling theses such as Beard and

progressive scholarship generally asserted. Further, the scholarship of liberalism generally

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rejects the anti-philosophical method of progressive scholarship, which eschewed philosophic

analysis of ideas. While this might be regarded as a salutary development, one can see in

Diamond a rush to place the founders within the larger framework of political philosophy in a

manner that leads very quickly to very broad and ultimately tenuous conclusions.

The problem of method looms large in such studies, as these are not simply works of

political philosophy, but efforts that seek to employ political philosophy to understand historical

reality. One must get both history and political philosophy right, and getting them both right

amounts to a tricky combination of archeological type digs into intellectual history along with an

understanding of political philosophy. Thus there is a major problem of method on two

extremes. One might attempt to prove a large, sprawling thesis by synthesizing an enormous

amount of textual evidence. In such cases the reader is often forced to rely upon the author’s

interpretation and textual selection; the truth of the thesis’s application to any particular text

remains in many ways unproven the further away one moves from a close analysis or

commentary on a specific text. On the other hand, attempts to wring abstract, universal theories

of political philosophy from a myopic focus on a single body of text such as The Federalist

Papers might easily jump to philosophic conclusions too far afield too fast without considering

the larger context within which they are embedded. Without a solid understanding of the

political, historical context of such a text one cannot claim to fully understand its meaning,

which would be necessary in order to make a serious case as to its underlying political

philosophy. Pangle and Rahe might be correct in their various interpretations, and Zuckert might

be correct in his focus—but to prove their case as concerns the common good they would have to

deal with the evidence against their theses in the texts in question and consider that evidence in

historical context.

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Chapter 3: Republicanism and the Public Good

Introduction By the time the liberal consensus theory had taken hold, having largely refuted progressive

scholarship in the minds of many political scientists, a new challenge arose in the late sixties and

early seventies. In the midst of the increasing study of the texts of early America, historians like

Bernard Bailyn,100 Gordon Wood,101 and J.G.A. Pocock102 published significant intellectual

histories and made a number of arguments substantially revising both progressive and Lockean

liberalism historiography, casting the American founding in an entirely new light. They claimed

that during the revolutionary period Americans shared a fully formed “classical republican”

ideology, inherited from the British Whigs, that held up civic virtue and the public good as the

end of government. Like the progressive historians before them, they profoundly influenced the

thought of many political scientists as well as the study of the humanities as a whole throughout

the American academy. For those who saw classical republican ideology as more desirable than

liberalism the moment was especially significant.

At its high point the classical republican synthesis maintained that both sides of the

ratification debate drew from republicanism, which ultimately won out and carried on into the

Jacksonian era. For instance, Robert E. Shalhope, in an oft-cited review of the literature,

complained that Kenyon “did not see that both the Federalists and antifederalists drew their ideas

from a common source…she failed to inquire into what caused the Federalists to deviate from

the original mode of thought while the antifederalists clung so desperately to the ways of the

past.”103 Similarly, Shalhope criticized progressive historian Jackson Turner Main because he

“failed to attain a full understanding of republicanism by making it the sole possession of one

faction [the Anti-Federalists] instead of an ideology that permeated all of American society.”104

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James H. Hutson also argued for “consensus” between the anti-federalists and federalists on

“broad political precepts” and “dispute over implementation and emphasis” because he too

thought they both drew from “classical republican” thought. Still, Hutson was more interested in

highlighting the differences between Federalists and Anti-Federalists than he was in flushing out

the supposed sameness of their political principles. Like many proponents of the classical

republican synthesis, he saw the Anti-Federalists as proponents of civic virtue and the common

good in ways that the Federalists were not.105

The first thing one must note about the classical republican argument is that, like the

arguments of the proponents of liberalism, it grew out of a rediscovery of the richness of

American political thought—a return to the original sources—and the assertion of the influence

of thought in human affairs. Although, as will be discussed below, Bailyn and Wood stop short

of asserting that thought is prior to human action or can be abstracted from historical

circumstances, they each presented the arguments of the founding generation of Americans and

their underlying premises to the world.

Bernard Bailyn and Gordon Wood The Ideological Origins of the American Revolution was notable in that, as the title suggests, it

both explicated “ideology” as expressed by Americans in the texts of the period and found what

was expressed in those writings to be causal of Revolution as opposed to the economic and other

impersonal or sub-rational forces that reigned supreme in other schools of historical scholarship.

Bailyn begins his first chapter with a paragraph from a letter from John Adams to Thomas

Jefferson in which Adams answers the question, “What do we mean by the Revolution?” Adams

asserts that the war “was no part of the Revolution; it was only an effect and consequence of it.”

Rather, “[t]he Revolution was in the minds of the people, and this was effected, from 1760 to

1775” (emphasis mine). On this basis, Adams gives some advice to future historians as he goes

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on to suggest that “[t]he records of thirteen legislatures, the pamphlets, newspapers in all the

colonies, ought to be consulted in that period to ascertain the steps by which public opinion was

enlightened and informed…”106

Besides writing the landmark Creation of the American Republic (which takes Adams’s

advice above and applies it to the 1780s) along with many other major works over the last forty

years, Gordon Wood, one of the many Pulitzer Prize winning and otherwise accomplished

students upon whom Bailyn has had a profound effect, has written a stream of influential book

reviews and articles for The New Republic and The New York Review of Books. Many of these

serve as informal literature reviews, and they often include valuable insights into the republican

argument. Nearly thirty years after Bailyn’s book was printed, in a book review of Theodore

Draper’s A Struggle for Power: The American Revolution,” Wood said that the majority of

secondary works Draper “cites were written during the first half of the twentieth century--works

by Charles M. Andrews, Arthur M. Schlesinger Sr., George Louis Beer, Lewis Namier and

Lawrence Henry Gipson.” Draper’s use of “these early twentieth-century historians is very

revealing” in that “[i]t suggests an affinity of approach, a similar conception of human behavior--

one that emphasizes underlying drives and forces and plays down the role of ideas.”107 As

opposed to this older scholarship, “[m]ost of the scholarship on the American Revolution written

since 1950 has focused on the importance of ideas in bringing it on,” whereas Draper “apparently

does not believe that ideas, or the meanings that people give to their behavior, are of great

significance in explaining events.”

For Draper, as for many early twentieth-century historians influenced by Marx, Freud and

behaviorist psychology, ideas are epiphenomena. They are symptoms, not causes; and

they do not count for much in the determination of human events. For Draper, ideas and

power are separate elements: ideas exist on the surface of life, but power is one of those

"large," "deep" "forces" that make things happen…

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For Draper, the Revolution was the consequence not of "intellectual exercises between

rival groups of ideologues," but of "something of longer range and deeper significance."

He often goes out of his way to stress that "no ideological factors entered into" the

controversies that the colonists had with their governors or with the home government.

Even at those moments when ideas may have been important, moreover, they were only

conjured up to meet the particular needs of an "elite [that] managed to hold on to its

leadership and directed the Revolution where it wanted it to go." In fact, no ideas at all

were required until the very eve of the Revolution. "If power, not ideology, was driving

the colonies on to their appointed breakaway," Draper writes, "self-awareness was not

needed until the very last stage of the process."

Draper thus has little patience with seeing the Revolution either as the result of a

consistent struggle over constitutional principles, in the way that Edmund S. Morgan did

in the 1950s, or as the consequence of a long-existing and explosive radical ideology, in

the way that Bernard Bailyn did in the 1960s. 108

The last line of Wood’s review hearkens back to his teacher’s opening quotation from John

Adams in Origins: “Theodore Draper's argument can account, at best, only for the American war

of independence. What it cannot explain is the American Revolution.”109

The republican thesis is rooted in the study of the American Revolution. Even though

they spent a good portion of their careers incorporating social and cultural history into their

work, Wood and Bailyn make a point of following Adams’s advice. The origin of Origins was

Bailyn’s introductory chapter to the large collection of revolutionary period pamphlets he edited;

as Wood describes it, the entirety of his own career has been spent studying the period and

Creation is clearly based in a decade of marinating in an even more expansive collection of early

American documents. As Bailyn read through the literature, he “began to suspect that they meant

something very real to both the writers and their readers: that there were real fears, real anxieties,

a sense of real danger behind these phrases, and not merely the desire to influence by rhetoric

and propaganda the inert minds of an otherwise passive populace.”110 In other words, early

Americans may have meant what they said.

Wood’s explanation of the American Revolution, however, from the very start of his

career became an explanation for the creation of the American Republic itself. His

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understanding of the essence and purpose of the Revolution seemed to directly contradict the

tenets of Lockean consensus. As he put it: “The sacrifice of individual interests to the greater

good of the whole formed the essence of republicanism and comprehended for Americans the

idealistic goal of their Revolution.”111 This view was opposed to monarchy and aristocracy in

the sense that Americans saw those forms of government as providing only for the good of a few.

“To eighteenth-century American and European radicals alike, living in a world of monarchies, it

seemed only too obvious that the great deficiency of existing governments was precisely their

sacrificing of the public good to the private greed of small ruling groups.”112 In the minds of the

founding generation, monarchy and aristocracy considered as forms of government were flawed

in that the many had to trust the few to act virtuously without guarantee, and history had revealed

this trust was repeatedly violated. Yet republicanism was no magic bullet. “In a monarchy each

man’s desire to do what was right in his own eyes could be restrained by fear or force. In a

republic, however, each man must be persuaded to submerge his personal wants into the greater

good of the whole” and it was “[o]nly with a public-spirited, self-sacrificing people could the

authority of a popularly elected ruler be obeyed…” This form of government was in some sense

for more demanding of the individual than a monarchy or aristocracy as it required “each man”

and not just one or a few men, to put the “greater good of the whole” first before their “personal

wants.” This self-sacrifice is how Wood defines virtue: “This willingness of the individual to

sacrifice his private interests for the good of the community—such patriotism or love of

country—the eighteenth century termed ‘public virtue’…”113 Thus republicanism required each

citizen to be virtuous, and Wood consistently repeats and returns to the willing sacrifice of the

individual for the greater good as the defining characteristic of virtue.

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As Steven Hayward points out, “Wood defines virtue simply as submission to the public

good—that's why it ‘obliterated the individual.’ In other words, he collapses the classical virtues

of individuals—wisdom, courage, justice, moderation—into a crude notion of civic virtue.”114

Hayward’s critique is substantive. From Socrates to Aquinas, the political philosophy of the

west did not define virtue as Wood does; roughly speaking, in the classical philosophy of

western political thought from the ancient Greeks through the longstanding influence of

Christianity, virtue—although certainly related to the common good—referred directly to

universal habits that fulfill individual human beings and allow them to attain happiness. Wood,

however, is not trying to account for earlier philosophic notions but to explain what Americans

believed in the eighteenth century. He would no doubt maintain that his definition of virtue and

the public good is drawn from their words. Is it?

Whereas the liberalism argument generally moves within an understanding framework of

the thought of philosophers across and outside of history, and many within it renounce

historicism and all its works and promises, the republicanism argument arises out of historical

analysis, generally stopping short of acknowledging any universal understanding or influence of

ideas outside of history. If the liberalism school can be caricatured, no doubt to some extent

justly, for inserting cribbed citations of the founding period into sweeping accounts of the

thought of great political philosophers, the republicanism school can be justly caricatured in

reverse. Wood’s most famous work is practically strung together by the words of the founding

generation, and he and Bailyn scrupulously avoid taking these words outside of the swirling

currents of historical context and onto the dry land of any sort of clear philosophic foundation.

Bailyn says “the pamphleteers, essayists, and miscellaneous commentators” he helped present to

the world, “were active politicians, merchants, lawyers, plantation owners, and preachers, and

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they were not attempting to align their thought with that of major figures in the history of

political philosophy whom modern scholars would declare to have been seminal.”

Similarly to proponents of liberalism, however, in response to criticisms over the years,

Bailyn and Wood have tempered the claims of republicanism. Bailyn says that, on the other

hand, the early Americans he refers to above “did not think of themselves as ‘civic humanists,’

nor did I describe them as such in attempting to characterize their thought. They would have

been surprised to hear that they had fallen into so neat a pattern in the history of political

thought.”115 Wood added a telling preface to Creation 1998: “It is important to remember that

that the boxlike categories of “republicanism” and “liberalism” are essentially the inventions of

us historians, and as such they are dangerous if heuristically necessary distortions of a very

complicated past reality.”116 In fact, “[i]t is a mistake to argue about the transition from

liberalism to republicanism in large abstract terms…Such ‘paradigms’may be helpful in

organizing the details of the past, but we historians need to be wary of their capacity to distort

what actually happened.”117 Yet despite his admission that he “probably contributed my mite to

this distortion of past reality”118 and that he “probably would treat [republicanism] differently” if

he wrote the book now,119 Wood does not repudiate the heart of his thesis. In sum, he admits

that the process of change towards “liberalism” was in place even before the Revolution while

similarly positing that “republicanism” lasted well beyond the adoption of the Constitution. In

effect, he smudges the sharp edges of his earlier work without denying its central claims.

Paul Rahe describes Wood’s method at its worst as a “failing” which “derives from the

species of intellectual historicism which links his work with that of his teacher, Bernard Bailyn,

and which renders it almost indistinguishable from the linguistic historicism of J.G.A. Pocock,

Quentin Skinner, and the other adherents of the so-called Cambridge School.”120 As James

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Ceaser says, “[t]he Republican historians' general theory is that history is very much influenced

by ideas. But quite unlike the Liberal approach, Republicans like Gordon Wood and J.G.A.

Pocock argue that people rarely choose their ideas; rather, people are constrained by a set of

ideas or a ‘language’ that they inherit, which shapes how they view the world.”121 Hence,

Bailyn’s book refers to the “ideological” rather than the “intellectual” or “philosophic” origins of

the American Revolution. Note that in the review of Draper cited above, Wood offers a modern

definition of what ideas are. Recall that he says that Draper “apparently does not believe that

ideas, or the meanings that people give to their behavior, are of great significance in explaining

events” (emphasis mine). This is a far cry from asserting clearly that ideas can be causal of

human action; it is, rather, reflective of a very different understanding of what the founding

generation and traditional western understood ideas to be, either in themselves or as they related

to human action. Ideas for Wood are not necessarily derived from reality, but are instead

inherited from others as the means by which we account for our own behavior and thus, for

Wood, in some sense ideas seem to be largely the creation of human beings. Although ideas are

“of great significance in explaining events” the precise nature of that significance, for Wood,

does not seem to be related to the traditional understanding of man as a rational animal; thus the

role of ideas in human action is ambiguous in his thought.

As his own words quoted above reveal, Wood sees himself in opposition to those who

posit large scale –isms or historical currents as the cause of human action, and as Ceaser says,

Wood does assert that “history is very much influenced by ideas.” Yet Wood is also leery of

outright ascribing causality to human thought. For Wood, “ideology” seems to relate to human

beings in a rather grey area of causality somewhere between abstract ideas or syllogisms at one

extreme and sub-rational desires or abstract, large scale, and impersonal historical change on the

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other. To some extent Wood himself acknowledges this lack of clarity, which no doubt he thinks

reflects the reality of human thought and action. He says, for instance, that Ralph Lerner “is not

entirely wrong when he suggests that the ideas the ideological historians write about often

‘remain strangely evanescent,’ somehow not entirely the consequence of ‘the studied intentions

of the thoughtful’ and somehow not entirely under the control of those who express them.”122

Rahe says Wood is “splendid” when he deals with intellectual history in action—“the

debates…concerning the political architecture proper for a modern republic, with the calling of

the Federal Convention, and with the framing and ratification of the Constitution.” In the central

portion of Creation, Rahe says, “one can see Wood treating statesmanship and human reflection

at the highest level with something approaching the respect that it deserves. When faced with

genuine grandeur, to his very great credit, he simply cannot help himself.” Yet the result of the

ambiguity of his philosophy of history, according to many of his opponents, as succinctly stated

by Rahe, is that since Wood and others of his school “resolutely treat argument as ideology,”

they “are destined to discount the significance of argument and to misapprehend the nature of

politics.” Thus “[i]n general, in his work, Wood fails to weigh the relative significance of

pronouncements, treating everything said, whether public or private, whether official or partisan,

as equally significant.”123

Wood’s Method Examined “In a republic,” says Wood in Creation, quoting an impassioned anti-slavery sermon given by a

preacher named Levi Hart in 1774, “’each individual gives up all private interest that is not

consistent with the general good, the interest of the whole body.’”124

For the republican patriots of 1776 the commonweal was all-encompassing—a

transcendent object with a unique moral worth that made partial considerations fade into

insignificance. “Let regard be had only to the good of the whole” was the constant

exhortation by publicists and clergy. Ideally, republicanism obliterated the individual.

“A Citizen,” said Samuel Adams, “owes everything to the Commonwealth.” “Every man

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in a republic,” declared Benjamin Rush, “is public property. His time and talents—his

youth—his manhood—his old age—nay more, life, all belong to his country.” “No man

is true republican,” wrote a Pennsylvanian in 1776, “that will not give up his single voice

to that of the public.”125

Although, as we shall see below, Wood is somewhat ambiguous on the point, his claim that

republicanism ideally obliterated the individual is one example of the unfortunate excess that

damaged the persuasiveness of the thesis Wood and similarly minded scholars promoted. Such

claims obscure what he and others contributed to the overarching debate. What is so striking

about this line of thinking taken to such an extreme is how out of line it is with western political

thought and the words of the founders themselves.

One sees in the passages above an example of a methodological problem that runs

parallel to that which one encounters in liberal scholarship. Of the eight sentences from Creation

in the paragraph above, only three are without a quote from 18th century Americans, and these

three consist in ostensibly interpreting the meaning of the words of the five authors quoted (six,

if one includes the passage from John Dickinson in the footnotes). Taking each citation in turn,

one can use them as a sample of the worst of his method. Do these passages prove his contention

that the individual is ideally obliterated in republican thought?

The passage from Hart’s sermon, titled “Liberty described and recommended,” qualifies

what “each individual gives up” by confining it to “private interest that is not consistent with the

general good,” so one sees immediately that he is not referring to the “obliteration of the

individual,” be it ideally or practically speaking. Hart continues this sentence with an analogy:

“And, considered as a member of society, he hath no other interest but that of the whole body, of

which he is a member: The case is similar to that of a trading company, possessed of a common

stock, into which every one hath given his proportion, the interest of this common stock is now

the property of the whole body, and each individual is benefited in proportion to the good of the

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whole, and is a good or bad member in proportion as he uniteth to, or counteracteth the interest

of the body.” Certainly each individual of a trading company would not think of himself as

obliterated in respect to his wealth by means of his possession “of a common stock” and Hart’s

qualification here is that “considered as a member of society”—and not, perhaps, considered as a

husband, father, parishioner, businessman, or in other respects—an individual “hath no other

interest but that of the whole body.” He goes on to say that “the welfare and prosperity of the

society is the common good, and every individual is to seek and find his happiness in the welfare

of the whole.”126 The individual finds “his happiness,” rather than his obliteration, in the

“transcendent” common good.

In addition, one supposes, the “general good” can never, in principle, obliterate the

individual over and against “the law of nature, of the natural rights of mankind” in terms of

which slavery is a “flagrant violation”—or it would not be accurately described as good. Nor

could the general good constrain “[r]eligious liberty” defined as “the opportunity of professing

and practising that religion which is agreeable to our judgment and consciences, without

interruption or punishment from the civil magistrate.”127 Hart’s point is that the unjust restriction

of liberty, most obviously in the form of American slavery, is “utterly inconsistent” with “a

general union for the common good,” as such a union ought to render “every individual…secure

of public approbation so long as he acts for the public welfare.”128 So in some sense the public

good is achieved by recognizing the limits of its power over the individual by means of

recognizing the rights of the individual that arise from his nature.

In the footnote to Hart’s sermon Wood piles on, quoting John Dickinson from the last of

his twelve influential Letters from a Farmer in Pennsylvania opposing the Townshend Acts: “A

people is travelling fast to destruction, when individuals consider their interests as distinct from

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those of the public.”129 In the same letter, Dickinson says that all are “firmly bound together by

the same rights, interests and dangers”; his overarching point is to exhort all concerned to unite

in opposing these dangers.130131 No doubt the British saw the Townshend acts as necessary for

the public good, but Dickinson, of course, does not put it this way. In his view Americans are

forced to “plow—sow—reap—gather—and thresh for others, whose PLEASURE is to be the

SOLE LIMITATION how much they shall take, and how much they shall leave.”132 Dickinson

says that the “belief of these truths” he is reminding them of “is indispensably necessary to” the

“happiness” of the colonists.133 The colonists “happiness is founded on their constitution; and is

to be promoted, by preserving that constitution in unabated vigor, throughout every part.”134

They “cannot be HAPPY, without being FREE—that we cannot be free, without being secure in

our property—that we cannot be secure in our property, if, without our consent, others may, as by

right, take it away.”135 For Dickinson, the British ought to be limited by the rights the American

claim. Regardless of the British government, “We have all the rights requisite for our

prosperity”; and if “we take care of our rights…we therein take care of our prosperity.”136 The

interest of the public that all individuals should regard as their own—apparently because

ultimately it is their own—turns out to be, in part at least, the defense of their individual rights as

regards their individual property.

Wood takes the phrase “[l]et regard be had only to the good of the whole” from The

Essex Result as printed in the Memoir of Theophilus Parsons. The document, published as a

pamphlet in 1778, followed John Adam’s lead in criticizing the new Massachusetts constitution

as proposed by the state legislature, in part because it was not created by delegates elected

directly from the people themselves; in part because men like John Adams were not involved in

writing it. The Essex Result also claimed that without a bill of rights and sufficient separation of

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powers, the constitution was flawed. Here’s the sentence in context, in a passage calling for

citizens to unite and seek to create a better constitution together: “Let all ambitious and

interested views be discarded, and let regard be had only to the good of the whole, in which the

situation and rights of posterity must be considered: and let equal justice be done to all the

members of the community; and we thereby imitate our common father, who at our births,

dispersed his favors, not only with a liberal, but with an equal hand.” Thus the “regard to the

good of the whole” is in reference to seeking to create a new state constitution, and it is

immediately described in terms of rights: “in [the good of the whole] the situation and rights of

posterity must be considered.” The page from which Wood takes his quote also says:

All men are born equally free. The rights they possess at their birth are equal, and of the

same kind. Some of those rights are alienable…Others are unalienable and

inherent…Those rights which are unalienable, and of that importance, are called the

rights of conscience. We have duties, for the discharge of which we are accountable to

our Creator and benefactor, which no human power can cancel. What those duties are, is

determinable by right reason, which may be, and is called, a well informed conscience.

What this conscience dictates as our duty, is so; and that power which assumes a controul

over it, is an usurper; for no consent can be pleaded to justify the controul, as any consent

in this case is void.137

Unalienable rights of the individual could never be subject to obliteration; in fact, just

government was based on their recognition.

Alienable rights, however, could be given up by the individual—but only so long as an

“equivalent” good was received by the individual, for “…if he receives no equivalent, the

surrender is void, and the supreme power as it respects him is a usurper.” Further, the power

given to the government by the individual must be “VOLUNTARILY parted with by him,” and

even this voluntary gift of the individual was limited, as “[e]ach individual also surrenders the

power of controuling his natural alienable rights, ONLY WHEN THE GOOD OF THE WHOLE

REQUIRES it. The supreme power therefore can do nothing but what is for the good of the

whole; and when it goes beyond this line, it is a power usurped.” In typical early American

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fashion, the “good of the whole” is presented here and elsewhere throughout the founding era as

in one sense a limiting principle on the power of government as regards the individual citizen.

Further, “[i]f the supreme power is so directed and executed that he does not enjoy political

liberty, it is an illegal power, and he is not bound to obey.”138

Thus the first of the “principles” that the Essex Result concludes“now seem to be

established” by means of its understanding of human nature is “[t]hat the supreme power is

limited, and cannot controul the unalienable rights of mankind…” The second is that a bill of

rights is required in any new Constitution.139 The individual was hardly obliterated; indeed, the

central thrust of the Essex Result was a defense of the natural rights of the individual, as well as

a call for a wise few individuals to be enlisted in constructing the new Constitution, albeit in a

popular manner through a constitutional convention.

Wood next quotes Samuel Adams and Benjamin Rush making similar statements. The

sentence from Adams comes from a letter in which he tells state politician Caleb Davis that he

does not want to seek further political office after retiring from the Continental Congress.

Immediately after Adams’s assertion that men owe everything to their commonwealth, he

demurs:

I have always endeavored to confine my Desires in this Life to moderate Bounds, and it

is time for me to reduce them to a narrower compass. You speak of “Neglect”,

“Ingratitude” &c. But let us entertain just Sentiments. A Citizen owes everything to the

Commonwealth. And after he has made his utmost Exertions for its Prosperity, has he

done more than his Duty? When Time enfeebles his Powers & renders him unfit for

further Service, his Country, to preserve its own Vigour will wisely call upon others; and

if he decently retreats to make Room for them he will show that he has not yet totally lost

his Understanding. Besides, there is a Period in Life when a Man should covet the exalted

Pleasure of Reflection in Retirement.140

Samuel Adams is universally admitted to be one of the most extreme examples of the

revolutionary spirit that Wood finds writ throughout American political thought. Although he

here seems to indicate that an individual is owed a decent retirement from public service and that

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reflection has a time and place over political action, Samuel Adams was not to retire from

politics until nearly two decades later. The sentence in question serves as an uncontested

premise making clear, perhaps playfully, perhaps grumpily, that Adams acknowledges the place

of public service. Adams then moderates the sentiment, and it is hard to see how far it goes or

how Adams’s words here are representative of anything more than a pro forma denial of political

ambition typical of the time. Adams obviously does not think that he literally owes everything to

the commonwealth, or it would be shameful to speak of retirement, one supposes. The decision

to enter or withdraw from politics, after all, appears to be his alone to make. The exact extent to

which Adams thinks citizens owe themselves to the commonwealth is thus not very clear from

this passage alone.

Is the tenor of such common denials of desire for politics in eighteenth century America

consistent with the claim that men owe everything to their commonwealth and that virtue itself

consisted in sacrificing to the public good? If virtue consists in such sacrifice, why constantly

deny that one is interested in it? Wood would say the two positions are consistent, because in

order to act for the public good according to the thought at the time one must show oneself to be

disinterested, or in today’s language, interested only for the right reason—for the sake of the

public good. Adams certainly took the idea of public service for the sake of the common good

very seriously; equally certainly, as Wood knows very well, Samuel Adams was not one to

downplay the role of individual rights in American political thought, associated as he was with

the famed “Rights of Colonists” report of his Committee of Correspondence, which mentions

“Mr. Locke” with more than passing familiarity. While that document does indeed assert that

“[t]he natural liberty of man, by entering into society, is abridged or restrained, so far only as is

necessary for the great end of society, the best good of the whole,” it is also says that “it is the

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greatest absurdity to suppose it in the power of one, or any number of men, at the entering into

society, to renounce their essential natural rights, or the means of preserving those rights; when

the grand end of civil government, from the very nature of its institution, is for the support,

protection, and defence of those very rights.” Although natural rights may need to be “abridged

or restrained” for the sake of “the best good of the whole,” they cannot be obliterated. “If men,

through fear, fraud, or mistake, should in terms renounce or give up any essential natural right,

the eternal law of reason and the grand end of society would absolutely vacate such

renunciation.” For “[i]n the state of nature every man is, under God, judge and sole judge of his

own rights and of the injuries done him” and although “[b]y entering into society he agrees to an

arbiter or indifferent judge between him and his neighbors…he no more renounces his original

right than by taking a cause out of the ordinary course of law, and leaving the decision to

referees or indifferent arbitrators.” Even in case of “abridged or restrained” rights for the good

of the whole, then, the individual’s consent is required. For instance, “[t]he supreme power

cannot justly take from any man any part of his property, without his consent in person or by his

representative.”141

If one was silly enough to take Rush’s flourish literally it would seemingly contradict

Adam’s assertion that he could beg off the duty he owed to the commonwealth on account of

being unfit in his own eyes:

I am extremely sorry to find a passion for retirement so universal among the patriots and

heroes of the war. They resemble skilful mariners, who, after exerting themselves to

preserve a ship from sinking in a storm, in the middle of the ocean, drop asleep as soon as

the waves subside, and leave the care of their lives and property, during the remainder of

the voyage, to sailors, without knowledge or experience. Every man in a republic is

public property. His time and talents—his youth—his manhood—his old age—nay more,

life, all, belong to his country.

PATRIOTS of 1774, 1775, 1776—HEROES of 1778, 1779, 1780! come forward!142

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Rush is here near the rousing end of an ardent rhetorical call for qualified wise and virtuous

individuals to reenter political life until the Articles of Confederation are adequately revised—all

hands on deck—and he ends his plea with a shout: “THE REVOLUTION IS NOT OVER!”143 Once

again, the fact that he has to make such a plea to all those who decided to “drop asleep” after the

Revolution “and leave the care of their lives and property” to men “without knowledge or

experience” itself qualifies the way in which all men and the entirety of their lives and talent

might realistically be considered the property of the state in American political practice. The

piece is intended to be a rousing exhortation to citizens to involve themselves in politics, and the

fact that Rush has to write it in the first place ought to moderate the extent to which the passage

Wood quotes is meaningful. Once again, the passage Wood quotes doesn’t tell us much about

what the terms of the proposition in question mean, although it does provide evidence that the

founding generation spoke of the primacy of the common good.

The last quotation from Wood’s paragraph is from the anonymous author of a 1776

pamphlet entitled “Four letters on interesting subjects”; it is taken from an argument for a

unicameral legislature in state constitutions:

Whereas, were there a large, equal and annual representation in one house only, the

different parties, by being thus blended together, would hear each others arguments,

which advantage they cannot have if they sit in different houses. To say, there ought to be

two houses, because there are two sorts of interest, is the very reason why there ought to

be but one, and that one to consist of every sort. …

However, let the form of government be what it may, in this, or other provinces, so long

as it answers the purpose of the people, and they approve it, they will be happy under it.

That which suits one part of the Continent may not in every thing suit another; and when

each is pleased, however variously, the matter is ended. No man is a true republican, or

worthy of the name, that will not give up his single voice to that of the public: his private

opinion he may retain; it is obedience only that is his duty.144

Just as in one house “every sort” of interest can hear each other, deliberate, and ultimately make

a decision as one based on the ultimate majority opinion, the author’s point is simply that the

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author and his fellow citizens should abide by the decision of the majoritarian political process

when it comes to constitution making itself, regardless of whether they agree with the results or

not. Even given this obedience, however, to the results of a just political process, the author goes

out of his way to make clear that the individual retains a substantial part of his individuality: he

can keep his private opinion. The action of obedience is what the good of the whole requires; it

does not require the reason of the individual to agree with it. Thus this passage also seems to

contradict Wood.

The author also says that “[i]t is easy to perceive that individuals by agreeing to erect

forms of government, (for the better security of themselves) must give up some part of their

liberty for that purpose; and it is the particular purpose of a Constitution to mark out how much

they shall give up.” He also says that while “an act of parliament, to use a court phrase, can do

any thing but make a man a woman,” “[n]o country can be called free which is governed by an

absolute power; and it matters not whether it be an absolute royal power or an absolute

legislative power, as the consequences will be the same to the people. That England is governed

by the latter, no man can deny, there being, as is said before, no Constitution in that country

which says to the legislative powers, ‘Thus far shalt thou go, and no farther.’”145 This is why

“[a] Constitution should lay down some permanent ratio, by which the representation should

afterwards encrease or decrease with the number of inhabitants; for the right of representation,

which is a natural one, ought not to depend upon the will and pleasure of future legislatures. And

for the same reason perfect liberty of conscience; security of person against unjust

imprisonments, similar to what is called the Habeas Corpus act; the mode of trial in all law and

criminal cases; in short, all the great rights which man never mean, nor ever ought, to lose,

should be guaranteed, not granted, by the Constitution…”146 Again, there seem to be limits

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what the individual ought to give up to public opinion; again, the public good seems to require

such limits.

It is difficult, then, to understand what Wood means when one investigates the quotations

surrounding his claim about the ideal obliteration of the individual in favor of the public good.

One can spot Wood his own rhetorical flourish as to the obliteration business, but the quotations

still seem to raise more questions than they answer. They help prove, indubitably, that

Americans frequently used language asserting the primacy of the common good in some respect.

They do not, however, tell us much about how they did so, nor what they thought the common

good was—which is unfortunate, especially in light of the questions these passages raise for the

well known accounts of the role of liberalism and individual rights in this era. Once again, we

find a similar methodological problem. In order to answer his critics, Wood would have to

directly counter their claims by means of an extended discussion of his marshaled quotations,

and this discussion would have to explicate their meaning by taking into account the context and

larger argument of each work they are taken from.

Liberalism Reconsidered In between the extremes of both sides of the spectrum, a more nuanced version of the common

good in the thought of the founding from those generally within the liberalism camp can be

found in the writings of Charles Kesler, who warns of making the “mistake of identifying the

‘first object’ [of government described in Federalist 10] with the final object of government, as

well as the corollary mistake of identifying the purposes of the Union…with the purposes of

government or the Constitution.”147 The end of government as discussed in the Federalist in

Kesler’s understanding is not merely a balance of interests for the sake of comfortable individual

self-preservation.

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The republican form, reduced to the principle of majority rule, is incapable of securing

private rights and the public good. This too is in keeping with the horizon of [the

Federalist’s] first part: the republican form has not been seen in relation to the true ends

of republican government, of good government. Accordingly, from the assumption that

the “first object of government” is the protection of man’s diverse faculties, the ends of

government in Number 10 appear to be “the public good and private rights,” two separate

but related goals…when the end of government is seen as the “safety and happiness of

society” (as in the second part of The Federalist), then private rights and the public good

become two aspects of a single common good.148

Kesler argues that Diamond’s interpretation of Federalist 10 rips it out of the context of the rest

of The Federalist. Rightly understood, Kesler maintains that “Publius is contending not for a

multiplicity of factions, but of interests, and these informed by a common opinion.”149 This

common opinion, ultimately “of justice,” is ideally to be formed in no small part by

representatives: “[i]t appears then that representation is especially for the sake of the public good

(rather than the rights of individuals) and is a kind of substitute for or rehabilitation of the

‘enlightened statesman.’”150 Ultimately, Kesler argues, the majority opinion that rules through

elected officials must venerate the Constitution itself and the ideas it embodies.

The Mild Voice of Reason: Deliberative Democracy and American National Government

by Joseph Bessette, a student of Herbert Storing, finds a similar notion at work in the actions of

Congress over time.151 He examines the actual workings of Congress in light of the political

thought of the founding era and argues that the founders successfully established a structure of

government that promotes actual deliberation about what laws will best achieve the public good

rather than a system that only reflects competing factional interests. Bessette argues that the

Federalist rejection of the aforementioned Anti-Federalist view of representation did not include

a rejection of the common good as the end of government. Policy was not meant to be merely

the sum of a mechanical process via a sort of calculating machine whose rules are created by the

Constitution and lubricated by logrolling. His proof rises or falls largely on his analysis of the

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results of what the founding generation made rather than an analysis of the thought or influence

of philosophers who lived outside of the time and place of the American founding era, and in so

doing he finds neither a looming contradiction in the founders’ thought nor a matching failure in

subsequent political practice.

Similarly to Kesler, Sheehan finds deep reflection concerning public opinion in the

thought of James Madison, a coherent theory of his own which she argues draws from both

ancient (Aristotle) and modern (Montesquieu) sources. “[Madison] employed Montesquieu’s

method for preserving the liberty of the constitution and at the same time reclaimed the

Aristotelian political task that took seriously the liberty of the citizen and the need for civic

education in the spirit of the regime.”152 Madison, then, was neither a classical republican nor a

liberal in the sense that modern scholarship has defined those terms. While not denying his

modern influences, Sheehan presents Madison’s understanding of self-government as

necessitating well formed public opinion, and therefore the system of government he consistently

sought to create and shape was intended to foster an enlightened citizenry rather than merely

deflect calculations of self-interest. For instance, Madison’s view of the “great principle of

representation” at work through the regime of the Constitution was intended to be that by which

“the will of the society…directs the government to the common good.”153 Contrary, then, to

much of liberal consensus theory Sheehan maintains that “[f]or Madison, the ‘great desideratum’

was not to depoliticize and anesthetize the opinions and mores of the citizens and replace the

expression of different views of justice with shrewd mechanical arrangements, but to provide an

environment in which the various views of justice can be expressed, enhanced, and, to the extent

possible, harmonized.”154

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Bessette asserts that Publius and the Federalists sought a form of government in which

“legislators …would focus less on the specific interests of their district or state” and more on the

common good of the nation, and proceeds to lists many of the phrases the Federalist uses to

speak of the common good.155 Although they disagreed about the status of the federal

government, the analysis of Agrippa and the Impartial Examiner’s understanding of the common

good above echoes Bessette’s claim that, “[t]his is not to argue…that the common interest is

disembodied from the interests or well-being of the parts… As John Jay wrote in the Federalist,

‘the good of the whole can only be promoted by advancing the good of each of the parts or

members which compose the whole.’”156 Yet, Bessette says, “the common interest of the

American union is more than the aggregation of the perceived interest of its parts,” as, for

instance, the Federalists did believe that power over commercial issues of significance should be

taken away from individual states. “Thus, as the nation’s new senators wrote to Washington, ‘it

shall be our invariable aim to divest ourselves of local prejudices and attachments.”157

Conclusion What this and the previous chapter reveal is the necessity of taking the founding generation

carefully on their own terms. Wood and many others point out the frequent appeal to the public

good during the Revolution or the ratification debate but often gloss over a major part of the

substance of that debate: the protection of individual rights considered as the end of government,

such that the violation of those rights justifies revolution. Yet this does not negate the

importance of the concept of the public good in America Revolutionary rhetoric or that of the

ratification debate. In fact, it suggests that early Americans understood a harmonious relationship

between these two concepts.

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Chapter 4: Origins and Ends; Individual Rights and the Public Good

Introduction Pangle rightly points out the significance and similarity of the repeated accounts of individual

rights and the origins and ends of government during the ratification debate. This chapter will

juxtapose each Anti-Federalist and Federalist description of individual rights and the foundations

of government with their use of the language of the public good—language which calls the

seemingly obvious liberalism of each author into question.

Both sides understand individual rights to be tied to the foundation of government which

ought to be ordered, at least in part, to protecting those rights. Rights arise both directly from the

nature of human beings (“natural rights” of conscience, or freedom of religious practice) and

indirectly out of various accepted traditional legal practices considered just, such as the jury trial;

this latter category of rights themselves arise out of an understanding of the fundamental equality

and liberty of human nature combined with tradition and the consent or agreement of citizens.

Yet the way these liberal principles and purposes are presented often begs the question of what

the function of government is other than protecting individual rights. Thus the chapter highlights

the two-fold descriptions of the purpose of government in each of our ten authors.

The pattern of rhetoric in the ratification debate generally follows that of the Declaration

of Independence described in chapter one. While the American Revolution focused the

American mind like a prism on the concept of rights as a protective barrier against tyrannical

government, the first fact submitted to a candid world is “He has refused his Assent to Laws, the

most wholesome and necessary for the public good.” While the focus of early American rhetoric

is nearly always connect to individual rights, such rights are seen as just protection for the

individual while the government governs for the sake of the public good. The rhetoric of the

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American Revolution proves the point: Americans vehemently disputed British rule by means of

talk of self-evident and some perhaps not as self-evident rights of both the natural and the legally

just and traditionally accepted variety; at the same time, Americans rallied each other in terms of

pursuing the public good.

Anti-Federalists If one includes the Anti-Federalist use of phrases using “welfare” as a base word along with their

use of phrases involving the word “good,” they speak of the public good more than the

Federalists (on average, once every 1,845 words as opposed to once every 2,895 words on the

part of the Federalists). The themes of representation, federalism and union, and their opposition

to the “general welfare” as a purpose of the Constitution emerge as the major contexts within

which they use these phrases.

The Anti-Federalists consistently speak of individual rights as a list of vital exceptions

carved out by those who make up the political community in the midst of handing over all other

conceivable powers to the government. What, then, is the relation of individual rights to the

public good? It must be said at the outset that we ought not to assume these two things

contradict one another. It seems entirely possible that one might understand the purpose of

government to be the pursuit of a true public good subject to the government’s respecting of

individual rights; in fact, it is conceivable in a government based on consent that respecting

rights enables the sort of deliberation required of the citizens in order to perceive and pursue the

public good. Of course, such sweeping statements beg the question as to what individual rights

and the public good mean in such a scenario.

Agrippa

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Rights

Agrippa frequently uses biblical passages and phrases and makes allusions to God with

ease. As Storing says in his introduction to Agrippa’s writings, James Winthrop’s “chief literary

effort was a study and interpretation of biblical prophecies.”158 Agrippa provides an argument

against the state of nature that is very much akin to western classical and Christian philosophical

notions of man’s social nature—and seemingly opposed to early modern political philosophy:

It is common to consider man at first as in a state of nature, separate from all society.

The only historical evidence, that the human species ever actually existed in this state, is

derived from the book of Gen. There, it is said, that Adam remained a while alone.

While the whole species was comprehended in his person was the only instance in which

this supposed state of nature really existed. Ever since the completion of the first pair,

mankind appear as natural to associate with their own species, as animals of any kind

herd together. Whenever we meet with their settlements, they are found in clans. We are

therefore justified in saying, that a state of society is the natural state of man. Wherever

we find a settlement of men, we find also some appearance of government. The state of

government is therefore as natural to mankind as a state of society. Government and

society appear to be coeval.159

Very early on in human history, he argues, one finds a sort of primitive democracy that existed

amongst the Native American tribes. “With them the whole authority of government is vested in

the whole tribe. Individuals depend upon their reputation of valour and wisdom to give them

influence.”160 This notion of embryonic democracy is particularly striking given the typical

Anti-Federalist rhetoric as regards democracy and representation that will be examined in the

next chapter, since Agrippa here makes the virtue of the ruler the criterion by which he is

selected. Although “rude and artless,” this early and natural form of government “is genuinely

democratical.”161 Yet “[t]he first attempt to reduce republicanism to a system, appears to be

made by Moses when he led the Israelites out of Egypt.” This lasted five centuries until the

people unwisely demanded a king for the wrong reasons—and such a cycle is typical of the

human race, as “people are dazzled with the splendor of distant monarchies, and a desire to share

in their glory induces them to sacrifice their domestic happiness.”162

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This account calls Rahe’s quotation cited in chapter two into question, as here Agrippa

agrees with one of the central tenets of classical and medieval political philosophy in opposition

to liberalism and the very idea that Rahe seems to be trying to get across in using the quotation:

contrary to the notion of the “state of nature” that is commonly thought of as an essential premise

of early modern political philosophy, Agrippa argues that human beings are naturally social and

that government is natural to human society. If man is naturally social, and if because of this

principle government is natural to him such that the first form of government is a crude

democracy in which the reputation of “valour and wisdom” rules, how could it be said that man

creates or orders government solely for his own personal good and that the good of others plays

no role in his understanding of joining or in unifying the group to which he belongs?

In any event, for Agrippa, it follows from the principle that human beings are naturally

social that government is natural to us. He then argues:

…that all the powers of government originally reside in the body of the people; and that

when they appoint certain persons to administer the government, they delegate all the

powers of government not expressly reserved. Hence it appears, that a constitution does

not in itself imply any more than a declaration of the relation which the different parts of

the government bear to each other, but does not in any degree imply security to the rights

of individuals. This has been the uniform practice. In all doubtful cases the decision is in

favour of the government. It is therefore impertinent to ask by what right government

exercises powers not expressly delegated. Mr. Wilson, the great oracle of federalism,

acknowledges, in his speech to the Philadelphians, the truth of these remarks, as they

respect the state governments, but attempts to set up a distinction between them and the

continental government.163

Many an Anti-Federalist makes the same point while arguing for the need for a federal bill of

rights. To reiterate, Agrippa maintains that “in the original state of government, the whole power

resides in the whole body of the nation; that when a people appoint certain persons to govern

them, they delegate their whole power; that a constitution is not itself a bill of rights; and that,

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whatever is the form of government, a bill of rights is essential to the security of the persons and

property of the people.”164

Thus Agrippa and, as we shall see below, many others describe the protection of

individual rights as a principle and end of government, but this protection of individual rights as

principle and end of government is set within the greater context of a government possessed of

otherwise unlimited powers. As Agrippa says in his next essay, “It is an idea favourable to the

interest of mankind at large, that government is founded in compact.”165 While it is clear that

this is a version of a “compact” theory of government, the compact is needed to carve out rights

that the people retain while creating an authority that can otherwise do as it thinks best:

A legislative assembly has an inherent right to alter the common law, and to abolish any

of its principles, which are not particularly guarded in the constitution. Any system

therefore which appoints a legislature, without any reservation of the rights of

individuals, surrender all power in every branch of legislation to the government. The

universal practice of every government proves the justness of this remark; for in every

doubtful case it is an established rule to decide in favour of authority.166

If the sole purpose of government was the protection of individual rights, one might expect that

the government would only or for the most part possess enumerated powers for the sake of said

protection. In fact, like so many other interlocutors in the ratification debate, although Agrippa

describes a recognition of individual rights as part of the basis of just government, and the

protection of individual rights as a central purpose of government, he also describes individual

rights as something that must be specifically cut out from the otherwise total block of power the

people give over to their government when they create it.

If the people by default delegate “all powers of government” but what they expressly

deny in order to protect their rights when they create government, how can the end of

government simply consist in the protection of their individual rights for the sake of comfortable

self-preservation? What is government going to be doing such that rights need to be protected in

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the first place—surely not simply securing rights? The question of how Agrippa and the rest of

the interlocutors in the ratification debate understand the public good can only be answered by

examining what they think the purpose of government is other than the protection of individual

rights; this will be examined in further in the following chapters. Yet it is clear enough that like

many an Anti-Federalist Agrippa thinks government has other functions that are ordered to serve

the good of the entire society; he thinks that society gives all power to the government to

accomplish said functions except what it carves out by compact.

Regardless of whether or not they speak of human beings as being naturally social, most

Anti-Federalists describe the philosophic result of the origins of government in a similar manner.

Public Good

Agrippa mentions the “publick good” once; he refers to the “good of others” in society

and the “good of empire” (negatively) once each. He also refers to the “welfare of the whole,”

the “welfare of the people,” and “our welfare” once each. He uses these phrases once every

3,720 words, which is the fourth most frequent use of this sort of language among the authors

considered.

He says that “[p]ersonal interest was not my object” and he “conceived that a man who

owes allegiance to the state, is bound, on all important occasions, to propose such inquiries as

tend to promote the publick good” but did not want to reveal his name to “those, who appear to

have other ends in view.”167 On the other hand, he says that “to tell us that we ought to look

beyond local interests, and judge for the good of the empire, is sapping the foundation of a free

state.”168 When it comes to Massachusetts, for instance, “Our extensive coasts, cold climate,

small estates, and equality of rights, with a variety of subordinate and concurring circumstances,

place us in this respect at the head of the union. We must, therefore, be indulged if a point which

so nearly relates to our welfare be rigidly examined.”169 After all, “[n]o man when he enters

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into society, does it from a view to promote the good of others, but he does it for his own good”;

but yet “[a]ll men having the same view, are bound equally to promote the welfare of the

whole.”170 As to the “empire”: “when it is considered that their residence is from two hundred to

five miles from their constituents, it is difficult to suppose that they will retain any great

affection for the welfare of the people.”171

Impartial Examiner

Rights

The Impartial Examiner, much like Agrippa above, asserts that “the liberty of a nation

depends, not on planning the frame of government, which consists merely in fixing and

delineating the powers thereof; but on prescribing due limits to those powers, and establishing

them upon just principles.”172 These “due limits” and “just principles” include some sort of

protection for individual rights. He too argues that a bill of rights is necessary because “it is a

maxim, I dare say, universally acknowledged, that when men establish a system of government,

in granting the powers therein they are always understood to surrender whatever they do not so

expressly reserve. This is obvious from the very design of the civil institution, which is adopted

in lieu of the state of natural liberty…”173 A man “must, when he enters into society, be

presumed to give up all those powers into the hands of the state by submitting his whole conduct

to the direction thereof. This being done by every member, it follows, as a regular conclusion,

that all such powers, whereof the whole were possessed, so far as they related to each other

individually” and “likewise every claim, which pertained to themselves, as individuals” are in

the power of the government. “Hence results the necessity of an express stipulation for all such

rights as are intended to be exempted from the civil authority.”174

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While one supposes a given culture might possess an unwritten constitution, or extra-

constitutional understandings of what constitutes the limit of power over individual human

beings and their relation to others, perhaps especially if it is understood that the only or

overarching goal of government is to protect those rights, Impartial Examiner and other Anti-

Federalists argue such an understanding outside of the written law is insufficient. While such an

“express stipulation” is necessary to satisfy the Impartial Examiner, the Constitution:

…is proposed without any kind of stipulation for any of those natural rights, the security

whereof ought to be the end of all governments. Such a stipulation is so necessary, that it

is an absurdity to suppose any civil liberty can exist without it. Because it cannot be

alledged in any case whatsoever, that a breach has been committed—that a right has been

violated; as there will be no standard to resort to—no criterion to ascertain the breach, or

even to find whether there has been any violation at all. Hence it is evident that the most

flagrant acts of oppression may be inflicted; yet, still there will be no apparent object

injured: there will be no unconstitutional infringement.175

Again, if the sole purpose of government is understood to be the protection of individual rights,

why would this standard be unknown? Regardless, the Impartial Examiner says that “[t]hose,

who cannot approve of this plan, have very strong objections to it, because they apprehend that

no security for their liberties will remain after it’s adoption: and although some of the ends

proposed might be obtained thereby; yet they think the sacrifice will be too great for the benefit

to be received.” In other words, while ends the Constitution does propose other than the securing

of rights “might be obtained” under the Constitution, the extent to which individual rights will be

sacrificed will not be worth the attainment of those ends. For those who oppose the Constitution

believe that “[t]o enjoy a competent degree of liberty” is “the greatest of human blessings—for

the loss of which no acquisitions whatsoever can compensate. They esteem this (and deservedly

too) as the soul of all political happiness.”176

Rather than rush to liberal judgment, we ought to consider this sort of statement more

broadly. Certainly, under republicanism or liberalism, however conceived, there must be a point

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at which the absence of liberty is understood to negate any other good for which government

exists. One might reasonably suppose, for instance, that something like the Taliban’s

Department of the Promotion of Virtue and the Prevention of Vice is not what those who trumpet

“classical republicanism” have in mind. Further, whether one is speaking about ancient Sparta or

modern day America, no matter the widely varying contexts and extents to which it is

understood, liberty is of necessity a kind of prerequisite for the existence of civic virtue and a

hallmark of citizenship, for without some degree of liberty one cannot exercise civic virtue or

partake in anything resembling what is generally understood to be citizenship.

Still, Impartial Examiner claims that securing natural rights ought to be the end of all

government, and he holds liberty to be the soul of political happiness. Consider what follows the

quotation concerning the “general good” cited in chapter two:

…the only true point of distinction between arbitrary and free governments seems to be,

that in the former the governors are invested with powers of acting according to their own

wills, without any other limits than what they themselves may understand to be necessary

for the general good; whereas in the latter they are intrusted with no such unlimited

authority, but are restrained in their operations to conform to certain fundamental

principles, the preservation whereof is expressly stipulated for in the civil compact: and

whatever is not so stipulated for is virtually and impliedly given up. Societies so

constituted invest their supreme governors with ample powers of exerting themselves

according to their own judgment in every thing not inconsistent with or derogatory to

those principles; and so long as they adhere to such restrictions, their deeds ought not to

be rescinded or controuled by any other power whatsoever.177

The “restrictions” to which authority must “conform” in acting to fulfill the general good arise

from the recognition and protection of individual rights, which he considers a basis for as well as

an end of human government. So long as government protects and does not violate the individual

rights society agrees on protecting, however, those who rule are free to use their constitutional

powers however they see fit “for the general good.”

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The “certain fundamental principles” to which the operations of the governors must

conform are “certain inherent rights pertaining to all mankind in a state of natural liberty, which

through the weakness, imperfection, and depravity of human nature cannot be secured in that

state.”178 These “inherent rights” are elsewhere referred to as “natural rights”: the people’s

“great object in forming society is an intention to secure their natural rights”179; the American

Revolution was the successful effort of the people of the colonies “to establish for themselves a

system of government upon free and liberal principles,” and they chose such “a system, as

conducive to the great ends of human happiness, the preservation of their natural rights and

liberties…”180 Given their experience under British rule, “which exposed the people of these

states to the machinations of wicked and designing ministers” they chose “a system, which had

principally in view the preservation of their liberty. Such was its grand object.”181 It was “[i]n

pursuit of this plan, as the great means of national happiness” that “constitutions were formed for

the different states upon principles, salutary in their nature, and tending to perpetuate the

freedom and independency of each. To these was added a confederation, under which the

separate republics so constituted might harmonize in all their general interests.”182

Public Good

The Impartial Examiner refers to the “general good” four times, the “general welfare”

twice, and the welfare of the country twice; he refers to the “common good,” the “good of their

country,” and the “good of all” once each. He uses these phrases more frequently than all but

Brutus: once every 1,211 words.

“When a change, so momentous in it’s nature, as that of new modelling a plan of

government, becomes the object of any people’s meditation, every citizen, whose mind is duly

impressed with a regard for the welfare of his country, will consider himself under an

indispensible obligation to make some such enquiries” as he is making. 183 He is not worried that

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his audience will even “need the force of persuasion, to exercise a proper freedom of enquiry

into the merits of this proposed plan of government: or that you will not pay a due attention to

the welfare of that country, for which you have already so bravely exerted yourselves.”184 As

to those who presented the Constitution to the people, he does not “suppose they had any other

object in view but the good of their country” either.185

When it comes to what that good or welfare consists in, he says the Articles of

Confederation has the same purposes as the Constitution. These purposes seem to involve a

good deal more than the securing of individual rights: “to ensure domestic tranquility must have

been another important object with the framers of this confederation: for union, harmony and

justice cannot fail to promote tranquility; and whenever a contract is formed for the purpose of

procuring the three first, it follows, as a regular consequence, that the other should partake of the

intention.—This great association is expressly declared to be entered into between the states ‘for

their common defence, the security of their liberties, and their mutual and general welfare,

binding themselves to assist each other against all force offered to, or attacks made upon, them,

or any of them, on account of religion, sovereignty, trade, or any other pretence whatever.’”186

He admits what “seems to be agreed on all sides that in the present system of union the Congress

are not invested with sufficient powers for regulating commerce, and procuring the requisite

contributions for all expences, that may be incurred for the common defence or general

welfare.”187

Further, he seems to explicitly admit of the dual purpose of government when it comes to

rights and the public good, as if both were related but distinct ends: “They ought to construct it in

such a manner as to procure the best possible security for their rights;—in doing this they ought

to give up no greater share than what is understood to be absolutely necessary:—and they should

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endeavor so to organise, arrange and connect it’s several branches, that when duly exercised it

may tend to promote the common good of all, and contribute as many advantages, as the civil

institution is capable of. It has been before observed that the only just origin of civil power is a

contract entered into by all the people for that purpose…”188 This passage indicates that

promoting the common good and securing rights are two distinct purposes rather than two

descriptions of the same thing. As we have seen, he does not think that those in government

should be allowed to act “without any other limits than what they themselves may understand to

be necessary for the general good,”189 but this does not negate the fact that the first “essential”

rule of government is for those in power to have “no other view than the general good of all

without any regard to private interest.”190

Private interests need to be unified and, presumably, made public. “So long as mankind

continues to be influenced by interest, the surest means of effecting an union of counsels in any

assembly is by an union of interests. Now, if it be considered that it is this concert, that it is this

union in promoting the general good, which alone can preserve concord in this great republic,

and secure it success and glory,—unhappy will be the situation of America, if she once precludes

the beneficial effects of such a good understanding.”191 The problem is that this “concert” is

difficult between the states since “being different societies, though blended together in

legislation, and having as different interests; no uniform rule for the whole seems to be

practicable: and hence, it is to be feared, that the general good may be lost in a mutual attention

to private views.”192 In fact, since “that reciprocity of common interest between legislature and

bulk of the nation, which should be the soul of republicanism, and are the chief objects of a free,

unbiassed and general representation, will not exist in this kind of government” it cannot be

“expected that a strict regard to the good of all will mark the public proceedings” as the federal

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government will not “regularly devote their labors to promote the happiness, prosperity and

freedom of a community, over whom they bear the rule—when they view themselves advanced

to this state of exaltation.”193 Recognized rights will protect the citizens from abuse by

overbearing government officials, but securing them is not the only end of government.

Brutus

Rights

Brutus declares that Americans hold “this truth as self-evident, that all men are by nature

free” and therefore “[t]he origin of society” is “in the united consent of those who associate.” For

what ends do they associate? “In a state of nature every individual pursues his own interest; in

this pursuit it frequently happened, that the possessions or enjoyments of one were sacrificed to

the views and designs of another; thus the weak were a prey to the strong, the simple and unwary

were subject to impositions from those who were more crafty and designing.” Obviously, “[i]n

this state of things, every individual was insecure.” While it was “[t]he mutual wants of men”

that “at first dictated the propriety of forming societies,” but not governments, “when [societies]

were established, protection and defence pointed out the necessity of instituting government.”

Society might be necessary to fulfill mutual wants, at least, but due to “the strong” and the

“crafty and designing” society demands government of some kind. Brutus says that “common

interest therefore directed, that government should be established, in which the force of the

whole community should be collected, and under such directions, as to protect and defend every

one who composed it.”194 Yet the members of that community ought not give over all power to

their government.

But it is not necessary, for this purpose, that individuals should relinquish all their natural

rights. Some are of such a nature that they cannot be surrendered. Of this kind are the

rights of conscience, the right of enjoying and defending life, &c. Others are not

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necessary to be resigned, in order to attain the end for which government is instituted,

these therefore ought not to be given up.195

“[R]ulers are invested with powers” in order to “protect the rights and promote the happiness of

the people,” which is the “design of civil government.”

But we cannot from hence justly infer that these powers should be unlimited. There are

certain rights which mankind possess, over which government ought not to have any

controul, because it is not necessary they should, in order to attain the end of its

institution. There are certain things which rulers should be absolutely prohibited from

doing, because, if they should do them, they would work an injury, not a benefit to the

people. Upon the same principles of reasoning, if the exercise of a power, is found

generally or in most cases to operate to the injury of the community, the legislature

should be restricted in the exercise of that power, so as to guard, as much as possible,

against the danger. These principles seem to be the evident dictates of common sense,

and what ought to give sanction to them in the minds of every American, they are the

great principles of the late revolution, and those which governed the framers of all our

state constitutions. Hence we find, that all the state constitutions, contain either formal

bills of rights, which set bounds to the powers of the legislature, or have restrictions for

the same purpose in the body of the constitutions. Some of our new political Doctors,

indeed, reject the idea of the necessity, or propriety of such restrictions in any elective

government, but especially in the general one.196

While the end of government might be more than the protection of rights, Brutus maintains that

prevention is necessary along with the protection of rights: government ought not to possess

powers that potentially be abused.

Public Good

Brutus refers to the public good far more than any other author considered here:

approximately once every 958 words. He mentions the “public good” eleven times; the

“common good” and the “general good” twice each; as well as the “good of the whole,” the

“good and happiness of the people,” the “good of the community,” and the “good of those

whom they [Congress] represent.” He mentions the “general welfare” twenty six times.

Brutus equates the common good with safety, happiness, and the securing of rights of all

members of a given a community. When “every individual was insecure; common interest

therefore directed, that government should be established, in which the force of the whole

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community should be collected, and under such directions, as to protect and defend every one

who composed it. The common good, therefore, is the end of civil government, and common

consent, the foundation on which it is established” and enough “natural liberty should be

surrendered…as will be sufficient to enable those, to whom the administration of the government

is committed, to establish laws for the promoting the happiness of the community, and to carry

those laws into effect.”197 Surrendering rights that “are not necessary to be resigned, in order to

attain the end for which government is instituted…would counteract the very end of government,

to wit, the common good. From these observations it appears, that in forming a government on

its true principles, the foundation should be laid in the manner I before stated, by expressly

reserving to the people such of their essential natural rights, as are not necessary to be parted

with.”198

He also says that “[i]n a republic, the manners, sentiments, and interests of the people

should be similar. If this be not the case, there will be a constant clashing of opinions; and the

representatives of one part will be continually striving against those of the other. This will retard

the operations of government, and prevent such conclusions as will promote the public good.”199

This is how he understands Montesquieu, whom he cites: “In a large republic, the public good is

sacrificed to a thousand views; it is subordinate to exceptions, and depends on accidents.”200 In

fact, Brutus suggests that the government of the states united ought to support the state

governments in their governing as an overarching and superior purpose. “The means, says the

gentleman, ought to be proportioned to the end: admit the proposition to be true it is then

necessary to enquire, what is the end of the government of the United States, in order to draw

any just conclusions from it. Is this end simply to preserve the general government, and to

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provide for the common defence and general welfare of the union only? certainly not: for beside

this, the state governments are to be supported.”201

The representative system must “be so constituted as to be capable of understanding the

true interests of the society for which it acts, and so disposed as to pursue the good and happiness

of the people as its ultimate end. The object of every free government is the public good, and all

lesser interests yield to it.”202 In this kind of government “[t]he principle of self love, therefore,

that will influence” the representative to “promote the good of the whole as opposed to

following his “own private advantage.”203 The people “should be satisfied that those who

represent them are men of integrity, who will pursue the good of the community with fidelity;

and will not be turned aside from their duty by private interest, or corrupted by undue influence;

and that they will have such a zeal for the good of those whom they represent.”204

Unfortunately, “[i]t is not to be expected that a legislature will be found in any country

that will not have some of its members, who will pursue their private ends, and for which they

will sacrifice the public good”205; some “will endeavor to mislead their minds by specious and

false reasoning, to impose upon their unsuspecting honesty by an affectation of zeal for the

public good.”206 Under the Articles, there is little to fear. For instance, “[t]he present Congress

are restrained from an undue exercise” of the power of raising troops” because “they know the

state legislatures, through whose authority it must be carried into effect, would not comply with

the requisition for the purpose, if it was evidently opposed to the public good.”207 Under the

Constitution, however, “[t]he people of this state will have very little acquaintance with those

who may be chosen to represent them…they will consist of men, whose names they have never

heard, and of whose talents and regard for the public good, they are total strangers to.”208

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“I know it is said that…the proposed general legislature will be disposed to regulate

elections upon proper principles, and to use their power with discretion, and to promote the

public good. On this, I would observe, that constitutions are not so necessary to regulate the

conduct of good rulers as to restrain that of bad ones.”209 He mocks the idea that given the

power the Constitution bestows, “the legislature could not do injustice, or pursue any measures,

but such as were calculated to promote the public good, and happiness…the governors of every

people should provide for the common defence and general welfare” but given the chance “[t]he

government would always say, their measures were designed and calculated to promote the

public good.”210 This is why powers that might be abused ought not be given in the first place.

If, for instance, “the principles and habits of the people of this country are opposed to standing

armies in time of peace, if they do not contribute to the public good, but would endanger the

public liberty and happiness, why should the government be vested with the power?”211 Yet “[i]f

the general legislature deem it for the general welfare to raise a body of troops” under the

Constitution they will be able to do so.212 The Constitution itself seem to recognize this point

when it “limits the power of the legislature to deprive a citizen of the right of habeas corpus, to

particular cases viz. those of rebellion and invasion; the reason is plain, because in no other cases

can this power be exercised for the general good.”213

Yet this recognition is only partial and does not represent the true spirit of the

Constitution. “To discover the spirit of the constitution, it is of the first importance to attend to

the principal ends and designs it has in view. These are expressed in the preamble” and “[i]f the

end of the government is to be learned from these words, which are clearly designed to declare it,

it is obvious it has in view every object which is embraced by any government. The preservation

of internal peace—the due administration of justice—and to provide for the defence of the

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community, seems to include all the objects of government; but if they do not, they are certainly

comprehended in the words, ‘to provide for the general welfare.’”214 Thus the Constitution will

“authorise the Congress to do any thing which in their judgment will tend to provide for the

general welfare, and this amounts to the same thing as general and unlimited powers of

legislation in all cases.”215 Brutus returns to this point repeatedly. From “[t]he design of the

constitution” as it is “is expressed in the preamble” Brutus says “[t]he inference is natural that

the legislature will have an authority to make all laws which they shall judge necessary for the

common safety, and to promote the general welfare. This amounts to a power to make laws at

discretion: No terms can be found more indefinite than these…”216 Since “the intent of the

constitution, among other things, is declared to be to provide for the common defence, and

promote the general welfare…[i]t is therefore evident, that the legislature under this constitution

may pass any law which they may think proper.”217

The restrictions within the Constitution are not enough, and the preamble is not limiting,

as the Federalists often claim:

I would ask those, who reason thus, to define what ideas are included under the terms, to

provide for the common defence and general welfare?...It will then be matter of opinion,

what tends to the general welfare…To provide for the general welfare, is an abstract

proposition, which mankind differ in the explanation of…the most opposite measures

may be pursued by different parties, and both may profess, that they have in view the

general welfare…Those who advocate this new constitution declare, they are influenced

by a regard to the general welfare; those who oppose it, declare they are moved by the

same principles” but “to adopt this constitution, and not to adopt it, cannot both of them

be promotive of the general welfare.”218

There is “no restriction of the power at all…they are to be applied to pay the debts and provide

for the common defence and general welfare of the United States; but the legislature have

authority to contract debts at their discretion; they are the sole judges of what is necessary to

provide for the common defence, and they only are to determine what is for the general

welfare.”219 “It is as absurd to say, that the power of Congress is limited by these general

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expressions, “to provide for the common safety, and general welfare,” as it would be to say, that

it would be limited, had the constitution said they should have power to lay taxes, &c. at will and

pleasure.”220 “Suppose the legislature of a state should pass a law to raise money to support their

government and pay the state debt, may the Congress repeal this law, because it may prevent the

collection of a tax which they may think proper and necessary to lay, to provide for the general

welfare of the United States?”221 Similarly, and for the same reasons (the clear meaning of the

preamble) he questions “whether the courts…are so constituted as to afford reasonable ground of

confidence, that they will exercise” their powers “for the general good.”222

Federal Farmer

Rights

The Federal Farmer says that “men of sense…will enquire what are the essential powers

in a community, and what are nominal ones, where and how the essential powers shall be lodged

to secure government, and to secure true liberty.”223 Here again, the two-fold end is clear:

securing government is one thing, the securing of “true liberty” another. What is true liberty? He

says elsewhere that “[l]iberty, in its genuine sense, is security to enjoy the effects of our honest

industry and labours, in a free and mild government, and personal security from all illegal

restraints.”224

When it comes to securing “true liberty,” Federal Farmer says that “when they make a

constitution,” whether the people reserve “all powers not delegated by them” or “yield all power

not expressly reserved to themselves…is mere matter of opinion, and men usually take either

side of the argument, as will best answer their purposes.” Yet since “the general presumption” is

“that men who govern, will, in doubtful cases, construe laws and constitutions most favourably

for encreasing their own powers; all wise and prudent people, in forming constitutions, have

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drawn the line, and carefully described the powers parted with and the powers reserved.”225

Further, Federal Farmer says regardless of theory, practically speaking, “[i]n forming a state

constitution, under which to manage not only the great but the little concerns of a community:

the powers to be possessed by the government are often too numerous to be enumerated; the

people to adopt the shortest way often give general powers, indeed all powers, to the

government, in some general words, and then, by a particular enumeration, take back, or rather

say they however reserve certain rights as sacred, and which no laws shall be made to violate:

hence the idea that all powers are given which are not reserved…”226

The Federal Farmer makes a helpful distinction between various kinds of rights that

seems to generally hold for the thought of other Anti-Federalists in the ratification debate:

“There are certain unalienable and fundamental rights, which in forming the social compact,

ought to be explicitly ascertained and fixed—a free and enlightened people, in forming this

compact, will not resign all their rights to those who govern, and they will fix limits to their

legislators and rulers, which will soon be plainly seen by those who are governed, as well as by

those who govern: and the latter will know they cannot be passed unperceived by the former, and

without giving a general alarm—These rights should be made the basis of every constitution; and

if a people be so situated, or have such different, opinions that they cannot agree in ascertaining

and fixing them, it is a very strong argument against their attempting to form one entire society,

to live under one system of laws only.227

He reiterates this distinction elsewhere when he says “[o]f rights, some are natural and

unalienable, of which even the people cannot deprive individuals: Some are constitutional or

fundamental; these cannot be altered or abolished by the ordinary laws; but the people, by

express acts, may alter or abolish them—These, such as the trial by jury, the benefits of the writ

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of habeas corpus, &c. individuals claim under the solemn compacts of the people, as

constitutions, or at least under laws so strengthened by long usuage as not to be repealable by the

ordinary legislature—and some are common or mere legal rights, that is, such as individuals

claim under laws which the ordinary legislature may alter or abolish at pleasure.”228 Some

concern other than the protection of individual rights must trump the latter two kinds of rights if

they can be justly altered or abolished.

Public Good

Federal Farmer refers to the “public good” five times, the “general welfare” five times,

and the “mutual welfare” once. This total of at least eleven references amounts to one mention

every 6092 words, which makes his references to the public good rarer than all other authors

considered here except Federalist Tench Coxe.

The Federal Farmer admits he is “not sufficiently acquainted with the laws and internal

police of all the states to discern fully, how general bankrupt laws, made by the union, would

effect them, or promote the public good but if they “can be made without producing real and

substantial inconveniences, I wish them to be made by Congress.”229 It is not clear if his

standard of “inconveniences” refers to what is inconvenient for the union or the states.

“A general opinion must pervade the community, that the house…is disinterested, and

ever watchful for the public good; and that the judges who shall try impeachments, will not feel

a shadow of biass.”230 In the state governments the representative are close to the people, “in a

government consisting of but a few members, elected for long periods, and far removed from the

observation of the people…they become…inattentive to the public good, callous, selfish, and

the fountain of corruption”231; “making legislators ineligible to offices for a given time,” he

thinks, would ensure that federal elected officials “would be left to act much more from motives

consistent with the public good.”232

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The Federalists argue for various powers as “all necessary in the hands of the union, for

the common defence and general welfare. In these great points they appear to me to go from the

end to the means, and from the means to the end, perpetually begging the question.”233 While

“[t]he confederation is a league of friendship among the states or sovereignties for the common

defence and mutual welfare—Each state expressly retains its sovereignty, and all powers not

expressly given to congress,”234 the power given by the Constitution “may be used to good or

bad purposes as honest or designing men shall prevail…the Congress shall have powers to lay

and collect taxes, duties, &c. for the common defence and general welfare.”235 “No society can

do without taxes; they are the efficient means of safety and defence, and they too have often been

the weapons by which the blessings of society have been destroyed. Congress will have power to

lay taxes at pleasure for the general welfare; and if they mis-judge of the general welfare, and

lay unnecessary oppressive taxes, the constitution will provide…no remedy for the people or

states.”236 “Should the state legislatures never meet, except merely for chusing federal senators

and appointing electors, once in four and six years, the federal head may go on for ages to make

all laws relative to” a long list of matters “by its own courts, officers, and provisions, carry them

into full effect, and to any extent it may deem for the general welfare.”237 Even in Great Britain

the danger is well known: if the King of England, “whose duty it is to defend the public, possess

in himself independently, all the means of doing it consistent with the public good, it might be

convenient: but the people of England know that their liberties and happiness would be in

infinitely greater danger from the king’s unlimited possession of these powers, than from all

external enemies and internal commotions to which they might be exposed.”238

Centinel

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Rights

Centinel does not give as substantial a philosophic treatment of rights as do the other

Anti-Federalists considered here. He does say that “[i]n a savage state, pre-eminence is the

result of bodily strength and intrepidity, which compels submission from all such as have the

misfortune to be less able; therefore, the great end of civil government is to protect the weak

from the oppression of the powerful, to put every man upon the level of equal liberty; but here

again, the same lust of dominion by different means frustrate almost always this salutary

intention.”239 The Constitution is one of those means, and “it is evident, that the general

government would necessarily annihilate the particular governments, and that the security of the

personal rights of the people by the state constitutions is superseded and destroyed; hence results

the necessity of such security being provided for by a bill of rights to be inserted in the new plan

of federal government…For universal experience demonstrates the necessity of the most express

declarations and restrictions, to protect the rights and liberties of mankind, from the silent,

powerful and ever active conspiracy of those who govern.”240 “The lust of power or domination

is of that nature, as seeks to overcome every obstacle, and does not remit its exertions whilst any

object of conquest remains, nothing short of the plenitude of dominion will satisfy this cursed

demon: therefore liberty is only to be preserved by a due responsibility in the government, and

by the constant attention of the people; whenever that responsibility has been lessened, or this

attention remitted, in the same degree has arbitrary sway prevailed.”241

Public Good

Centinel makes at least 26 references to the notion of the public good, averaging

one for every 1,453 words: only the Impartial Examiner, Brutus, and John Dickinson average

more. He refers to the “public good” three times, and the good of the whole and the good of the

country once each. He speaks of the “public welfare” and the “general welfare” each six times,

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“welfare” four times, welfare of the country twice; he refers to the welfare of the community, the

welfare of the union, and the people’s future welfare once each.

As for himself, “it may flatter his vanity, that these papers should be ascribed to an

illustrious patriot, whose public spirit and undaunted firmness of mind, eclipse the most shining

ornaments of the Roman commonwealth, in its greatest purity and glory, whose persevering

exertions for the public welfare, have endeared him to his country.”242 The matter at hand is

that “[t]he late Convention have submitted to your consideration a plan of a new federal

government—The subject is highly interesting to your future welfare—Whether it be calculated

to promote the great ends of civil society, viz. the happiness and prosperity of the community; it

behoves you well to consider, uninfluenced by the authority of names.”243 The question is

“[w]hether this plan be calculated for our welfare, or misery; whether it is the temple of liberty,

or the structure of despotism?”244 He says “as passing clouds obscure for a time the splendour of

the sun, so do wars interrupt the welfare of mankind; but despotism is a settled gloom that totally

extinguishes happiness, not a ray of comfort can penetrate to cheer the dejected mind.”245 The

answer to the question is that “[e]very man therefore who has the welfare of his country at

heart, every man who values his own liberty and happiness, in short, every description of

persons, except those aspiring despots who hope to benefit by the mysery and vassalage of their

countrymen, must now concur in rejecting the proposed system of government, must now unite

in branding its authors with the stigma of eternal infamy.”246 Liberty, prosperity, and happiness

are all thus tied to the public good.

Centinel thinks that the authorities with the names of George Washington and Benjamin

Franklin have “the welfare of their country at heart” even if they are sadly misled and used by

the other Federalists.247 The “secrecy during the framing of the plan…does not augur the public

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good—It carries on the face of it an intention to juggle the people out of their liberties.”248 After

the convention, he thinks the Federalists are “labouring to villify, intimidate and trample under

foot every disinterested patriot, who preferring his country’s good to every other consideration,

has the courage to stand forth the champion of liberty and the people.”249 The secretive

“systematic deception,” and “fraud” of the Federalists “ought to excite the most alarming

apprehensions in the minds of all those who think their privileges, property and welfare worth

securing.”250 He is especially concerned about a matter “highly prejudicial to the public welfare,

and at this great crisis peculiarly alarming and threatening to liberty; I mean the suppression of

the circulation of the newspapers.”251 “In a confederated government of such extent as the

United States, the freest communication of sentiment and information should be maintained, as

the liberties, happiness and welfare of the union depend upon a concert of counsels” and this

necessitates “the freedom of the press.”252 No one could have guess that “a post master-general

and his deputies would have had the daring presumption to convert an establishment intended to

promote and secure the public welfare into an engine of despotism, by suppressing all those

newspapers.”253 He warns that “[i]n every government whose object is the public welfare, the

laws are subjected to repeated revisions” and “in every instance where a law has been passed

without the usual precautions, it has been productive of great inconvenience and evils, and

frequently has not answered the end in view.”254

While John Adams “asserts that the administrators of every government, will ever be

actuated by views of private interest and ambition, to the prejudice of the public good; that

therefore the only effectual method to secure the rights of the people and promote their welfare”

is through the separation of powers into three branches, but Centinel asks “[i]f the administrators

of every government are actuated by views of private interest and ambition, how is the welfare

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and happiness of the community to be the result of such jarring adverse interests?” He thinks

that as “different orders in government will not produce the good of the whole, we must recur to

other principles.”255 Yet the interests may not be all that jarring: for instance, it is not probable

that the office of the President will “either have the firmness or inclination to exercise his

prerogative of a conditional controul upon the proceedings of that body, however injurious they

may be to the public welfare: it will be his interest to coincide with the views of the senate, and

thus become the head of the aristocratic junto.”256

The Federalists also include those who stand “against our inestimable state

constitution…who notwithstanding the testimony of uniform experience evinces the necessity of

restrictions on those entrusted with power, and a due dependence of the deputy on the constituent

being maintained to ensure the public welfare.”257 For instance, he quotes the Constitution

“Congress are to have power to…provide for the common defence and general welfare of the

United States” and asks “[n]ow what can be more comprehensive than these words…whatever

taxes, duties and excises that they may deem requisite for the general welfare, may be imposed

on the citizens of these states...Congress may construe every purpose for which the state

legislatures now lay taxes, to be for the general welfare, and thereby seize upon every object of

revenue.”258 And again:

‘Congress are to have power to…provide for the common defence and general welfare of

the United States.’ Now, what can be more comprehensive than these words? Every

species of taxation, whether external or internal are included. Whatever taxes, duties, and

excises that the Congress may deem necessary to the general welfare may be imposed on

the citizens of these states and levied by their officers. The congress are to be the absolute

judges of the propriety of such taxes, in short they may construe every purpose for which

the state legislatures now lay taxes, to be for the general welfare, they may seize upon

every source of taxation, and thus make it impracticable for the states to have the smallest

revenue…259

He says, sarcastically: “[b]esides, should Congress be disposed to violate the fundamental

articles of the constitution for the sake of public justice, they would be prevented in so doing by

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their oaths but even if this should not prove an obstacle, if it can be supposed that any set of men

would perjure themselves for the public good...260

Federalists They speak of the public good less than the Anti-Federalists: on average, once every 2,895 words

as opposed to once every 1,845 words on the part of the Anti-Federalists.

As Pangle indicates, the Federalists do not provide short philosophic synopses about the

foundation of government in terms of the securing of individual rights as often as the Anti-

Federalists. In fact, they frequently deny the need for a bill of rights in telling ways; revealing an

understanding of American government in which the people retain ultimate sovereignty even as

they create a powerful government that rules over themselves. The protection of individual

rights will take place through that government performing its proper functions, and does not

require a written list of individual rights—in fact, some Federalists suggest such a list is

impossible, and even dangerous. At the same time, the Federalists speak of the public good

repeatedly, especially in regard to representation and union, often praising the Constitution’s aim

to provide for the “general welfare.”

Oliver Ellsworth

Rights

Oliver Ellsworth opposes a Bill of Rights:

Bills of Rights were introduced in England when its kings claimed all power and

jurisdiction, and were considered by them as grants to the people. They are insignificant

since government is considered as originating from the people, and all the power

government now has is a grant from the people: the constitution they establish with

powers limitted and defined, becomes now to the legislator and magistrate, what

originally a bill of rights was to the people. To have inserted in this constitution a bill of

rights for the states, would suppose them to derive and hold their rights from the fœderal

government, when the reverse is the case.261

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says that “[w]e combine in society, with an expectation, to have our persons and properties

defended against unreasonable exactions either at home or abroad.” Ellsworth speaks of the

tradeoff between liberty and governance in a representative Federalist manner:

Those who wish to enjoy the blessings of society must be willing to suffer some restraint

of personal liberty, and devote some part of their property to the public that the remainder

may be secured and protected. The cheapest form of government is not always best; for

parsimony though it spends little, generally gains nothing. Neither is that the best

government which imposes the least restraint on its subjects; for the benefit of having

others restrained, may be greater than the disadvantage of being restrained ourselves.

That is the best form of government which returns the greatest number of advantages in

proportion to the disadvantages with which it is attended.262

Thus he and other Federalists emphasize that, this being the case, a strong government is needed

to defend the individual in order to “enjoy the blessings of society.” Defense from foreign

powers is also a necessity: “[i[f the public are unable to protect us against the unjust impositions

of foreigners, in this case we do not enjoy our natural rights, and a weakness in government is

the cause. If we mean to have our natural rights and properties protected, we must first create a

power which is able to do it, and in our case there is no want of resources, but only of a civil

constitution which may draw them out and point their force.”263 Of course, the same protection

is needed internally: “an internal government of strength is the only means of repressing external

violence, and preserving the national rights of the people against the injustice of their own

brethren.”264 “The Convention endeavoured to provide for the energy of government on the one

hand, and suitable checks on the other hand, to secure the rights of the particular states, and the

liberties and properties of the citizens. We wish it may meet the approbation of the several states,

and be a mean of securing their rights and lengthening out their tranquility.”265 He says

elsewhere that “[t]his is the last opportunity you may have to adopt a government which gives all

protection to personal liberty, and at the same time promises fair to afford you all the advantages

of a sovereign empire.266

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Public Good

Ellsworth refers to the “general welfare” three times, the “public good” twice, and the

“good” of society and the “national good” once each. This amounts to just once every 4,021

words, which is less frequent than all but Tench Coxe and the Federal Farmer.

“The business of civil government is to protect the citizen in his rights, to defend the

community from hostile powers, and to promote the general welfare.”267 Protecting rights and

defending the community helps to ensure liberty, but “liberty” rightly understood is not all things

to all people: “in the mouths of some it means any thing, which will enervate a necessary

government, excite a jealousy of the rulers who are our own choice, and keep society in

confusion for want of a power sufficiently concentered to promote its good.”268 He exhorts his

readers to be wary of the Anti-Federalists: “While you deliberate with coolness, be not duped by

the artful surmises of such as from their own interest or prejudice are blind to the public

good.”269 And in another warning regarding the Anti-Federalists he says: “We must not depend

too much on the enlightened state of the country, in deliberation this may preserve us; but when

deliberation proves abortive, we are immediately to calculate on other principles, and enquire to

what may the passions of men lead them, when they have deliberated to the utmost extent of

patience, and been foiled in every measure, by a set of men who think their own emoluments

more safe upon a partial system, than upon one which regards the national good.”270 He also

tells the citizens of Rhode Island that while they have helped the rest of the states by teaching via

their bad example, “[y]ou may not expect to exist in this course any longer than is necessary for

public good; and there is no need that such a kind of warning as you set before us should be

eternal.”271

He says that the Constitution’s “powers extend only to matters respecting the common

interests of the Union, and are specially defined, so that the particular states retain their

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Sovereignty in all other matters...The objects for which Congress may apply monies are the same

mentioned in the eighth article of the confederation, viz. for the common defence and general

welfare, and for payment of the debts incurred for those purposes.”272 He sees the eighth article

as limiting: “[t]hrough the whole of this debate, I have attended to the objections which have

been made against this clause; and I think them all to be unfounded. The clause is general; it

gives the general Legislature “power to lay and collect taxes, duties, imposts and excises to pay

the debts, and provide for the common defence and general welfare of the United States.””273

Noah Webster

Rights

Webster does not emphasize individual rights, and argues against the Anti-Federalist call

for a bill of rights in the Constitution. He mocks an Anti-Federalist list of suggested rights: “[a]s

a supplement to that article of your bill of rights, I would suggest the following restriction:—

‘That Congress shall never restrain any inhabitant of America from eating and drinking, at

seasonable times, or prevent his lying on his left side, in a long winter’s night, or even on his

back, when he is fatigued by lying on his right.’”274 He does not even agree that the right of trial

by jury is a natural right; in the course of arguing the point he makes this general remark:

There are perhaps many laws and regulations, which from their consonance to the eternal

rules of justice, will always be good and conformable to the sense of a nation. But most

institutions in society, by reason of an unceasing change of circumstances, either become

altogether improper or require amendment; and every nation has at all times, the right of

judging of its circumstances and determining on the propriety of changing its laws.275

He says “a Bill of Rights against the encroachments of an elective Legislature, that is, against our

own encroachments on ourselves, is a curiosity in government.”276 In Great Britain “[e]very

acquisition of freedom must be established as a right, and solemnly recognized by the supreme

power of the nation; lest it should be again resumed by the crown;” thus “they are esteemed,

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because they are barriers erected by the Representatives of the nation, against a power that exists

independent of their own choice.” In America, however, “the supreme power is the people in

their Representatives” and thus “[t]he Bills of Rights, prefixed to several of the constitutions of

the United States, if considered as assigning the reasons of our separation from a foreign

government, or as solemn declarations of right against the encroachments of a foreign

jurisdiction, are perfectly rational, and were doubtless necessary. But if they are considered as

barriers against the encroachments of our own Legislatures, or as constitutions unalterable by

posterity, I venture to pronounce them nugatory, and to the last degree, absurd.” “In our

governments, there is no power of legislation, independent of the people; no power that has an

interest detached from that of the public; consequently there is no power existing against which it

is necessary to guard. While our Legislatures therefore remain elective, and the rulers have the

same interest in the laws, as the subjects have, the rights of the people will be perfectly secure

without any declaration in their favor.”277

Webster says that although some think that “liberty consists in a power to act without any

control…in civil society, political liberty consists in acting conformably to a sense of a majority

of the society. In a free government every man binds himself to obey the public voice, or the

opinions of a majority; and the whole society engages to protect each individual.” If we “reverse

the case; suppose every man to act without control or fear of punishment—every man would be

free, but no man would be sure of his freedom one moment. Each would have the power of

taking his neighbor’s life, liberty, or property; and no man would command more than his own

strength to repel the invasion.”278

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Public Good

Noah Webster mentions the “general welfare” eight times, the “general good” three

times, and the “public good” and “the good of the Union” once each. This amounts to a mention

once every 1,803 words, which makes him the fifth most frequent user of such terms.

His concern for deliberation for the sake of the good of the states considered as a whole is

evident: “Is it not highly assuming in the Legislature of any particular State, to pretend to

determine with greater precision, respecting a Constitution calculated for the good of the Union,

than a Convention of the most sensible men from the different States, has done?”279 In fact,

“[t]he design of representation is to bring the collective interest into view…It is indeed difficult

for a man to divest himself of local attachments and act from an impartial regard to the general

good; but he who cannot for the most part do this, is not a good legislator.”280 Structurally,

“[t]he separation of the legislature divides the power—checks—restrains—amends the

proceedings—at the same time, it creates no division of interest, that can tempt either branch to

encroach upon the other, or upon the people. In turbulent times, such restraint is our greatest

safety—in calm times, and in measures obviously calculated for the general good, both branches

must always be unanimous.”281 “Hence in the senate we may expect union and firmness—here

we may find the general good the object of legislation, and a check upon the more partial and

interested acts of the other branch.”282

In one sense the public good is expansive: he says that “the public good or safety

requires that the powers of a Legislature should be co-extensive with those of the people.”283 In

another sense, he presents the general welfare as a limiting principle: “The only question

therefore is, whether the new constitution delegates to Congress any powers which do not respect

the general interest and welfare of the United States,”284 but “[i]t appears to me that Congress

will have no more power than will be necessary for our union and general welfare; and such

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power they must have or we are in a wretched state.”285 Although “[i]t is insinuated that the

constitution gives Congress the power of levying internal taxes at pleasure” because the

Constitution says it shall “provide for the common defence and general welfare of the United

States,” Webster says “it will be conceded that the supreme head of the states must have power,

competent to the purposes of our union, or it will be, as it now is, a useless body, a mere expense,

without any advantage.”286 In fact, “[t]he preamble to the constitution is declaratory of the

purposes of our union, and the assumption of any powers not necessary to…promote the general

welfare…will be unconstitutional, and endanger the existence of Congress.” And again in a

footnote: ““no powers are vested in Congress but what are included under the general

expressions, of providing for the common defence and general welfare of the United States. Any

powers not promotive of these purposes, will be unconstitutional.” Besides, “the purposes to

which the money shall be appropriated are specified, viz. to pay the debts and provide for the

common defence and general welfare of the United States. For these purposes money must be

collected, and the power of collection must be lodged, sooner or later, in a federal head; or the

common defence and general welfare must be neglected.” Since “[t]he states in their separate

capacity, cannot provide for the common defence…[t]he only question therefore is, whether it is

necessary to unite, and provide for our common defence and general welfare. For this question

being once decided in the affirmative, leaves no room to controvert the propriety of constituting

a power over the whole United States, adequate to these general purposes.”

James Wilson

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Rights

Wilson maintains that man is naturally social, and society is not possible without

government:

Our wants, our talents, our affections, our passions, all tell us that we were made for a

state of society. But a state of society could not be supported long or happily without

some civil restraint. It is true, that in a state of nature, any one individual may act

uncontrolled by others; but it is equally true, that in such a state, every other individual

may act uncontrolled by him. Amidst this universal independence, the dissensions and

animosities between interfering members of the society would be numerous and

ungovernable. The consequence would be, that each member, in such a natural state,

would enjoy less liberty, and suffer more interruption, than he would in a regulated

society. Hence the universal introduction of governments of some kind or other into the

social state. The liberty of every member is increased by this introduction; for each gains

more by the limitation of the freedom of every other member, than he loses by the

limitation of his own. The result is, that civil government is necessary to the perfection

and happiness of man.287

Wilson does not understand this dynamic to be purely negative, as he says it is necessary to the

“perfection and happiness of man.” Note the implication that this “restraint” in a “regulated

society” controls the individual, limiting his freedom in such a way as to order or harmonize

“dissensions” and lessen or alleviate “animosities”; it is a necessary condition if human beings

are to perfect or fulfill themselves. In the same way, Wilson argues, the states must accept a

limited freedom for their own good, and the same implications follow from his argument. He

implies that freedom, at least, is necessary to the perfection and happiness of man.

Wilson argues that bills of rights were not deemed necessary by many states, and that in

those states the people retain their rights; in states with bills of rights such rights are often

violated anyhow.288 The suggestion is that rights are secured by strong and just government

pursuing its purposes, albeit limited by enumeration, rather than by explicitly attempting to mark

off and protect individual rights. Since he argues that every power not given to the federal

government by the Constitution is reserved by the people, “it would have been superfluous and

absurd to have stipulated with a fœderal body of our own creation, that we should enjoy those

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privileges, of which we are not divested either by the intention or the act, that has brought that

body into existence.”289 “In all societies, there are many powers and rights, which cannot be

particularly enumerated. A bill of rights annexed to a constitution is an enumeration of the

powers reserved. If we attempt an enumeration, everything that is not enumerated is presumed to

be given. The consequence is, that an imperfect enumeration would throw all implied power into

the scale of the government; and the rights of the people would be rendered incomplete.”290 In

other words, “when general legislative powers are given, then the people part with their

authority, and on the [Anti-Federalist’s] principle of government, retain nothing” while “in a

government like the proposed one, there can be no necessity for a bill of rights. For, on my

principle, the people never part with their power.” Enumerating all the rights of men is

impossible: “Enumerate all the rights of men! I am sure, sir, that no gentleman in the late

Convention would have attempted such a thing.”291

Public Good

James Wilson uses the word “welfare” fourteen times. He mentions the “general

welfare” five times, the “public welfare” three times, the “welfare of the whole” twice; he refers

to “the welfare of the general and superintending confederacy,” the “welfare of the government,”

the “welfare of his country” “their welfare or happiness” once each. He also mentions the good

of or to the community twice, the good of or to the whole twice, and the “public good” and

“general good” once each. These references amount to one every 3,115 words, which makes him

the sixth most frequent user of such terms.

He says of the Anti-Federalists that “[t]t is the nature of man to pursue his own interest,

in preference to the public good; and I do not mean to make any personal reflection, when I add,

that it is the interest of a very numerous, powerful, and respectable body to counteract and

destroy the excellent work produced by the late convention.”292 The question, however, is

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whether under the Articles it is possible to “relieve the distress of our citizens? Can we provide

for their welfare or happiness?”293

“It is…a fundamental principle of society, that the welfare of the whole shall be pursued

and not of a part, and the measures necessary to the good of the community must consequently

be binding upon the individuals that compose it.”294 This applies to the individual as well as

smaller communities of government that exist within larger ones. “Civil liberty is natural liberty

itself, divested only of that part, which, placed in the government, produces more good and

happiness to the community than if it had remained in the individual.”295 While “narrow minds,

and intriguing spirits, will be active in sowing dissensions and promoting discord…those whose

understandings, and whose hearts are good enough to pursue the general welfare, will find, that

what is the interest of the whole must, on the great scale, be the interest of every part.”296 “Now

when we come to consider the objects of this government, we shall find, that in making our

choice of a proper character to be a member of the House of Representatives, we ought to fix on

one, whose mind and heart are enlarged; who possesses a general knowledge of the interests of

America and a disposition to make use of that knowledge for the advantage and welfare of his

country. It belongs not to this government to make an act for a particular township, county, or

state.”297

Thus those who created the Constitution “were necessarily led not only to consider the

situation, circumstances, and interests of one, two, or three states, but of the collective body; and

as it is essential to society, that the welfare of the whole should be preferred to the

accommodation of a part, they followed the same rule in promoting the national advantages of

the Union in preference to the separate advantages of the states…no government…can exist,

unless private and individual rights are subservient to the public and general happiness of the

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nation.”298 “The states should resign, to the national government, that part, and that part only, of

their political liberty, which placed in that government will produce more good to the whole

than if it had remained in the several states”299; “[i]t will be the duty of a state, as of an

individual, to sacrifice her own convenience to the general good of the Union.”300

He says that “civil liberty, while it resigns a part of natural liberty, retains the free and

generous evercise of all the human faculties, so far as it is compatible with the public

welfare.”301 While the states resign “part of their political liberty, they retain the free and

generous exercise of all their other faculties as states, so far as it is compatible with the welfare

of the general and superintending confederacy.”302 Similarly the people “have only dispensed

such portions of power as were conceived necessary for the public welfare,”303 and he is

confident they will understand the principle. For instance, “[w]ill the people submit to two

taxing powers? I think they will, when the taxes are required for the public welfare, by persons

appointed immediately by their fellow citizens.”304

“The existence of the state government is one of the most prominent features of this

system” and he thinks that “[w]ith regard to those purposes which are allowed to be for the

general welfare of the Union, I think it no objection to this plan, that we are told it is a complete

government.”305 The “general government will be more studious of the good of the whole, than

a particular state will be.”306 Contrary to the Anti-Federalists, “it would be very unwise in this

Convention, to refuse to adopt this Constitution, because it grants Congress power to lay and

collect taxes for the purpose of providing for the common defense and general welfare of the

United States.”307 “Certainly Congress should possess the power of raising revenue from their

constituents, for the purpose mentioned in the eighth section of the first Article, that is “to pay

the debts and provide for the common defence and general welfare of the United States.”308 In

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short, “if it has merit, and is calculated to secure the blessings of liberty, and to promote the

general welfare, then such objections as have hitherto been made ought not to influence us to

reject it.”309

John Dickinson

Rights

Dickinson’s account of rights includes an analogy frequently employed by the Federalists

equating the individual’s relation to government to the states’ relation to the federal government

under the Constitution.

He presents a “principle, simple as the laws of nature…from which, as from a source, the

many benefits of society are deduced.” He thinks human beings are naturally social, although

what he means by this is open to question:

We may with reverence say, that our Creator designed men for society, because

otherwise they could not be happy. They cannot be happy without freedom; nor free

without security; that is, without the absence of fear; nor thus secure, without society.”

The conclusion is strictly syllogistic—that men cannot be free without society. Of course,

they cannot be equally free without society, which freedom produces the greatest

happiness. 310

How, then, is society formed? For Dickinson, “in forming a political society, each individual

contributes some of his rights, in order that he may, from a common stock of rights, derive

greater benefits, than he could from merely his own.”311 Dickinson concludes his discussion of

the underlying philosophy of rights by saying that, given his premises, “Each individual then

must contribute such a share of his rights, as is necessary for attaining that SECURITY that is

essential to freedom; and he is bound to make this contribution by the law of his nature; that is,

by the command of his creator; therefore, he must submit his will, in what concerns all, to the

will of the whole society.”312 “What does he gain by it? The aid of those associated with him—

protection against injuries from them or others—a capacity of enjoying his undelegated rights to

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the best advantage—a repeal of his fears—and tranquility of mind—or, in other words, that

perfect liberty better described in the Holy Scriptures, than any where else, in these

expressions—“When every man shall sit under his vine, and under his fig-tree, and NONE SHALL

MAKE HIM AFRAID.”313 Similarly, “in forming a confederation, each political society should

contribute such a share of their rights, as will, from a common stock of rights, produce the largest

quantity of benefits for them.”314 In this understanding:

[a] Constitution is the organization of the contributed rights in society. Government is

certainly the exercise of them. It is intended for the benefit of the governed; of course can

have no just powers but what conduce to that end: & the awefulness of the trust is

demonstrated in this—that it is founded on the nature of man, that is, on the will of his

MAKER, and is therefore sacred.315

Echoing Alexander Hamilton, Dickinson says that “Liberty is the sun of freemen, and the beams

are their rights.”316

Public Good

Dickinson mentions the “public good” and the “common welfare” three times each. He

refers to the “general welfare,” the “national welfare,” “the welfare of the whole union,” the

“weal of every confederacy”, the “public weal,” and the “general weal” all once each. He uses

these terms more frequently than any other Federalist examined here—once every 1,320

words—which is more than all but Brutus and the Impartial Examiner.

Dickinson says that “[a]s government is intended for the happiness of the people, the

protection of the worthy against those of contrary characters, is calculated to promote the end of

legitimate government, that is, the general welfare; for the government will partake of the

qualities of those whose authority is prevalent.”317 In order to achieve this end, there must be

one authority looking to the public good: “[t]here must either be one will, or several wills. If but

one will, all the people are concerned; if several wills, few comparatively are concerned.” Yet

the Anti-Federalists seem to refrain from the creation of one public will, favoring several instead,

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even though under the Constitution representatives “will have the most advantageous situation

and opportunities of acquiring all requisite information for the welfare of the whole union.” “It

cannot be with reason apprehended, that Congress will refuse to act upon any articles calculated

to promote the common welfare, tho’ they may be unwilling to act upon such as are designed to

advance PARTIAL interests.”318 The Anti-Federalists “insist for a privilege of opposing,

obstructing, and confounding all their measures taken with common consent for the general

weal, by the delays, negligences, rivalries, or other selfish views of parts of the union.”319 Do

any of the “propositions” of the Anti-Federalists “calculated to regulate, and if needful, to

controul, those tempers and measures of constituent parts of an union, that have been so baneful

to the weal of every confederacy that has existed?”320 Although “some inhabitants of large states

may desire the system to be so altered, that they may possess more authority in the decisions of

the government; or some inhabitants of commercial states may desire it to be so altered, that the

advantages of their trade may center almost wholly among themselves; and this predilection they

may think compatible with the common welfare,” in truth “[t]heir judgment being thus warped

at the beginning of their deliberation, objections are accumulated as very important, that, without

this prepossession, would never have obtained their approbation. Certain it is, that strong

understandings may be so influenced by this insulated patriotism, as to doubt, whether general

benefits can be communicated by a general government.”321

Dickinson says approvingly that the people of Great Britain “ask not for compacts, of

which the national welfare, and in some cases its existence, may demand violations. They

despise such dangerous provisions against danger” because “[t]hey know, that all powers

whatever, even those that according to the forms of the constitution are irresistable and absolute,

of which there are very many, ought to be exercised for the public good; and that when they are

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used to the public detriment, they are unconstitutionally exerted.”322 The best “antidote against

monarchical and aristocratical projects,” however, is “a strong combination of truly democratical

republics,” a strong combination, that is, of governments “in which all the officers are from time

to time chosen by the people.” Dickinson goes on to refer to the Achaean League: since “liberty

and equality…were the foundations of their institutions” and “the energy of the government

pervaded all the parts in things relating to the whole,” this union “counteracted for the common

welfare, the designs hatched by selfishness in separate councils.” “Thus, the public good was

maintained” because “[i]f folly or wickedness prevailed in any parts, friendly offices and salutary

measures restored tranquility.”323 For instance, “[w]e are to have a president, to superintend, and

if he thinks the public weal requires it, to controul any act of the representatives and senate.”324

Given his depiction, he asks: “Where was there ever a confederacy, that thus adhered to

the first principle of society, obliging by its direct authority every individual, to contribute, when

the public good necessarily required it, a just proportion of aid to the support of the

commonwealth protecting him—without disturbing him in the discharge of the duties owing by

him to the state of which he is an inhabitant; and at the same time so amply, so anxiously

provided, for bringing the interests, and even the wishes of every sovereignty and of every person

of the union, under all their various modifications and impressions, into their full operation and

efficacy in the national councils?”325

Tench Coxe

Rights

Coxe does not give much in the way of philosophical summaries of the foundation or end

of government. Although “in the confusions of a civil war we framed a Federal Constitution now

universally admitted to be inadequate to the preservation of liberty, property, and the union,”326 Coxe

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notes that “[t]he old fœderal Constitution contained many of the same things, which from error or

disingenuousness are urged against the new one. Neither of them have a bill of rights, nor does

either notice the liberty of the press, because they are already provided for by the State

Constitutions; and relating only to personal rights, they could not be mentioned in a contract among

sovereign states.”327 In fact, the Constitution’s structure will protect rights that are currently being

violated: “[h]ave not the rights of property been violated & religion & morality trampled under

foot by instalment & suspension Laws, by a paper legal tender (in case of suit) in six states, by

laws to discharge specific & pecuniary contracts in every species of property however worthless

in itself or useless and inconvenient to the creditor.”328 He lists many such problems at various

points: “This then is the condition of our country, in regard to private business, to the utter subversion

of common honesty, and the rights of property.”329 The solution is not more liberty, although he

says “I readily admit that the most serious Convulsions of our Empire Should not induce us to

sacrifice the essential requisites of Liberty & Happiness.”330 The kind of solutions he argues for,

however, involve more than the protection of rights, but “the principles of justice.” For example,

“[i]f a man omits to make a will, the public should distribute his property equally among those

who have equal pretensions, and who are able to render equal services to the community. By

these means, poverty and extreme riches would be avoided, and a republican spirit would be

given to our laws, not only without a violation of private rights, but consistently with the

principles of justice and sound policy.” In fact, this power along with others, “if exercised with

wisdom and virtue, will preserve the freedom of the states beyond any other means 331

Public Good

Coxe refers to the “good order of society” twice and the “common good” once, which is

the least frequent of any author considered hear (once every 9,837 words).

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He says he is describing “the frame of government” the Convention created, “the

foundations of peace, liberty and safety, which have been laid by their unwearied labors. They

have guarded you against all servants but those ‘whom choice and common good ordain,’

against all masters ‘save preserving Heaven.’332 He admits, however, that “[i]t will be found, on

a careful examination, that many things, which are indispensibly necessary to the existence and

good order of society, cannot be performed by the fœderal government, but will require the

agency and powers of the state legislatures or sovereignties, with their various appurtenances and

appendages.”333 After a long list of governmental functions, including the creation and

enforcement of criminal law, he asks “[w]hat nation can exist, if these things are not done and

provided for? Does it not therefore follow, that the several members of the confederacy (i. e. the

several state governments) must, as heretofore, do these and many other matters of a like nature,

which are necessary to the good order, and even to the existence of society.”334

Conclusion Taken out of their larger context and put next to each other, these references give us a valuable

sense of the way in which individual rights and the public good are spoken of in the ratification

debate. They reveal that each side is remarkably consistent in the way it speaks of both

concepts, and yet they also reveal some similarity between both sides even given their

differences, as both sides appeal to the protection of individual rights and the promotion of the

public good. They also reveal that the notion of the public good, although often used in

boilerplate rhetoric, is also used in some of the most significant rhetoric of the debate.

Yet these statements also present the questions that must be sorted out in order to

ascertain the meaning of the public good. In order to make these concepts come to life, and to

realize their full significance—and significant they are—we must turn to the major themes of

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that debate within which they live. The next six chapters look at those themes with these

concepts in mind.

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Chapter 5: Representation and the Anti-Federalists

Introduction: Democracy and Representation If we wish to uncover whether the function of the federal government aimed at the public good,

we will need to find examples in which the notion plays a role in the major themes of the

ratification debate.

The participants in the ratification debates all saw the notion of representation in

government as closely tied to the notion of the public good, even if they disagreed about how

representation ought to be understood and implemented. Of all the divisions between Federalists

and Anti-Federalists, there is perhaps none more fundamental, pervasive and consistent than their

opposition over the purpose of representation in republican government. The Anti-Federalist

complaint against the representational system the Constitution would establish is undoubtedly

one of the most common of the published arguments against its ratification. The Anti-Federalists

predicted that defects in the proposed Constitution’s design would separate the representatives

from the people to such a degree that government officials could, and therefore would, act for

their own private advantage rather than the good of the public, leading to the rule of an

aristocratic elite or a tyrant. The Anti-Federalist critique consisted of variations on a markedly

democratic theme: among other proposals, they argued the Constitution ought to be changed to

increase the number of representatives, require more frequent elections, subject representatives

to recall, set term limits, and create a unicameral legislature. The Anti-Federalists’ criticisms

and proposals for reform arose from a denial of the efficacy and justice of choosing

representatives primarily on the basis of their talents or virtue; instead they favored a standard

ultimately based on similarity or likeness to the people represented. They frequently denied or

deemphasized the discretionary or deliberative role of the representatives, instead favoring a

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system intended to allow the will of the people to flow through their representatives without

alteration.

The thrust of the Anti-Federalist writings on representation was thus to push the

constitutional arrangement as far as possible towards democracy while still maintaining a

representative system. It is useful to consider what a “pure” democracy is, as, say, explicated in

clear and generically applicable philosophic terms in Aristotle’s Politics, which would have been

more familiar and influential upon the thinking of American elites in the late 18th century than

such concepts as considered by contemporary political science.

In Book VI, chapter two of the Politics, Aristotle says:

The basis of a democratic state is liberty; which, according to the common opinion of

men, can only be enjoyed in such a state; this they affirm to be the great end of every

democracy. One principle of liberty is for all to rule and be ruled in turn, and indeed

democratic justice is the application of numerical not proportionate equality; whence it

follows that the majority must be supreme, and that whatever the majority approve must

be the end and the just. Every citizen, it is said, must have equality, and therefore in a

democracy the poor have more power than the rich, because there are more of them, and

the will of the majority is supreme. This, then, is one note of liberty which all democrats

affirm to be the principle of their state. Another is that a man should live as he likes. This,

they say, is the privilege of a freeman, since, on the other hand, not to live as a man likes

is the mark of a slave. This is the second characteristic of democracy, whence has arisen

the claim of men to be ruled by none, if possible, or, if this is impossible, to rule and be

ruled in turns; and so it contributes to the freedom based upon equality.335

“Such being our foundation and such the principle from which we start,” Aristotle goes on to

give “the characteristics of democracy”:

…the election of officers by all out of all; and that all should rule over each, and each in

his turn over all; that the appointment to all offices, or to all but those which require

experience and skill, should be made by lot; that no property qualification should be

required for offices, or only a very low one; that a man should not hold the same office

twice, or not often…that the tenure of all offices, or of as many as possible, should be

brief, that all men should sit in judgment, or that judges selected out of all should judge,

in all matters, or in most and in the greatest and most important- such as the scrutiny of

accounts, the constitution, and private contracts; that the assembly should be supreme

over all causes, or at any rate over the most important, and the magistrates over none or

only over a very few…Another note is that no magistracy is perpetual, but if any such

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have survived some ancient change in the constitution it should be stripped of its power,

and the holders should be elected by lot and no longer by vote. 336

The point is not to suggest that one side was more Aristotelian than the other, or even to place

their thought in some specific point within the realm of political philosophy, but merely to note

that the Anti-Federalists tended to advocate what has been traditionally understood in western

thought as democracy in its most clear and simple form, while the Federalists disagreed with

significant aspects of democratic government.

As Aristotle says elsewhere, “when the state is framed upon the principles of equality and

likeness, the citizens think they ought to hold office by turns.”337 The purely democratic

principles of equality and liberty, taken to their extreme, require ruling by turn or lots. The

practice of election and what it entails is therefore worthy of consideration in the context of Anti-

Federalist thought. When citizens decide to choose someone to represent them rather than

relying on chance or taking regular turns, the question immediately arises: in virtue of what

ought one to choose a representative? The notion of election seems to assume a principle other

than that of complete equality between citizens. Election creates the possibility of choosing

representatives on the basis of an inherent quality or excellence of the individual chosen—upon

the basis of some measure of inequality between the candidate and the voter. If one chooses a

candidate because one thinks that he has the requisite knowledge and other abilities, or because

one thinks he will make and choose good laws, or because one thinks he will deliberate well

about what is truly good for all instead of or in addition to his similarity to oneself or the

expectation that he will do what oneself would do in the same circumstances, one has left what

one might call “pure” or “direct” democracy behind, substantially altering and developing it.338

Certainly a tension between equality and inequality in this respect has always been with

us. No one would deny that American elections have often involved both the likeness of the

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person seeking election to the people they will represent (a “man of the people”) on one hand

and, on the other, the inherent qualities and experience of office seekers that potentially make

them better suited than others to both further the interests of their constituents and to govern

well, simply speaking (making, executing or judging laws, etc., for the benefit of all). Yet this

tension arises because representation seems to carry with it the implication that one needs to

choose the person best suited to the job, and that what makes that person better suited than others

is something other than his similarity to the people.

The above description and the commentary below does not deny that the Anti-Federalists

generally acknowledged the validity and usefulness of representatives and elective government

well as the desirability of virtuous government officials. They did not generally advocate

something akin to town hall meetings or government by lot at the federal or even the state level.

Nor does the argument presented here claim that the Federalists ever denied the principle of

popular government or the need for representatives to be “of” the people. It is worth noting at

the outset that the Anti-Federalists ultimately accepted the new Constitution once ratified, and

many voted for ratification (albeit generally with the promise of future amendments). It would

not be implausible to argue that the historical aftermath of the ratification debate is proof that the

actual divergence between both sides during the ratification debates was not as great as the

rhetoric of the time suggests, although one might also plausibly argue against this position.339

Yet regardless of how deep the difference between Federalist and Anti-Federalist over

representation was, there is no doubt that it was one of the greatest points of contention when it

came to the Constitution. Juxtaposed against the Anti-Federalists’ ambiguous treatment of the

concept, the debate reveals much about the Federalist understanding of the public good.

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There are two aspects of Anti-Federalist writings on representation that stand out in

relation to the public good. First, the Anti-Federalists emphasized that the public good could

only be achieved by ensuring that representation was truly common, often arguing that the

Constitution would fail to establish a representative body that truly “re-presented” the feelings

and interests of all the diverse groups and orders of the American citizenry, both as a whole and

in each particular district represented. Second, the Anti-Federalists maintained that elected

officials, selected in a system that sought to represent the entire society as perfectly as possible,

ought to act as their constituents would act if gathered in their stead. For many Anti-Federalists,

this role thus involved minimal deliberation based on the representative’s judgment as to the best

course of action to achieve the public good. Ideally, the most perfect system of representation

would involve a large body of representatives collectively bearing the likeness of the people in

microcosm as exactly as possible, acting in perfect accord with the interests and desires of those

represented. Anti-Federalist publications do not generally suggest that the will of the people

needs to be shaped or guided—to say nothing of resisted—by their representatives, nor do they

speak about the potential and consequences of such interests and desires running contradictory to

each other. They maintained instead that a body of representatives that was elected frequently

enough and was large enough to represent all of the people and enact their will without distortion

was the only means by which government would be truly good for all. Their support of

representation by elected officials remained nearly entirely democratic, seemingly based upon

the presupposition that a just regime must assume a near total equality amongst all the citizenry

as regards their ability to rule.

In order to best reveal Anti-Federalist thought on the matter, this chapter focuses on the

ways in which representation was understood by Brutus, Centinel, and the Federal Farmer.

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The Anti-Federalists, Representation, and the Public Good

Brutus

“equal, full and fair representation…is the great desideratum in politics.”340

One of the most renowned Anti-Federalists, Brutus was also, along with the Federal Farmer,

perhaps the best expositor of this central theme of the opponents of the Constitution; both

authors’ arguments concerning representation are extensive and in essential respects harmonious

with each other. Brutus lays forth the reasons he thinks the proposed Constitution’s

representational system is inadequate in a more substantial manner than most other Anti-

Federalists, as was recognized at the time.341

In his fourth essay, Brutus asserts that “[t]here can be no free government where the

people are not possessed of the power of making the laws by which they are governed, either in

their own persons, or by others substituted in their stead. Experience has taught mankind, that

legislation by representatives is the most eligible, and the only practicable mode in which the

people of any country can exercise this right, either prudently or beneficially” (italics mine).342

In his third essay, Brutus says “[i]t has been observed, that the happiness of society is the end of

government—that every free government is founded in compact; and that, because it is

impracticable for the whole community to assemble, or when assembled, to deliberate with

wisdom, and decide with dispatch, the mode of legislating by representation was devised” (italics

mine).343 Both of these statements seem to leave open the possibility that representation is not

merely a way to solve the practical problems that arise while attempting to implement the

democratic principle on a large scale, but that representation has its own unique and “beneficial”

advantages (namely, the potential “to deliberate with wisdom” and “decide with dispatch”) over

a purely democratic, town hall style assembly of the entire citizenry. Yet given his emphasis

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throughout the rest of his essays, it is unclear if he actually holds this position; if he does his

essays do not reveal why. For instance, consider how Brutus continues his third essay after the

sentence above; he derives the Anti-Federalist principle of representation from the definition of

the word:

The very term, representative, implies, that the person or body chosen for this purpose,

should resemble those who appoint them–a representation of the people of America, if it

be a true one, must be like the people. It ought to be so constituted, that a person, who is a

stranger to the country, might be able to form a just idea of their character, by knowing

that of their representatives. They are the sign–the people are the thing signified. It is

absurd to speak of one thing being the representative of another, upon any other principle.

The ground and reason of representation, in a free government, implies the same

thing…344

If this is the “ground and reason of representation” (italics mine), Brutus continues, then “[i]t is

obvious, that for an assembly to be a true likeness of the people of any country, they must be

considerably numerous.–One man, or a few men, cannot possibly represent the feelings,

opinions, and characters of a great multitude.”345 Virtually no one in the ratification debates

would have disputed that the “ground” or basis for representation was a similarity between ruled

and ruler, in the broad sense that rulers in popular government must arise from the people. Yet,

as we shall see, many Federalists would not have agreed that the reason for representation, or its

ultimate end, was to simply reflect the people. In fact, they explicitly rejected this position.

For Brutus, this kind of mirror representation is necessary since“[s]ociety instituted

government to promote the happiness of the whole, and this is the great end always in view in

the delegation of powers.” This “happiness of the whole” can only be achieved if, he continues,

“…those who are placed instead of the people, should possess their sentiments and feelings, and

be governed by their interests, or, in other words, should bear the strongest resemblance of those

in whose room they are substituted.”346 The sentiments, feelings and interests of the people are

not just compatible with the happiness of the whole, but rather a kind of cause of this happiness

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insofar as these sentiments, feelings and interests decide what the happiness of the whole

consists in, which is presumably whatever will satisfy these sentiments, feelings and interests. In

other words, the people and their sentiments, feelings and interests determine what ought to be

done in order to satisfy them, all the while governing the representatives tasked with taking

action to satisfy them. As Brutus presents his idea of representation here, he ignores any

tension—or implies there is no tension—between the good of the whole and the sentiments,

feelings, and interests of the people. There is little in his account of representation—barring one

exception we will examine below—admitting even the possibility of conflicting interests among

the people, nor does he present or even acknowledge the potential for selfishness, never mind

genuine disagreement or well intentioned misunderstanding concerning what is truly in an

individual or group’s interests and what only appears to be in that individual or group’s interest.

One does not readily draw the conclusion from reading his essays that he thinks such

disagreements about the public good constitute the day-to-day political lifeblood of republican

government; he does not acknowledge a substantial role for elected representatives to deliberate

over the public good. As we will see below, it is precisely because he thinks there is

disagreement over the public good between the states because of differences in their respective

populations and circumstances that he thinks the federal system of the Constitution is undesirable

and perhaps impossible to implement.

In order to place these remarks in the context of the ratification debates, consider James

Madison’s well known words in Federalist 10, formulating the problem of majority faction as the

problem of republican government. Hamilton’s Federalist 1 can be read as referring to Brutus at

the outset; Brutus’s first essay caught the attention of Madison soon after it was published.347

Federalist 9 seems to directly address Brutus’s references to Montesquieu and the “small

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republic.” In Madison’s famed first contribution as Publius in Federalist 10 he too confronts such

objections while changing the entire framework of the argument:

When a majority is included in a faction, the form of popular government… enables it to

sacrifice to its ruling passion or interest both the public good and the rights of other

citizens. To secure the public good and private rights against the danger of such a faction,

and at the same time to preserve the spirit and the form of popular government, is then

the great object to which our inquiries are directed. Let me add that it is the great

desideratum by which this form of government can be rescued from the opprobrium

under which it has so long labored, and be recommended to the esteem and adoption of

mankind. (emphases mine)348

If “popular government” labors under “opprobrium,” the Anti-Federalist rarely, if ever,

acknowledge or address such criticism except to mock the “aristocracy” or the “well born” for

fearing it. What for Madison is the “great object” directing the creation and defense of the

Constitution—the “great desideratum” of the new government that must justify the American

experiment—simply doesn’t exist in Anti-Federalist thought.

In his fourth essay, published in the New York Journal one week after Federalist 10

appeared in the New York Daily Advertiser, Brutus starts by repeating the theme of his third

essay in seeming reply to Publius: “The great art, therefore, in forming a good constitution,

appears to be this, so to frame it, as that those to whom the power is committed shall be subject

to the same feelings, and aim at the same objects as the people do, who transfer to them their

authority. There is no possible way to effect this but by an equal, full and fair representation;

this, therefore, is the great desideratum in politics.”349

These two quotes present perhaps the single most illuminating contrast between

Federalist and Anti-Federalist rhetoric. For Brutus, “the true criterion between a free government

and an arbitrary one” is that “[t]he former are ruled by the will of the whole, expressed in any

manner they may agree upon; the latter by the will of one, or a few.”350 There is no admission of

the possibility of the “will of the whole” to will wrongly or mistakenly. For the Federalists, as

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will be discussed below, the potential of the “will of the whole” for corruption, oppression, and

error is one of the central reasons for the necessity of the Constitution. Thus, like many other

Anti-Federalists, Brutus talks past Publius and the Federalists, denying or ignoring the very

problem the Federalists argue the Constitution is created to address.

Immediately before Brutus’s description of the great desideratum of the Anti-Federalists

he summarizes the Anti-Federalist understanding yet again:

But then, it is a matter of the highest importance, in forming this representation, that it be

so constituted as to be capable of understanding the true interests of the society for which

it acts, and so disposed as to pursue the good and happiness of the people as its ultimate

end. The object of every free government is the public good, and all lesser interests yield

to it. That of every tyrannical government, is the happiness and aggrandisement [sic] of

one, or a few, and to this the public felicity, and every other interest must submit.—The

reason of this difference in these governments is obvious. The first is so constituted as to

collect the views and wishes of the whole people in that of their rulers, while the latter is

so framed as to separate the interests of the governors from that of the governed. The

principle of self love, therefore, that will influence the one to promote the good of the

whole, will prompt the other to follow its own private advantage.351

Once again, when contrasted with Federalist writings, what Brutus and so many other Anti-

Federalists do not say and rarely, if ever, confront is revelatory. For Brutus, “the good and

happiness of the people,” “the good of the whole,” or the “public good” is achieved by

representation “constituted as to be capable of understanding the true interests of society.”

While this statement suggests the possibility that one can misunderstand or willfully reject one’s

true interests, note that Brutus does not oppose the people’s “true interests” to their own

misunderstanding, selfishness, or otherwise factional, apparent or otherwise “false” interests, but

rather to the tyrannical interests of one or a few. This one or these few apparently do not seek

their own happiness simply or properly understood in a manner harmonious with that of the

entire society, but their “aggrandisement” over and against the happiness of everyone else. As

Storing says of this passage, Brutus “seemed to suggest, by omission, that there can be no

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tyrannical government of the many, though on the whole it is more accurate to say that, while not

denying the possibility of majority tyranny, he did not see any need to discuss it.”352

Although it might sound at first glance as if “representation…so constituted as to be

capable of understanding the true interests of the society” refers to an enlightened group of

representatives, upon close inspection it seems as if Brutus holds that so long as one can “collect

the views and wishes of the whole people in that of their rulers” those views and wishes will

necessarily bring about the public good. In other words, representatives need merely to be

similar and close enough to the people they represent in order to understand and embody their

views and wishes, which, flowing freely through them, will achieve the public good. “If the

people are to give their assent to the laws, by persons chosen and appointed by them, the manner

of the choice and the number chosen, must be such, as to possess, be disposed, and consequently

qualified to declare the sentiments of the people; for if they do not know, or are not disposed to

speak the sentiments of the people, the people do not govern, but the sovereignty is in a few.”353

The standard by which one ought to choose a representative, then, is his ability to “declare the

sentiments of the people.”

In another passage he says: “In a pure democracy the people are the sovereign, and their

will is declared by themselves; for this purpose they must all come together to deliberate, and

decide. This kind of government cannot be exercised, therefore, over a country of any

considerable extent; it must be confined to a single city, or at least limited to such bounds as that

the people can conveniently assemble, be able to debate, understand the subject submitted to

them, and declare their opinion concerning it.”354 He then describes representative government,

and, once again, his description is not in terms of a change in kind from “pure democracy”: “In a

free republic, although all laws are derived from the consent of the people, yet the people do not

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declare their consent by themselves in person, but by representatives, chosen by them, who are

supposed to know the minds of their constituents, and to be possessed of integrity to declare this

mind.”355 Here again, what makes a representative qualified to perform his function is his ability

to “declare” the sentiments or mind of the people. The integrity (“honesty, uprightness,

entireness”356) of the representative has to do with his consistent reflection of the mind and

sentiment of the people rather than his own sentiments, mind or judgment. The representative is

not to render judgment, but to “declare” the judgment of the people. Like many other Anti-

Federalists, Brutus is primarily concerned with guarding against a federal government controlled

by a tyrant or a tyrannical elite few that thwarts the will of the people. He never directly

confronts the possibility of a situation in which the will of the majority of the people is contrary

to their good.

In such a small legislature as the Congress establishes, Brutus believes that the six

representatives that New York state would be allotted could not possibly include “the farmer,

merchant, mecanick [sic], and other various orders of people” that “ought to be represented

according to their respective weight and numbers.”357 Only “a few of the merchants, and those

the most opulent and ambitious” would be elected, and no yeoman, farmer, or mechanic would

stand a chance, according to Brutus. Instead, the “natural aristocracy”, “the rich,” those with

“large family connections,” and the “well born, and highest orders in life, as they term

themselves” would seek out such “a station too high and exalted to be filled by any but the first

men in the state, in point of fortune…” At root, Brutus’s problem with the natural aristocracy is

not merely their own vice or corruption, individually or as a class, but that they “will be ignorant

of the sentiments of the midling class of citizens, strangers to their ability, wants, and difficulties,

and void of sympathy, and fellow feeling.”358

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As opposed to the general population, however, Brutus does refer to the vices of the

natural aristocracy. He argues that in any legislature, “some of its members…will pursue their

private ends…for which they will sacrifice the public good.” Although the people as a whole

seem to be intrinsically good in his account, Brutus does admit they are susceptible to fakery.

Some men in any legislative body, particularly elite men from the natural aristocracy, are “artful

and designing, and frequently possess brilliant talents and abilities” that will enable them to

influence the well-intentioned, imposing “upon their unsuspecting honesty by an affectation of

zeal for the public good.”359

Soon after denying Madison’s “great desideratum” and asserting his own in his fourth

essay, Brutus addresses this problem by applying what could be seen as a version of the extended

territory argument of Federalist 10 applied to the legislative body. In direct contradiction to the

usual Federalist argument against large representative bodies, Brutus says that the “[t]he small

number which is to compose this legislature” will more easily allow for such conspiracies hinted

at above to accomplish their will, whereas “the firmest security against this kind of improper and

dangerous influence, as well as all other, is a strong and numerous representation: in such a

house of assembly, so great a number must be gained over, before the private views of

individuals could be gratified that there could be scarce a hope of success.”360 The thrust of his

argument is that a large legislature will ensure that the views of the people, rather than the

“private views of individuals,” will reign supreme. As we shall see, however, he also believes

that a legislature can be too large—and would be if the states united under one federal

government established one according to his principles. As he mentions in an aside elsewhere,

“a legislature, formed of representatives from the respective parts, would not only be too

numerous to act with any care or decision” but would also engender other difficulties.361

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Given the aims of the Constitution, however, and Brutus’s understanding of the principles

of politics, a larger legislative body than it would establish is also required so that the people

might know their representative. When it comes to choosing their representatives, the people:

…should be acquainted with their abilities to manage the public concerns with wisdom.

They should be satisfied that those who represent them are men of integrity, who will

pursue the good of the community with fidelity; and will not be turned aside from their

duty by private interest, or corrupted by undue influence; and that they will have such a

zeal for the good of those whom they represent, as to excite them to be deligent [sic] in

their service; but it is impossible the people of the United States should have sufficient

knowledge of their representatives, when the numbers are so few… they will consist of

men, whose names they have never heard, and of whose talents and regard for the public

good, they are total strangers to; and they will have no persons so immediately of their

choice so near them, of their neighbours and of their own rank in life, that they can feel

themselves secure in trusting their interests in their hands…the most sensible and

respectable yeomanry of the country can ever have any knowledge of them: being so far

removed from the people, their station will be elevated and important, and they will be

considered as ambitious and designing. They will not be viewed by the people as part of

themselves, but as a body distinct from them, and having separate interests to pursue; the

consequence will be, that a perpetual jealousy will exist in the minds of the people

against them; their conduct will be narrowly watched; their measures scrutinized; and

their laws opposed, evaded, or reluctantly obeyed.”362

There are at least two relevant points of interest as regards this passage.

First, would such “perpetual jealousy” be appropriate if the people knew their

representatives? Despite his intent to prove the likelihood of a harmful rift between the people

and their rulers that could lead to the weakening of the rule of law under the Constitution,

Brutus’s description here is very similar to routine Anti-Federalist descriptions about how the

relationship between representatives and the people ought to work in principle. Brutus himself

maintains elsewhere that while some people advocate trusting “that the proposed general

legislature will be disposed to regulate elections upon proper principles, and to use their power

with discretion, and to promote the public good…I would observe, that constitutions are not so

necessary to regulate the conduct of good rulers as to restrain that of bad ones.–Wise and good

men will exercise power so as to promote the public happiness under any form of

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government.”363 Indeed, “[m]en are apt to be deceived both with respect to their own dispositions

and those of others” and “power, lodged in the hands of rulers to be used at discretion, is almost

always exercised to the oppression of the people, and the aggrandizement of themselves; yet

most men think if it was lodged in their hands they would not employ it in this manner.”364 He

continues this line of thought with a brutal, vivid example from the Bible:

Thus when the prophet Elisha told Hazael, “I know the evil that thou wilt do unto the

children of Israel; their strong holds wilt thou set on fire, and their young men, wilt thou

slay with the sword, and wilt dash their children, and rip up their women with child.”

Hazael had no idea that he ever should be guilty of such horrid cruelty, and said to the

prophet, “Is thy servant a dog that he should do this great thing.” Elisha, answered, “The

Lord hath shewed me that thou shalt be king of Syria.” The event proved, that Hazael

only wanted an opportunity to perpetrate these enormities without restraint, and he had a

disposition to do them, though he himself knew it not.365

If the potential for mass murder is latent in every political ruler although they themselves know it

not, perhaps they should be “narrowly watched,” unless, as Brutus suggests, one takes away any

“power…to be used at discretion.”

Second, Brutus speaks above of the “wisdom” of good representatives, but he gives no

reason why the “zeal for the good of those they represent” involves real discernment or

deliberation on the part of representatives concerning the public good. Instead, the problem he

explicitly refers to is that the people “will have no persons so immediately of their choice so near

them, of their neighbours and of their own rank in life, that they can feel themselves secure in

trusting their interests in their hands.” There is nothing in the passage referring to “men of

integrity” that suggests “integrity” means anything more than being “possessed of integrity to

declare” the mind of the people as quoted earlier—the talk of “fidelity”, “duty”, and

incorruptibility as against giving in to “private interest” or “undue influence” seems to support

this interpretation. The representative has a duty to remain faithful to declaring the will of the

people incorrupt. As he says elsewhere, the “representatives ought to be intimately acquainted

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with the wants, understand the interests of the several orders in the society, and feel a proper

sense and becoming zeal to promote their prosperity.”366 The representative does not need

wisdom so much as a willingness to act as a conduit of the mind and will of the people.

Brutus’s use of the notion of prudence is revelatory. He uses the word “prudent” five

times and the word “prudence” once throughout his essays—just before the long passage quoted

above arguing that the people ought to know their representatives. He speaks here in reference

to the people and not to their representatives: the people won’t lose what they currently possess if

they “will exercise but a moderate share of prudence and firmness.”367 He never directly

mentions “prudence” or “prudent” as describing potential federal representatives in a favorable

way. He promises “to lead the minds of the people to a wise and prudent determination”368 and

as we have seen above, for practical reasons the people can only exercise their right to make law

“prudently” by means of representation.369 He refers to “the happiness and good order the people

experience from a wise and prudent administration of their internal government” in reference to

the states, bringing the point up only when arguing that the “[t]he states are as capable of making

a just estimate on this head, as perhaps any nation in the world…”370 Also referring to the states,

he says “[t]he peace and happiness of a community is as intimately connected with the prudent

direction of their domestic affairs, and the due administration of justice among themselves.”371

In perhaps the only mention of prudence as applied to federal representatives he predicts that the

Federalists will move over time to take away state rights as quickly as they find themselves able

to do so: as they “will think prudent.”372 His most substantial quote employing the concept,

although in reference to the power of the federal judiciary, is similar to his warning against

discretionary power above and further begs the question as to whether there is any role for

prudent statesmanship at all in his political thought: “For what purpose is a power given which it

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is imprudent or impossible to exercise? If it be improper for a government to exercise a power, it

is improper they should be vested with it.”373 While in context it may be a reasonable question if

the power in question can only be used imprudently, its tenor is suggestive. As Brutus expresses

his political philosophy in his essays, the extent to which there is a role for statesmanship or

prudence and deliberation on the part of political leaders is unclear.

What is abundantly clear, however, is that he does not think one can rely on Congress to

promote the public good by merely giving them the power to promote the public good. In

criticizing Congress, Brutus makes his sole admission that “mankind” has different views of the

general welfare and what will achieve it.

Are these terms [“to provide for the common defence and general welfare”] definite, and

will they be understood in the same manner, and to apply to the same cases by every one?

No one will pretend they will. It will then be matter of opinion, what tends to the general

welfare; and the Congress will be the only judges in the matter. To provide for the

general welfare, is an abstract proposition, which mankind differ in the explanation of, as

much as they do on any political or moral proposition that can be proposed; the most

opposite measures may be pursued by different parties, and both may profess, that they

have in view the general welfare; and both sides may be honest in their professions, or

both may have sinister views.374

If this is true, it is striking that Brutus never refers to this problem when it comes to the people

themselves. Indeed, even here he uses the more generic term “mankind” instead of “the people.”

Yet surely the people are part of mankind, and one wonders what happens when they differ in

opinion, or when their opinion is wrong. The problem, however, that Brutus latches on to here is

that the “Congress will be the only judges” as to what the public good is, and it is precisely

because “mankind differ in the explanation of” what the public good is that Congress should be

given as little power as possible to determine it.

Despite Federalist claims that, properly understood, the general welfare clause is limiting,

Brutus argues the Constitution hands over far too much power to promote the public good:

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It is as absurd to say, that the power of Congress is limited by these general expressions,

“to provide for the common safety, and general welfare,” as it would be to say, that it

would be limited, had the constitution said they should have power to lay taxes, &c. at

will and pleasure. Were this authority given, it might be said, that under it the legislature

could not do injustice, or pursue any measures, but such as were calculated to promote

the public good, and happiness. For every man, rulers as well as others, are bound by the

immutable laws of God and reason, always to will what is right. It is certainly right and

fit, that the governors of every people should provide for the common defence and

general welfare; every government, therefore, in the world, even the greatest despot, is

limited in the exercise of his power. But however just this reasoning may be, it would be

found, in practice, a most pitiful restriction. The government would always say, their

measures were designed and calculated to promote the public good; and there being no

judge between them and the people, the rulers themselves must, and would always, judge

for themselves.375

The upshot seems to be that the rulers ought not be given the power to judge what the public

good is and how best to achieve it. However such disagreement or misunderstanding amongst

the people is to be decided in Brutus’s understanding, it is clear that he thinks the less their

representatives are involved in this process, the better.

The underlying cause of Brutus’s disapproval with the Constitution is that he does not

think the public good exists or can be attained or agreed to by the number of people living over a

geographic area as large as the thirteen states, for both practical and principled reasons. If one

increases representation as much as Brutus thinks necessary to retain a democratic system, he

thinks one then runs into flesh and blood realities that make the system unworkable: “Is it

practicable for a country, so large and so numerous as they will soon become, to elect a

representation, that will speak their sentiments, without their becoming so numerous as to be

incapable of transacting public business? It certainly is not.” As he says elsewhere, “[i]n a

republic of such vast extent as the United-States, the legislature cannot attend to the various

concerns and wants of its different parts. It cannot be sufficiently numerous to be acquainted

with the local condition and wants of the different districts, and if it could, it is impossible it

should have sufficient time to attend to and provide for all the variety of cases of this nature, that

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would be continually arising.”376 In fact, “…in a large extended country, it is impossible to have

a representation, possessing the sentiments, and of integrity, to declare the minds of the people,

without having it so numerous and unwieldly [sic], as to be subject in great measure to the

inconveniency of a democratic government.”377 One wonders as to what the particulars of this

rare admission of the “inconveniency of a democratic government” consist of.

There is an even deeper problem, however: “In a republic, the manners, sentiments, and

interests of the people should be similar. If this be not the case, there will be a constant clashing

of opinions; and the representatives of one part will be continually striving against those of the

other. This will retard the operations of government, and prevent such conclusions as will

promote the public good. If we apply this remark to the condition of the United States, we shall

be convinced that it forbids that we should be one government.”378 For Brutus, the “manners,

sentiments, and interests of the people” across the states are not similar enough to avoid this

“constant clashing.” As he continues this passage, he indicates that if there is a public good for

all the states combined, it is an extremely limited one that will be difficult to attain by means of

just governance. “The United States includes a variety of climates. The productions of the

different parts of the union are very variant, and their interests, of consequence, diverse. Their

manners and habits differ as much as their climates and productions; and their sentiments are by

no means coincident. The laws and customs of the several states are, in many respects, very

diverse, and in some opposite; each would be in favor of its own interests and customs, and, of

consequence, a legislature, formed of representatives from the respective parts, would not only

be too numerous to act with any care or decision, but would be composed of such heterogenous

and discordant principles, as would constantly be contending with each other.”379 He cites

Montesquieu as saying: “In a large republic, the public good is sacrificed to a thousand views; it

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is subordinate to exceptions, and depends on accidents. In a small one, the interest of the public

is easier perceived, better understood, and more within the reach of every citizen; abuses are of

less extent, and of course are less protected.”380

These passages give deep insight into his notion of the public good and how it ought to

be attained. He does not assert that some of the former colonies will be correct and others

incorrect in ascertaining the public good. If these passages are to be rendered consonant with the

rest of his writings, one should read them as asserting that the public good varies for each region,

and those policies that are good for one region are not good for another. Much as representatives

must be similar to the people they represent, the people represented must be similar to each other

in order for the overarching public good to exist or for it to be attained (whether Brutus holds one

or both of these consequences follow is unclear). This line of thinking is consonant with his

description of how representation ought to work, since in such a system, as detailed above, he

does not describe the people as having disagreements or misunderstandings as to what

constitutes the good of the whole and how it ought to be attained. Although he does concede that

the people of the states united would clash in their understanding of it, nowhere does he deal

with the same problem as Madison: Brutus does not mention the possibility that the majority

could desire what is contrary to their own good.

Brutus’s judgment that in many respects, at least, there is no public good for all the states

together or that it cannot be achieved without injustice suggests that he does not think that, at the

national level, political leadership or the structure of government can teach, change or harmonize

a people’s collective understanding of the public good and how it ought to be achieved. Wilson

Cary McWilliams tries to argue the opposite, citing the following passage from Brutus’s fourth

essay referring to life under the Constitution: “[t]he representatives of the people cannot, as they

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now do, after they have passed laws, mix with the people, and explain to them the motives which

induced the adoption of any measure, point out its utility, and remove objections or silence

unreasonable clamours against it.”381 This is a remarkably flimsy piece of evidence. Brutus lays

out his view of representation in unmistakable fashion throughout his essays such that it is

unreasonable to assume he is here referring to a situation in which a representative has voted

against the majority of his district’s wishes. In this passage he is in the midst of talking about

how the confidence of the people will be affected by the Constitutional system. He is not talking

about deliberation, but about explaining a vote after the fact, most likely to a disgruntled

minority within a particular district.

Brutus’s essays suggest that he thinks, at best, political leadership (if similar enough to

the people) and governmental structure (if it allows the understanding and desire of the people to

flow through their representatives) can accurately reflect and implement the good of the whole if

it arises from a people who are similar enough to each other to avoid major disagreements.

There is little in his essays indicating that the public good is anything more than what the will of

the majority desires, although as we have seen when examining his thoughts concerning

federalism he indicates that, at the state and local level, the public good may have a more

substantial meaning.

Centinel

“..there would be no responsibility under the new constitution…”382

In what is arguably Centinel’s most prominent “classical republican” statement, he says

in his first letter that John Adams’s “sine qua non of a good government is three balancing

powers, whose repelling powers are to produce an equilibrium of interests, and thereby promote

the happiness of the whole community. [John Adams] asserts that the administrators of every

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government, will ever be actuated by views of private interest and ambition, to the prejudice of

the public good; and that therefore the only effectual method to secure the rights of the people

and promote their welfare, is to create an opposition of interests between the members of two

distinct bodies, in the exercise of the powers of government, and balanced by a third.”383

Centinel goes on to ask, in what could be seen as a serious question for early American political

thought, “if the administrators of every government are actuated by views of private interest and

ambition, how is the welfare and happiness of the community to be the result of such jarring

interests?”384 Nearly every other statement Centinel makes, however, seems to reveal that his

question is largely a mere rhetorical device that stands in opposition to his actual beliefs about

government. The fact that it occurs in his first and best known essay is likely responsible for the

fact that it occasionally crops up in modern scholarship at all.

It is abundantly clear from the rest of his essays that Centinel agrees with at least half of

what Adams says; Centinel also thinks one ought to assume the worst of government officials

when constructing a government in order to guard against abuse of office, disagreeing (if at all)

only on the proper means of keeping self-interested administrators in check. Centinel says that

“slavery has been the lot of nearly the whole of mankind in all ages,” and “this general vassalage

may be traced to a principle of human nature, which is more powerful and operative than all the

others combined; it is that lust of dominion that is inherent in every mind.”385 He believes that

history bears out this notion of human nature, teaching “the fatal danger of relying upon the

moderation and self-denial of men exposed to the temptations” that “the Congress under the new

constitution” will engender.386 Instead, he is adamant that “uniform experience evinces the

necessity of restrictions on those entrusted with power, and a due dependence of the deputy on

the constituent being maintained to ensure the public welfare.”387 Like Brutus and the other

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Anti-Federalists, Centinel is certain that without this “due dependence,” members of the House

“may become so independent of the people as to be indifferent of its interests:”388 For instance,

the Constitution gives Congress power over elections that could be used “to complete the system

of despotism,” and “if they may, they certainly will from the lust of dominion, so inherent in the

mind of man” (italics mine).389 This is the principle by which he argues that the constant

Federalist reassurance that representatives will be chosen from the people is absurd, “for what is

the primary object of government, but to check and controul the ambitious and designing, how

then can moderation and virtue be expected from men, who will be in possession of absolute

sway, who will have the United States at their disposal? They would be more than men, who

could resist such temptation! their being taken from among the people, would be no security;

tyrants are of native growth in all countries…”390 Despite his early shot at Adams’s reliance on

the form of government over and against its administration, Centinel goes on to blame the

Federalists for trying to “inculcate the opinion that forms of government are no security for the

public liberties, that the administration is everything,” and he spends his time arguing about how

the form of the proposed constitution should be altered accordingly.391

After Centinel asks his question about how “the welfare and happiness of the

community” can “be the result of such jarring interests” brought on by John Adams’s account of

the separation of powers, Centinel provides his answer: “Therefore, as different orders in

government will not produce the good of the whole, we must recur to other principles. I believe

it will be found that the form of government, which holds those entrusted with power, in the

greatest responsibility to their constituents, the best calculated for freemen.”392 Although

Centinel allows for representation as do all the Anti-Federalists, here again we see the

democratic principle employed as much as possible within a representative system: it is a “form

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of government that holds” representatives in the “greatest responsibility to their constituents” as

possible that is best. Centinel goes on to use the term “responsible” or “responsibility” another

nine times throughout his essays393 in reference to representation, more than any of the other

Anti-Federalists considered here and much more often than the Federalists considered here.394

There is little historical evidence amongst the Anti-Federalists in the debates of 1787-

1788 for a developed notion of “responsibility” defined as a positive sort of virtue inhering

within a person, as when we call someone a “responsible person” today. Noah Webster defined

“responsibility” in his 1806 American dictionary as “liability to answer or to pay, ability to

pay.”395 The verb “pay” is laden with mostly negative connotations which capture Centinel’s

understanding well: “to discharge a debt, atone, reward, suffer, beat, drub.”396 Webster defined

“responsible” as “answerable, accountable, able to.”397 To be “answerable” was to be “suitable,

accountable, like.”398 By way of contrast, along with meanings very similar to those above, the

entry for “responsible” in Webster’s modern dictionary includes “able to choose for oneself

between right and wrong”—a meaning that is manifestly not part of Centinel’s use of the

word.399 To create a system in which responsibility reins for Centinel and the Anti-Federalists is

to make the representative owe everything to their constituents to the greatest extent possible—

with the constant threat of a drubbing at the polls or a recall—while still keeping some form of

representation. Representatives must be held liable to their constituents, by their constituents,

and the only clear positive quality they need possess, given the meaning of the words at the time

and the context of Centinel’s essays, is that the representative to be “like” those they represent.

Other than this likeness, the ability of the representatives to discharge their duty in this formula

seems to come solely from the strength of the ties that the system puts on their relationship to

their constituents. As Centinel puts it: “The lust of power or dominion is that of nature, as seeks

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to overcome every obstacle, and does not remit its exertions, whilst any object of conquest

remains, nothing short of the plenitude of dominion, will satisfy this accursed demon: Therefore,

liberty is only to be preserved by a due responsibility in government, and by the constant

attention of the people; whenever that responsibility is lessened, or this attention remitted, in the

same degree has arbitrary sway prevailed.”400 It does not seem too great a stretch to take this to

mean that to the extent that the representative is able to act on his own, “arbitrary sway” prevails.

The gravitational pull of the people must always be stronger than that of the representative,

possessed as he is by the “accursed demon.”

Responsibility is thus only to be found in a pronounced democratic form of government

that restrains the lust of domination in representatives. For Centinel, such a government could be

found in Pennsylvania. For a decade previous to the ratification debate, Pennsylvania political

life had been dominated by constant battle between two parties: Federalists like James Wilson

and John Dickinson who tended to come from Philadelphia and the more urban eastern side of

the state, tirelessly opposed many of the most democratic aspects of the Pennsylvania

constitution and had advocated specific Constitutional reforms addressing these concerns for

years as a part of the Republican party. Meanwhile, those who thought like Centinel (George

Bryan had played a key role in this political history) were part of the Constitutionalist party,

which fought to keep the democratic elements of the Pennsylvania Constitution in place and was

especially popular in rural areas.401 As soon as the Constitution was sent out from the

Philadelphia Convention, the state divided into largely the same parties when it came to

ratification. This is why the Anti-Federalists roundly condemned the Constitution immediately,

before little by way of positive explanation or argument concerning the Constitution was

published by the Federalists. The Federalists were usually in the position of responding to well

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developed Anti-Federalist critiques that directly attacked the document. The Anti-Federalists

readily attacked certain aspects of the Constitution because they fit the Constitution into a

political dynamic they already knew, and read into it the same political and—what is more

significant, and not mentioned enough in scholarly literature—constitutional issues that divided

state politics.

While a few Anti-Federalists such as the Federal Farmer and Brutus might have been

occasionally willing to grant the “well born” their due and acknowledge their talents and even

good intentions, these are exceptions that prove a rule. Most Anti-Federalists, like Centinel,

generally describe the “natural aristocracy” as a group of elitists bent on despotic control; one

can find a similar view surfacing in even the more moderate strains of Anti-Federalist thought,

including the writings of the Federal Farmer and Brutus. Although it was nothing new in

Pennsylvania and other states, a sort of “class warfare” rhetoric often reached a feverish pitch in

the ratification debates. Centinel describes the parties in Pennsylvania in his usual colorful way:

The highest illustration of the excellence of the constitution of this commonwealth, is,

that from its first establishment, the ambitious and profligate have been united in a

constant conspiracy to destroy it; so sensible are they that it is their great enemy, that it is

the great palladium of equal liberty, and the property of the people from the rapacious

hand of power: The annals of mankind do not furnish a more glorious instance of the

triumph of patriotism over the lust of ambition aided by most of the wealth of the state.

The few generally prevail over the many by uniformity of council, unremitted and

persevering exertion, and superior information and address; but in Pennsylvania the

reverse has happened; here the well-born have been baffled in all their efforts to prostrate

the altar of liberty for the purpose of substituting their own insolent sway that would

degrade the freemen of this state into servile dependence upon the lordly and great:

However, it is not the nature of ambition to be discouraged; it is ever ready to improve

the first opportunity to rear its baneful head and with irritated fury to wreak its vengeance

on the votaries of liberty.402

Thus Centinel’s notion of responsibility is drawn from what he understands as the “glorious

instance” of the Pennsylvania constitution. For example, he argues that “[t[he highest

responsibility is to be attained, in a simple struction [sic] of government,” and if “you vest all the

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legislative power in one body of men (separating the executive and judicial) elected for a short

period, and necessarily excluded by rotation from permanency…you will create the most perfect

responsibility for them, whenever the people feel a grievance they cannot mistake the

authors…discarding them at the next election.” It is “[t[his tie of responsibility” that “will

obviate all the dangers apprehended from a single legislature, and will the best secure the rights

of the people.” 403 This is a telling statement, as the “dangers apprehended from a single

legislature” were generally understood to include an inability to slow and stop quick, mob-like

movements of majority opinion, and as we shall see below Federalists would occasionally refer

to the Pennsylvania government accordingly. Such a danger, in view of the Federalists, would

be exacerbated, not obviated, by a close tie of responsibility between representatives and the

people.

Centinel comes close to indirectly admitting the truth of Federalist condemnations of the

politics of states such as Pennsylvania when he says that just “because the legislatures of this and

other states have exceeded the due bounds of power, notwithstanding every guard provided by

their constitutions; that because the lust of arbitrary sway is so powerful sometimes as to get the

better of every obstacle” he does not think with the Federalists “that therefore we should give full

scope to it, for that all restriction would be useless and nugatory.”404 He simultaneously admits

that abuses have taken place while shifting the blame for them from the democratic structure of

the legislatures in question to the elite: in the next sentence he asserts the “primary object of

government” is to “check and controul [sic] the ambitious and designing” as cited above, making

clear he is not referring to the people as being moved by “the lust of arbitrary sway.”

Besides his advocacy of the unicameral legislature, Centinel believed along with other

Anti-Federalists that more frequent elections are key to producing responsibility in government.

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He cites Montesquieu and a speech given in parliament by Lord George Digby in support of his

views, the latter of whom Centinel quotes as saying “It hath been a maxim among the wisest

legislators that whoever means to settle good laws, must proceed…with a sinister opinion of all

mankind; and suppose that whosoever is not wicked, it is for want only of the opportunity. It is

that opportunity of being ill, Mr. Speaker, that we must take away, if we ever mean to be happy,

which can never be done, but by the frequency of parliaments.”405 Considering Centinel’s corpus

as a whole, it is difficult to see how any significant deliberation on the part of the representatives

concerning what ought to be done could be considered desirable by Centinel, as his general rule

seems to be that the less agency the representatives have, the better.

Centinel’s notion of responsibility ultimately depends on the people; the people must be

able to hold their representative as responsible as possible through the democratic means

Centinel holds up as ideal. Centinel is not unaware of the fact: immediately after he answers his

own question about Adam’s “jarring interests” and announces his notion of responsibility and

representation, Centinel asserts, as if by way of a necessary explanation of the obvious , that “[a]

republican, or free government, can only exist where the body of people are virtuous, and where

property is pretty equally divided[;] in such a government the people are the sovereign…”406

Like most of the participants in the ratification debates, however, he does not spend any

extended time explaining the virtue of the populace but goes on to discuss the proximate issue at

hand: the forms and institutions the Constitution would establish. In fact, this passage seems to

simply lay forth the premise that what is necessary for republican government—a virtuous

people and equally divided property—already exists in America. As we have seen, he is not

worried about the virtue of the people so much as the government of the Constitution being “so

independent of the people as to enable the administration to gratify every corrupt passion of the

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mind, to riot on your spoils, without check or control…” Under the Constitution there will be “no

restriction on the powers of the government, whose will and pleasure would be literally the law

of the land…”407

Yet as some of the quotations above reveal, Centinel thinks that human nature universally

desires power; nine times he refers to this as a “lust” for, alternatively, “power,” “dominion,”

“arbitrary sway,” “domination,” and “ambition.” 408 Lust, while maintaining the connection to

sexual desire its definition retains today, was more readily understood at the time to refer to

inordinate and immoral desire generally speaking. Given the tight connection between the

people and their representatives, is Centinel worried about this “lust,” the “corrupt passion of

mind,” or the unrestrained “will and pleasure” of the people as a whole? If the people

themselves no less than their administrators are “actuated by views of private interest and

ambition” and possessed by the lustful demon of dominion, “how is the welfare and happiness of

the community to be the result of such jarring interests?”

Centinel does refer to a defect in the people in the context of the ratification debate itself.

More than once he states that since forming a government is a difficult task—a difficulty, he

says, that is exacerbated by the problems facing the states and the fact that the people had no

longstanding, traditional form of government to rely on and rally around—the people are in need

of assistance in order to make the right choice.409 He urges that “[t]hose who are competent to

the task of developing the principles of government, ought to be encouraged to come forward,

and thereby the better enable the people to make a proper judgment; for the science of

government is so abstruse, that few are able to judge for themselves.” Yet, paradoxically, this is

only a problem because “without such assistance the people are too apt to yield an implicit assent

to the opinions of those characters, whose abilities are held in the highest esteem, and to those in

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whose integrity and patriotism they can confide; not considering that the love of domination is

generally in proportion to talents, abilities, and superior acquirements; and that the men of the

greatest purity of intention may be made instruments of despotism in the hands of the artful and

designing. If it were not for the stability and attachment which time and habit gives to forms of

government, it would be in the power of the enlightened and aspiring few, if they should

combine, at any time to destroy the best establishments, and even make the people the

instruments of their own subjugation.”410 Similarly, when he defends the freedom of the press

and open debate, Centinel admits also that “[l]iberty only flourishes where reason and knowledge

are encouraged.” While this statement implies a need for such encouragement amongst the

populace, he thinks these things are not being encouraged in the ratification debate because of

the wiles of the aristocratic Federalists and their minions.411

The closest he gets to admitting the potential of the people to make a mistake due to some

sort of moral failure on their own part is when he speaks of commerce. The Constitution is

designed to ensure a federal control over commerce, which Centinel and virtually everyone else

involved in the ratification debate supports in some measure. While he acknowledges that the

proposed Constitution will enable the federal government to control commerce, he laments that

“the people overlook and are not sensible of the needless sacrifice they are making for it.”412 He

worries out loud that “such is the impatience of people to reap the golden harvest of regulated

commerce, that they will not take time to secure their liberty and happiness, nor even to secure

the benefit of the expected wealth” because they “are weakly trusting their every concern to the

discretionary disposal of their future rulers.” They “are content to risque every abuse of power,

because they are promised a good administration, because moderation and self denial are the

characteristic features of men in possession of absolute sway. What egregious folly! What

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superlative ignorance of the nature of power does such conduct discover!”413 Insofar as this

quote seems to castigate the people it is a rare quote in all the Anti-Federalist literature examined

here. Centinel elsewhere indicates that even this error in judgment is largely that of those

involved in commerce directly, as he speaks specifically of “[t]he merchant” as “blindly

pursuing his seeming interest” and “the infatuation of some of our merchants” who “do not

consider that commerce is the hand-maid of liberty.”414 Still, it is clear that in some measure he

accuses the people themselves of being ignorant of human nature, although elsewhere he

professes his faith that with the help of writers like himself the people will ultimately make the

right choice and the Constitution will not be ratified as is. While Centinel certainly does not

believe this ignorance or any other prevents the people from ruling well once a democratic

regime to his liking is firmly established—in fact, he thinks that only the people as a whole as

opposed to one man or an elite few can rule well—he hints that something more is necessary

when it comes to founding a government. He thinks those who truly understand political

principles, who evidently are not many, ought to come forward at such times and persuade the

people.

Yet for Centinel, as we have seen above, the people are apt to be misled by those “whose

abilities are held in the highest esteem…not considering that the love of domination is generally

in proportion to talents, abilities, and superior acquirements...”415 He refers disparagingly to how

“[i]n a polished state of society, wealth, talents, address, and intrigue, are the qualities that attain

superiority in the great sphere of government.”416 Surely wealth, talents, address, abilities, and

superior acquirements are generally considered good for human beings to possess, and he seems

to admit that during times of constitutional change some sort of superior knowledge and action is

required of a few, and yet Centinel routinely describes such qualities as positively dangerous in

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political rulers. While Centinel knows that the “reason and knowledge” need to be encouraged,

he seems to think that most of those with the ability to encourage it are not to be trusted.

Federal Farmer

“It is the true republican principle…to draw in turn the well informed of every class into

the legislature.”417

The Federal Farmer provides one of the most developed and nuanced—and perhaps the

most moderate—account of the role of representation in Anti-Federalist thought.

In his fifth letter the Federal Farmer explains how his concern about the defects he sees in

the Constitution is exacerbated by the fact that the Convention was held in secret, and he calls for

a full and open debate to take place in the state conventions. In a telling sentence, he says “[o]ur

countrymen are entitled to an honest and faithful government; to a government of laws and not of

men…I wish to see these objects secured, and licentious, assuming, and overbearing men

restrained; if the constitution or social compact be vague and unguarded, then we depend wholly

upon the prudence, wisdom and moderation of those who manage the affairs of government; or

on what, probably, is equally uncertain and precarious, the success of the people oppressed by

the abuse of government, in receiving it from the hands of those who abuse it, and placing it in

the hands of those who will use it well.”418 In fact, one would not wish to “commit the many to

the mercy, prudence, and moderation of the few.”419 Like Centinel and Brutus, the Federal

Farmer does not regard a system depending “wholly” or solely on the virtue of the lawmakers as

a reliable foundation for good government or representation, nor does he hold that more general

qualities of ability ought to be the primary standard for choosing a representative.

When he decries the practice of statewide elections for representative office, emphasizing

the importance of smaller district elections for Congress, he says that “[b]y establishing district

elections, we exclude none of the best men from being elected; and we fix what, in my mind, is

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of far more importance than brilliant talents, I mean a sameness, as to residence and interests,

between the representative and his constituents...”420 (italics mine) He admits that “[t]o provide

for the people’s wandering throughout the state for a representative, may sometimes enable them

to elect a more brilliant or an abler man, than by confining them to districts” but he opposes such

a system because he thinks that “generally this latitude will be used to pernicious purposes…”421

How then, does he conceive of the “sameness, as to residence and interests” that ought to

determine who should be selected as a representative?

The Federal Farmer lays out the reason for elective representation in democratic fashion:

“It being impracticable for the people to assemble to make laws, they must elect legislators, and

assign men to the different departments of the government.”422 The problem with the

Constitution as proposed is that: “The people of this country, in one sense, may all be

democratic; but if we make the proper distinction between the few men of wealth and abilities,

and consider them, as we ought, as the natural aristocracy of the country, and the great body of

the people, the middle and lower classes, as the democracy, this federal representative branch

will have but very little democracy in it, even this small representation is not secured on proper

principles.”423 On the other hand, he says “that a fair and equal representation is that in which

the interests, feelings, opinions and views of the people are collected, in such manner as they

would be were the people all assembled—a fair representation, therefore, should be so regulated,

that every order of men in the community, according to the common course of elections, can

have a share in it—in order to allow professional men, merchants, traders, farmers, mechanics,

&c. to bring a just proportion of their best informed men respectively into the legislature, the

representation must be considerably numerous…”424 He insists that “each order [“aristocratical,

democratical, merchantile, mechanic, &c.”] must have a share in the business of legislation

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actually and efficiently. It is deceiving a people to tell them they are electors, and can chuse their

legislators, if they cannot, in the nature of things, chuse [sic] men from among themselves, and

genuinely like themselves.”425 It is not enough that one choose a representative from amongst

the people: the democratic principle rules his notion of representation, as one must be able above

all to choose someone like oneself in order for representation to be justified.

In spite of the common focus in the founding period on the “balance in the legislature,

and among the departments of government,” Federal Farmer says “the first of all among the

political balances,” ought to “preserve in its proper station each of these classes.”426 He describes

the orders or classes he was most concerned about as the “natural democracy”; besides the

formulations above he included “the yeomanry, the subordinate officers, civil and military, the

fishermen, mechanics and traders, many of the merchants and professional men” within that

broad category.427 As opposed to the natural aristocracy, they “are not so much used to

combining great objects; they possess less ambition, and a larger share of honesty: their

dependence is principally on middling and small estates, industrious pursuits, and hard

labour.”428 Whatever the defects of the people, they do not possess the ambition that shadows the

natural aristocracy: “The honours and emoluments of public offices are the objects in all

communities, that ambitious and necessitous men never lose sight of. The honest, the modest,

and the industrious part of the community content themselves, generally, with their private

concerns; they do not solicit those offices which are the perpetual source of cabals, intrigues, and

contests among men of the former description, men embarrassed, intriguing, and destitute of

modesty.”429 Generally speaking, the “natural democracy” consisted of “the great body of the

people, the middle and lower classes.”430

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The “aristocratic parts of the community,” on the other hand, or the “natural aristocracy”

consisted of “the few men of wealth and abilities.”431 The Federal Farmer counted this

“respectable order of men” as “about four or five thousand men; and among these I reckon those

who have been placed in the offices of governors, of members of Congress, and state senators

generally, in the principal officers of Congress, of the army and militia, the superior judges, the

most eminent professional men, &c. and men of large property.”432 He admits that those who are

part of the natural aristocracy generally “associate more extensively, have a high sense of honor,

possess abilities, ambition, and general knowledge.”433 As the mere fact he calls it a “natural

aristocracy” reveals, the Federal Farmer has no problem acknowledging the superior

characteristics, obtained and held without injustice, of what one might call an elite class. The

Federal Farmer describes three kinds of candidates for public office, the first of which is the

natural aristocracy. He sees some of the proponents of the Constitution as well meaning

aristocrats (along with others with bad intentions or an affinity for monarchy or aristocracy), who

perceive that “[t]he body of the people have acquired large powers and substantial influence by

the revolution. In the unsettled state of things, their numerous representatives, in some instances,

misused their powers, and have induced many good men suddenly to adopt ideas unfavourable to

such republics…which ideas,” the Federal Farmer believes (it is unclear why) that “they

[“numerous representatives,” “many good men”] will discard on reflection.”434 With keen

insight, he understands that the prevalence of these “unfavourable” ideas have made the natural

aristocracy fearful, helping to inspire the structure of the Constitution. While he stops just short

of blaming the people themselves, unlike some Anti-Federalists he admits that this concern is

partially justified as the representatives of the people have, in fact, “misused their powers” and

“many good men” have adopted ideas that undermine sound republican government. He further

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agrees with the Federalists in speaking about a topic not usually broached by Anti-Federalists

when he characterizes the second group of potential candidates as composed of “popular

demagogues” with “abilities” but “without principle” who ought to be prevented from attaining

office. This group is not the natural aristocracy, but rather a group of men who abuse the

democratic system to gain power.

He then describes the third group, in a statement that has caused one scholar to refer to

his view as a “hybrid” theory between the general Federalist and Anti-Federalist position:

The substantial and respectable part of the democracy; they are a numerous and valuable

set of men, who discern and judge well, but from being generally silent in public

assemblies are often overlooked; they are the most substantial and best informed men in

the several towns, who occasionally fill the middle grades of offices, &c. who hold not a

splendid, but a respectable rank in private concerns: these men are extensively diffused

through all the counties, towns, and small districts in the union; even they, and their

immediate connections, are raised above the majority of the people, and as

representatives are only brought to a level with a more numerous part of the community,

the middle orders, and a degree nearer the mass of the people. Hence it is, that the best

practical representation, even in a small state, must be several degrees more aristocratical

than the body of the people. A representation so formed as to admit but few or none of

the third class, is, in my opinion, not deserving of the name—even in armies, courts-

martial are so formed as to admit subaltern officers into them. The true idea is, so to open

and enlarge the representation as to let in a due proportion of the third class with those of

the first. Now, my opinion is, that the representation proposed is so small, as that

ordinarily very few or none of them can be elected; and, therefore, after all the parade of

words and forms, the government must possess the soul of aristocracy, or something

worse, the spirit of popular leaders. 435

The Federal Farmer, unlike other Anti-Federalists, admits that “the best practical representation,

even in a small state, must be several degrees more aristocratical than the body of the people.” 436

The natural democracy is thus not incapable of governing, nor devoid of its own elite groups.

Another example of his point can be seen in his description of the Constitutional Convention

itself, in which the Federal Farmer says one must realize that “at the same time, that we reflect

there were men of abilities and integrity in it, we must recollect how disproportionably the

democratic and aristocratic parts of the community were represented.” Notwithstanding the

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aforementioned ability and integrity of some of the natural aristocracy, when expressing his wish

that the state conventions revise the Constitution, the Federal Farmer proclaims his confidence in

their ability: although “each individual in the state conventions will not, probably, be so

respectable as each individual in the federal convention” he thinks that “the state conventions

will probably consist of...men of abilities, and versed in the science of government, collected

from all parts of the community and from all orders of men, it must be acknowledged that the

weight of respectability will be in them—In them will be collected the solid sense and the real

political character of the country.”

His overarching goal, however, is to bring representation “to a degree nearer the mass of

the people” than the Constitution would allow. He does not make the fact that the better

informed among the natural democracy are better informed the fundamental justification for

bringing them to the table. As we have seen, he thinks that the closer the representation is to the

people the better it will collect “the real political character of the country.” The real problem of

representation is “that men of these two classes, the aristocratical, and democratical, with views

equally honest, have sentiments widely different…”437 Even acting with the best of intentions,

the natural aristocracy cannot fully represent the natural democracy and, if left unchecked, the

natural aristocracy over time will make decisions that further its own interests as opposed to the

good of the natural democracy. Whether or not the natural democracy might do the same is not

something he considers. While he speaks of the defects attendant upon the natural aristocracy,

he does not similarly speak directly of the errors to which the natural democracy might be prone.

He says of himself that merely “[b][ecause we have sometimes abused democracy, I am

not among those men who think a democratic branch a nuisance; which branch shall be

sufficiently numerous, to admit some of the best informed men of each order in the community

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into the administration of government.”438 He believes his approach would have saved Rome,

whose people “always elected for their tribunes men conspicuous for their riches, military

commands, professional popularity, &c. great commoners, between whom and the noble families

there was only the shadowy difference of legal distinction.”439 Yet if “the people of Italy, in the

early period of the republic, selected yearly, or biennially, four or five hundred of their best

informed men, emphatically from among themselves, these representatives would have formed

an honest respectable assembly, capable of combining in them the views and exertions of the

people, and their respectability would have procured them honest and able leaders, and we

should have seen equal liberty established.”440 As we shall see below, he draws a very different

lesson from history than the Federalists, who use Rome as an example to prove much the

opposite.

Here again, we see the assumption similar to other Anti-Federalists that drives their view

of representation. As with Centinel and Brutus, although representatives of the people may have

made some mistakes, his confidence in the people is complete; indeed, he believes that the virtue

of the people must remain undisturbed:

When we find a numerous people settled in a fertile and extensive country, possessing

equality, and few or none of them oppressed with riches or wants, it ought to be the

anxious care of the constitution and laws, to arrest them from national depravity, and to

preserve them in their happy condition. A virtuous people make just laws, and good laws

tend to preserve unchanged a virtuous people. A virtuous and happy people by laws

uncongenial to their characters, may easily be gradually changed into servile and

depraved creatures. Where the people, or their representatives, make the laws, it is

probable they will generally be fitted to the national character and circumstances, unless

the representation be partial, and the imperfect substitute of the people. However, the

people may be electors, if the representation be so formed as to give one or more of the

natural classes of men in the society an undue ascendency over the others, it is imperfect;

the former will gradually become masters, and the latter slaves.”441

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Thus his confidence in the state conventions is rooted in the fact that, as he says: “I believe the

great body of our people to be virtuous and friendly to good government, to the protection of

liberty and property…442

In the same sentence above in which he declares his confidence in the people’s virtue,

however, the Federal Farmer, like Centinel, also refers to the need for some men above others to

assist the people: “…it is the duty of all good men, especially of those who are placed as

centinels to guard their rights–it is their duty to examine into the prevailing politics of parties,

and to disclose them–while they avoid exciting undue suspicions, to lay facts before the people,

which will enable them to form a proper judgment.”443 For instance, although he himself is “not

sufficiently acquainted with the laws and internal police of all the states to discern fully, how

general bankrupt laws, made by the union, would effect them, or promote the public good” one

assumes that other “centinels” might be.444 As we have seen, he also implicitly admits of the

defects of the “natural democracy” by means of highlighting what the natural aristocracy

possesses that the natural democracy does not. Further, the Federal Farmer acknowledges that

each order of professional men within the natural democracy should elect not just any among

them, but “their best informed men” should be brought “into the legislature.”445 This idea is at

the heart of his thought about representation, and republican government itself: “It is the true

republican principle to diffuse the power of making the laws among the people, and so to modify

the forms of the government as to draw in turn the well informed of every class into the

legislature.”446

While the Federal Farmer admits that “[e]ven in the most happy country and virtuous

government, corrupt influence in appointments cannot always be avoided; perhaps we may boast

of our share of virtue as a people, and if we are only sufficiently aware of the influence, biasses,

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and prejudices, common to the affairs of men, we may go far towards guarding against the

effects of them.”447 In other words, the people are virtuous enough to rule so long as the system

of government puts them in control and keeps them there. In effect, the Federal Farmer argues

that the Federalists have mistaken the supposed evils of democracy run amuck, drawing an

invalid universal from their own experience and a nation rebuilding after a devastating war rather

than a true picture of the actual state of the majority of their countrymen:

…we must judge from a view of the country and facts, and not from foreign newspapers,

or our own, which are printed chiefly in the commercial towns, where imprudent living,

imprudent importations, and many unexpected disappointments, have produced a

despondency, and a disposition to view every thing on the dark side. Some of the evils we

feel, all will agree, ought to be imputed to the defective administration of the

governments. From these and various considerations, I am very clearly of opinion, that

the evils we sustain, merely on account of the defects of the confederation, are but as a

feather in the balance against a mountain, compared with those which would, infallibly,

be the result of the loss of general liberty, and that happiness men enjoy under a frugal,

free, and mild government.448

While he does not cast aspersions on the people directly, like Centinel, the Federal Farmer

suggests that “commercial towns” may be a culprit for what ills the states, as well as “defective

administration.” With these problems too much in mind, the framers of the Constitution went to

a dangerous extreme. The problem with the Constitution as proposed is that “…important

measures may, sometimes, be adopted by a bare quorum of members, perhaps, from a few states,

and that a bare majority of the federal representatives may frequently be of the aristocracy, or

some particular interests, connections, or parties in the community, and governed by motives,

views, and inclinations not compatible with the general interest.”449

Like other Anti-Federalists, he is concerned about the structure of the new government,

due to a deficient system of representation and a lack of checks on elected officials which allow

them to act contrary to the public good: “in a government consisting of but a few members,

elected for long periods, and far removed from the observation of the people, but few changes in

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the ordinary course of elections take place among the members; they become in some measure a

fixed body, and often inattentive to the public good, callous, selfish, and the fountain of

corruption.”450 The virtuous people will keep their representatives virtuous by keeping them

close to themselves:

A legislature, in a free country, must be numerous; it is in some degree a periodical

assemblage of the people, frequently formed—the principal officers in the executive and

judicial departments, must have more permanency in office. Hence it may be inferred,

that the legislature will remain longer uncorrupted and virtuous; longer congenial to the

people, than the officers of those departments. If it is not, therefore, in our power to

preserve republican principles, for a series of ages, in all the departments of government,

we may a long while preserve them in a well formed legislature. To this end we ought to

take every precaution to prevent legislators becoming mere office-men; chuse them

frequently, make them recallable, establish rotation among them, make them ineligible to

offices, and give them as small a share as possible in the disposal of them.”451

The implication is clear, even though he admits the necessity of “principal officers in the

executive and judicial departments” to have “more permanency in office.” Even when he admits

that “Senators continued in offices three or four years, will be in them longer than any popular

erroneous opinions will probably continue to actuate their electors—men appointed for three or

four years, will generally be long enough in office to give stability, and amply to acquire political

information,” he is not refuting his point about what actually keeps the legislature “uncorrupted

and virtuous.”452 Much like the Federalists, he says that “by means of every law’s passing a

revision in the second branch, caution, coolness, and deliberation are produced in the business of

making laws.”453 Yet this more permanent aspect of government needs to be balanced—indeed,

purified—by the “uncorrupted and virtuous” legislators held close to the people.

The closer they are to the people, and the more they are reined in, the more

representatives will seek the public good. If “the federal legislators be excluded…” from taking

other government offices for a set time, “I think it would be an important point gained; as to

themselves, they would be left to act much more from motives consistent with the public

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good.”454 The guiding principle, again, is not to put trust into the virtue of political leaders by

providing them with unchecked power: “a nation, well versed in the science of government, does

not conceive it to be necessary or expedient for the man entrusted with the common defence and

general tranquility, to possess unlimitedly the powers in question, or even in any considerable

degree. Could he, whose duty it is to defend the public, possess in himself independently, all the

means of doing it consistent with the public good, it might be convenient: but the people of

England know that their liberties and happiness would be in infinitely greater danger from the

king’s unlimited possession of these powers, than from all external enemies and internal

commotions to which they might be exposed: therefore, though they have made it his duty to

guard the empire, yet they have wisely placed in other hands, the hands of their representatives,

the power to deal out and controul the means.”455 The reason for this is not because the

representatives are necessarily the best of men, nor primarily because they will be able to

deliberate about what ought to be done, but because they will accurately reflect the people

themselves. Since the people are virtuous, the more direct power they hold over their

representatives, the more beholden these forcibly uncorrupted representatives will be to the

virtuous many who restrain them.

Conclusion

The Anti-Federalists focus on the public good as it relates to representation is on how public or

common it truly is. They want to ensure that the government actually cares for the good of all,

and not just some, of the citizenry. They worry that, under the Constitution, the public good will

be separated from both the people writ large and the people considered as the communities that

make up the states; they think the federal government will empower a small faction of

unrepresentative rulers. The Anti-Federalist notion of representation assumes the virtue of the

people and their ability to make wise decisions that will fulfill the requirements of the public

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good. Yet they do not seem to concern themselves with how, exactly, this is to be accomplished

other than to ensure that the will of all the people be reflected in the federal government. The

Anti-Federalists do not define the public good—as it relates to representation, at least—in terms

other than the will of the people.

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Chapter 6: Representation and the Federalists

Introduction: Democracy and Representation The Federalists directly contradicted the Anti-Federalist view of representation. They utterly

rejected the notion that the desideratum of good government was a representative system in

which governmental officials merely acted as the “sign” of the people being signified. Their

responses often emphasize the extent to which an understanding of representation based on far

more than mere likeness between representatives and their constituents had already been adopted

in American practice. From the Federalist point of view, the Anti-Federalists were denying the

modern revisions of ancient or “pure” democracy and their implications that were by this time a

part of the tradition of American politics and constitutionalism. In fact, many Federalists saw

these very revisions as the single greatest development of political thought in the western

world—as that which finally made a form of popular government feasible. In order to

understand the reasons for which the Federalists asserted this, one must understand the Federalist

recognition of the weaknesses of democratic government. Unfortunately, what is likely one of

the most unique and significant aspects of the American founding, a topic which bears directly

on the issue of the underlying political thought of the founding and the structure of the

Constitution—namely, the nuanced Federalist understanding of the weaknesses of the

democratic form of government—is too often lost within simplistic caricatures.

Generally speaking, the consistent Federalist response to Anti-Federalists arguments

concerning representation was twofold. Underlying both themes was the routine Federalist

rejection of the purely democratic notion of representation based on an exact likeness between

constituent and representatives. For the Federalists, the role of representatives was to deliberate

towards the public good, and this required acting contrary to popular opinion if necessary.

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First, they refuted the claim that the Constitution would set up a system of representation

that would not reflect the interests of the people. The Federalists pointed to an overarching

principle of popular, representative government embodied in the Constitution and they asserted

their faith in this underlying majority rule. They made various arguments concluding that the

Constitution would indeed create representative bodies whose members were tied to the people

they represented, members who would continue to live among them under the same rule of law.

The government would remain popular, or democratic, simply because the people would elect

their rulers (either directly or indirectly) from among themselves.

Second, the Federalists emphasized that the common good could only be achieved by

ensuring that representation was truly good, arguing that the Constitution would establish a

representative body composed of citizens better able to ascertain and implement whatever course

of action was truly best for all together. They argued that the very framework of the Constitution

would, in various ways, encourage the members of Congress to deliberate and move towards

whatever course of action was ultimately consonant with the public good. They thought the

Articles had not created a government with the authority necessary to care for the public good,

both its structure, which was too dependent on the states, and its powers and purposes, were too

constrained. In their view, it was essential that representatives be able to discern and choose the

right course of action even over and against what many of the people represented might choose

at any given time. The Constitution would establish a system of representation that would

increase the possibility that men better possessed of the requisite experience, information,

knowledge, prudence and wisdom would obtain election; whoever was elected, the structure the

Constitution would establish would help encourage legislators to deliberate towards the public

good.

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Noah Webster Noah Webster emphasized the need for deliberation about the public good—arguably to a greater

extent than any other Federalist author. In Webster’s October 17, 1787 pamphlet, he begins by

describing the unique “origin of the American Republic” in terms reminiscent of the first

Federalist paper, which would be published ten days later. Rather than being “driven together by

fear and necessity” or “the result of a single man’s observations; or the offspring of particular

interests…[i]n formation of our constitution, the wisdom of all ages is collected—the legislators

of antiquity are consulted—as well as the opinions and interests of the millions who are

concerned. In short, it is an empire of reason.”456 The pamphlet is largely concerned with

representation, but similar to other Federalists, a significant theme throughout Webster’s account

of the topic is the rule of reason and law. As we shall see below, the Federalists frequently

referred to the failure as well as the successes of “the legislators of antiquity” in order to make

their case concerning representation.

Webster first lays out a first principle of popular government: while “our first idea of

political obligation” would be “that no man would be bound by a law to which he had not given

his consent” it is “impossible to unite the opinions of all the members of a community, in every

case; and hence the doctrine, that the opinions of a majority must give law to the whole State: a

doctrine as universally received, as any intuitive truth.” Accepting majority rule, while one

might think it follows that, “in a perfect government, all the members of a society should be

present, and each give his suffrage in acts of legislation,” it is not only the case that this sort of

direct democracy “is impracticable in large states” but that:

…even were it not, it is very questionable whether it would be the best mode of

legislation. It was however practised in the free states of antiquity; and was the cause of

innumerable evils. To avoid these evils, the moderns have invented the doctrine of

representation, which seems to be the perfection of human government.457

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In stark contrast to the Anti-Federalists, Webster explicitly rejects the notion of representation

considered as merely the practical outgrowth of the democratic principle, and calls the direct

form of democracy the cause of “innumerable evils” even as representation is the “perfection of

human government.” For many of the Federalists, representation was not a mere practical

outgrowth of democracy, but the signal achievement of western political thought that made

popular government possible.

The first example Webster gives of the wisdom of the Constitution “is the division of the

legislative into two branches.” He notes at that outset that while most states already had two

legislatures, such a system “…has its opposers, among whom are some respectable characters,

especially in Pennsylvania.”458 For instance, on October 5th, the week before An Examination

was published, the Philadelphia Independent Gazetteer had published Centinel’s widely

reprinted first essay which, respectable or not, praised Pennsylvania’s unicameral system in no

uncertain terms, as we have seen above. Despite the fact that only Pennsylvania and Georgia

utilized a unicameral system at the time, the impetus, focus and relevance of Webster’s pamphlet

arose from the fact that the ratification debates began amidst the virulence of Pennsylvania

politics. Unicameralism was not universally accepted even within Pennsylvania itself; many

state political figures generally inclined towards the Federalist position routinely lamented its

defects along with other perceived structural problems of the Pennsylvania Constitution that they

sought to change.

Yet by means of his argument for the superiority of a bicameral system Webster not only

sought to galvanize support and counter opposition in Pennsylvania but to lay forth the

superiority of the underlying Federalist understanding of representation more generally. As a

“Citizen of America,” Webster lived and worked in several states throughout his life, and it is

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likely that by employing a rhetorical strategy of attacking and associating a constitutional

arrangement unique among the states with Anti-Federalism, while associating the Constitution

and Federalist thought with a common feature of state constitutions, he hoped his pamphlet

would appeal to readers from other states. Many of the Federalists, like Webster, were eager to

expound the virtues of the least democratic components of early American constitutions. His

tactic highlights the extent to which the democratic principle towards which Anti-Federalist

thought tended had already been extensively refined, if not partially rejected, by American

political thought and practice since the principle Webster describes underlying bicameralism

manifestly runs contrary to the default Anti-Federalist position. Even more moderate Anti-

Federalists like the Federal Farmer, as we have seen, supported a bicameral system, and few

Americans would have likely thought that this aspect of their own state constitution was a

mistake.

Noah Webster continues his pamphlet after the passage above describing representation

as “the perfection of human government” to assert that once one accepts representation, one

might think that “all the representatives should be collected into one body, for the purpose of

debating questions and enacting laws.”459 Note that regardless of whether there are one or two

legislative bodies, Webster does not think representatives ought to simply declare the views of

the people, as Anti-Federalists emphasize, but to debate what ought to be done. Webster thinks

the institutional arrangement of two legislative bodies better achieves this deliberative purpose of

representation, assisting the process of “debating questions.” For instance, of Congress under the

Articles of Confederation he asks: “To what cause can we ascribe the absurd measures of

Congress, in times past, and the speedy recision of whole measures, but to the want of some

check? …some of their steps betray a great want of consideration—a defect, which perhaps

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nothing can remedy, but a division of their deliberations.”460 Two bodies would thus help

promote better consideration through dividing deliberation concerning public policy. A “check”

is required to “remedy” a “defect” in their deliberative process; this “check” will apparently

increase reasonable “consideration.”

When Webster goes on to give such examples of less democratic legislative bodies

preventing the errors of more popular legislative bodies, he makes very clear that the salutary

quality of bicameralism is to encourage men of wisdom and experience, in particular, to

deliberate: “…the design of a senate is not merely to check the legislative assembly, but to

collect wisdom and experience.”461 In another essay decrying the practice of legislative

instructions ordering representatives to cast their votes in accordance with the popular will

Webster says “[t]he design of choosing Representatives is to collect the wisdom of the State; the

Deputies are to unite their Councils; to meet and consult for the public safety…”462 The goal is

not for interests to clash in a mechanical system designed to calculate outcomes based on

numerical majorities, but for the combined wisdom of representatives to arise from meeting with

each other and uniting their thoughts by means of the structure of the system and their own

efforts, talents, and virtues.

In his pamphlet, Webster offers the examples of incidents in Maryland and Connecticut,

among others. In Maryland, when “[a] rage for paper money, bordering on madness, prevailed

in their house of delegates” it was “[t]he senate, like honest, judicious men, and the protectors of

the interests of the state” who “firmly resisted the rage, and gave the people time to cool and to

think. Their resistance was effectual—the people acquiesced, and the honor and interest of the

state were secured.”463 Here is a clear example of the Federalist understanding of the defects of

democracy. Note that “the people acquiesced,” indicating that the unthinking people in a “rage”

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were the source of the problem—a consistent Federalist theme that will be explored in the next

chapter. In Webster’s view it was no doubt the aforementioned collected “wisdom and

experience” that enabled the state senate to refuse to enact the popular will. In Connecticut,

while the “house of representatives” at one time demanded a rebuke of the national Congress,

“[t]he upper house, who understood the necessity and expediency of the measure, better than the

people, refused to concur in a remonstrance to Congress… All public bodies have these fits of

passion, when their conduct seems to be perfectly boyish; and in these paroxisms, a check is

highly necessary.”464 According to Federalists like Webster, the “public bodies” most

susceptible to “these paroxisms” are those closest to the people, and here too the upper house had

the “wisdom and experience” to understand what ought to be done “better than the people,” and

thus they understood that what the national Congress had done was not deserving of censure.

What becomes clear in the discussion of bicameralism is that Webster thinks the sort of

men who will be elected in the federal government will be more likely to be less inflamed by

their passions. A short Federalist piece, likely written by Noah Webster, which appeared in the

New York Daily Advertiser on February 19th, 1788, admits that the Anti-Federalist complaint

about legislative bodies overstepping their bounds is often true of the state governments, and in

fact is the very reason for establishing a government under the Constitution in which legislators

will more likely be more virtuous:

The Antifederal writers have taken great pains to excite our jealousy by endeavoring to

convince us, that those who are invested with delegated powers, are prone to make an

improper use of the confidence reposed in them by the people…That this is a truth which

does not depend upon theory or conjecture for its support, is felt and acknowledged by all

those who have had the misfortune to become public Creditors… And it is a notorious

fact, that an honest Carman’s obligation will be taken in preference to a Public Security.

This circumstance has naturally induced the great body of the people to wish for a

Government administered by the better sort of people; who have had something of a

liberal education, and who have been instructed in the principles of morality and common

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honesty; who possess such a sense of honor as to know and feel that frequent breaches of

Public Faith are disgraceful to the Union, and so much common sense as to discern that

the interest of the community or body politic, cannot be promoted by the ruin of Public

Creditors, men who have been and still are some of the best citizens.465

Here is a clear Federalist assertion that the federal government will more likely be composed of

men of better education and virtue than those in the state governments, a fact which some Anti-

Federalists admitted, as we have seen above, even as they decried its potential effects.

As we have seen, the Anti-Federalists repeatedly renounce complete dependence upon

the virtue or prudence of the lawmaker. Leaving aside the famed Federalist arguments that do

the same, Webster denounces any check or balance that would hinder the exercise of such virtues

by the legislator, as discussed further below, and he seemingly thinks one cannot avoid

depending to some extent on the judgment of representatives, nor should one want to. Referring

to the state legislatures, Webster asks in his pamphlet:

Why should more confidence be reposed in a member of one legislature than of another?

Why should we choose the best men in the state to represent us in Congress, and the

moment they are elected arm ourselves against them as against tyrants and robbers? Do

we not, in this conduct, act the part of a man, who, as soon as he has married a woman of

unsuspected chastity, locks her up in a dungeon? Is there any spell or charm, that

instantly changes a delegate to Congress from an honest man into a knave—a tyrant? I

confess freely that I am willing to trust Congress with any powers that I should dare

lodge in a state-legislature. I believe life, liberty, and property is as safe in the hands of a

federal legislature, organized in the manner proposed by the convention, as in the hands

of any legislature, that has ever been or ever will be chosen in any particular state.466

At some point, Webster seems to be saying, one simply has to trust the legislator, and he asserts

again that “the best men in the state” will be elected to Congress. Why would members of

Congress be worse than state legislators?

While Webster and the Federalists could easily make this sort of argument versus the

Anti-Federalists (who generally used their state legislatures as examples of a better system than

that which the Constitution would establish), Webster did not think that all the state legislative

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bodies were examples worthy of imitation. Since Pennsylvania had a more democratic system of

governance than other states, throughout his writings Webster directly contradicts Anti-

Federalist praise and uses the state as an example of the failure of Anti-Federalist thought. As he

says in his response to the “Dissent of the Minority of the Pennsylvania Convention,” one of the

first significant and widely circulated Anti-Federalist publications: “There is not a spot in the

United States, where the solemnity of contracts and grants, has been so sacrilegiously violated—

and the rights of men so wantonly and perseveringly abused, as by you and your junto in

Pennsylvania—except only, in the little detestable corner of the continent, called Rhode-

Island.”467 Pennsylvania is thus a singular example of the failure of unicameralism and the Anti-

Federalist notion of representation: “Pennsylvania exhibits many instances of this hasty

conduct…Such farces have been repeated in Philadelphia—and there alone. Had the legislature

been framed with some check upon rash proceedings, the honor of the state would have been

saved—the party spirit would have died with the measures proposed in the legislature. But now,

any measure may be carried by party in the house; it then becomes a law, and sows the seeds of

dissension throughout the state.”468

Two legislative bodies, besides checking potential errors between themselves, also help

diffract the “party spirit.” Webster sees the party spirit as a problem insofar as it hinders true

deliberation and decision, as he makes clear in a footnote to this passage:

I cannot help remarking the singular jealousy of the constitution of Pennsylvania, which

requires that a bill shall be published for the consideration of the people, before it is

enacted into a law, except in extraordinary cases. This annihilates the legislature, and

reduces it to an advisory body. It almost wholly supersedes the uses of representation, the

most excellent improvement in modern governments. Besides the absurdity of

constituting a legislature, without supreme power, such a system will keep the state

perpetually embroiled. It carries the spirit of discussion into all quarters, without the

means of reconciling the opinions of men, who are not assembled to hear each others’

arguments. They debate with themselves—form their own opinions, without the reasons

which influence others, and without the means of information. Thus the warmth of

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different opinions, which, in other states, dies in the legislature, is diffused through the

state of Pennsylvania, and becomes personal and permanent. The seeds of dissension are

sown in the constitution, and no state, except Rhode Island, is so distracted by factions.469

First, note again that the “most excellent improvement in modern governments” is

representation, and this is because representation allows the legislature to check popular will and

make better decisions than the people at large. The implication is that representatives are chosen

not to simply carry out the popular will, which would reduce the legislature to an “advisory

body,” but to govern, simply speaking. The problem Webster refers to is not public debate per

se, but the fact that this Pennsylvanian practice hinders the very purpose of the legislature, which

is to harmonize various opinions and make a determination about what course of action best

promotes the public good. Second, note that whoever the legislator is, the structure of the system

guides his action. For Webster, legislative bodies are “assembled to hear each others’

arguments” and they have the “means of information” with which to do so. In such bodies men

are forced to confront opposing opinions and, far from merely forcing numerical votes they also

possess the institutional “means of reconciling the opinions of men.” Far from leading to an

aristocratic faction that eventually rules for its own good, Webster thinks his conception of

representation, brought to light in the right governmental structure, will avoid harmful

“dissension” and “factions.”

In an essay written under the name “Giles Hickory” and published in his New York

American Magazine on February 1, 1788, Webster says more about the reason that the structure

of the legislature, given his understanding of representation, is significant: “…it is impossible

that the propriety of a measure can be ascertained, without the best general information, and a

ful[l] knowledge of the opinions of the men on whom it is to operate.”470 What is lacking to the

people is the ability to see the whole, the entirety of opinions for and against a given position,

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and this ability requires an institution that represents and channels the whole. He continues: “By

opinions here I would not be understood to mean, the various opinions formed on a view of a

particular interest, for these opinions may be obtained by sending to each district and collecting

instructions; but I mean the opinions of the whole society, formed on the information and debates

of the whole society. These opinions can be formed no where but in a convention of the whole

state or of their representatives.”471 An institution is thus needed to collect opinions and provide

the framework within which one must confront them, and this process is necessary in order to

obtain a view of the whole, which is necessary if one is to make the right decision for the whole.

The general debate over representation was embodied in the state convention debates

themselves. Amidst the democratic milieu of American politics at the time, it was not

uncommon, amidst term limits and the ability to recall their representatives, for constituents to

issue instructions to their representatives concerning votes and positions they were to take—as

Webster alludes to in the quotation above. Many delegates to the state conventions received

such instructions, and the practice was generally indicative of Anti-Federalist sentiments. In

Massachusetts, for instance, many Anti-Federalist towns issued strict instructions to their

delegates that they were not to vote for the Constitution under any circumstances, a practice

revelatory of the general Anti-Federalist notion of representation that underlies the bulk of the

ratification debate.472 The Federalists, on the other hand, often fought for time at the state

conventions in order to persuade an Anti-Federalist majority to vote for the Constitution. In

Massachusetts and elsewhere, the Federalists maneuvered to work through the text of the

Constitution from beginning to end, debating each line and section, while Anti-Federalists sought

to hold up or down votes. The Federalist notion of deliberation, albeit amidst complicated

political machinations and compromises, could be seen in action in various states as enough

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Anti-Federalist delegates changed their position allow for the passage of the Constitution. In

Massachusetts, several delegates ignored their instructions or the known Anti-Federal opinions

of the majority of their constituents and many suffered real consequences for their actions. In

New York, Melanchthon Smith (possibly the author of Brutus or the Federal Farmer) likely

sacrificed his entire career in state politics on account of his vote for the Constitution.

In another long neglected “Giles Hickory” in his New York American Magazine, Noah

Webster decried the practice of issuing legislative instructions, laying forth a notion of

representation that directly contradicted the Anti-Federalist understanding in no uncertain terms.

Webster lavished praised upon the published remarks of a delegate to the Massachusetts state

convention name Thomas Bourn, Esq. who resigned rather than follow his instructions to vote

against the Constitution. Webster quotes Bourn as saying, in part:

It is true, my sentiments at present are not in favor of the Constitution; open however to

conviction, they may be very different; when the subject is fairly discussed by able and

upright men. To place myself in a situation, where conviction could be followed only by

a bigotted [sic] persistence in error, would be extremely disagreeable to me. Under the

restrictions with which your Delegates are fettered, the greatest ideot [sic] may answer

your purpose as well as the greatest man. The suffrages of our fellow men, when they

neither repose confidence in our integrity, nor pay tribute of respect to our abilities, can

never be agreeable.473

Anti-Federalists like Brutus, as we have seen, thought representatives ought to “be possessed of

integrity to declare” (italics mine) the mind of the people”; if this was all that was allowed him

Thomas Bourn considered this a “refusal to repose confidence in” that very “integrity.”474 Under

such conditions, “the greatest ideot” would suffice just as well as a man of integrity. Webster

says of the speech that : “[s]uch a bold and honest independence of mind are the marks of a good

Legislator…I had rather be the author of that short address, than of all the labored dissertations

which have been written upon the proposed constitution.”475

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As we have seen, Webster says in his essay on legislative instructions that “[t]he design

of choosing Representatives is to collect the wisdom of the State; the Deputies are to unite their

Councils; to meet and consult for the public safety…” He continues: “[b]ut positive instructions

prevent this effect; they are dictated by local interests; or opinions formed on an imperfect view

of facts and arguments; in short they totally counteract the good effects of public deliberations,

and prevent those salutary measures which may result from united Councils. They make the

opinions of a small part of the State a rule for the whole; they imply a decision of a question,

before it is heard; they reduce a Representative to a mere machine, by restraining the exercise of

his reason; they subvert the very principles of republican government.”476 To put it mildly, this

notion is difficult to reconcile with the modern, scholarly notion of liberalism in which

legislative institutions are said to tally local interests and calculate a result. Webster’s

representative is expressly not a “mere machine,” and he is not speaking of mere checks and

balances, but a system in which checks and balances help influence the representative to exercise

his reason for the public good. Here Webster’s concern is not unrestrained passions but

legislative instructions—and therefore the potential of local interests to obscure or ignore the

good of the whole and cause facts and arguments to be ignored and misunderstood—playing a

similar role to unrestrained passions in an individual and hindering true deliberation terminating

in wise decisions. For Webster the entire purpose of representation, a part of “the very principles

of republican government” is the promotion of “the exercise of reason” in ascertaining what

ought to be done for the public good. As we have seen above, a legislative body of

representatives is needed in order for the representatives themselves to obtain a view of the

whole by being practically forced into hearing and engaging other opinions. Legislative

instructions negate this salutary quality of the structure of the representative body.

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In Webster’s essay against legislative instructions, he says whereas “[t]he oath required

of a Representative, before he takes his seat, binds him to vote or act from a regard to the public

good, according to his judgment and the best of his abilities…what judgment can a man

exercise, who is under the restraint of positive instructions?” While “[i]n his oath he has sworn

to act according to his judgment, and for the good of the people; his instructions forbid him to

use his judgment, and bind him to vote for a law which he is convinced will injure his

constituents.”477 Legislative instructions violate the true purpose of representation: “…the man

who is deputed to make laws for a State, and suffers a local interest to influence his conduct,

abuses a sacred trust; and the Representative who obeys his instructions, in opposition to the

conviction of his own mind, arising from a general view of the public good, is guilty of a species

of perjury.”478

The purpose of the representative is thus ultimately to work towards “a general view of

the public good” rather than remaining beholden to local interests or the majority opinion in his

district. For instance, as Webster says in his pamphlet:

…the senate should be considered as representing the confederacy in a body. It is a false

principle in the vulgar idea of representation, that a man delegated by a particular district

in a state, is the representative of that district only; whereas in truth a member of the

legislature from any town or county, is the representative of the whole state. In passing

laws, he is to view the whole collective interest of the state, and act from that view; not

from a partial regard to the interest of the town or county where he is chosen. The same

principle extends to the Congress of the United States.479

Webster and many other Federalists do not think the Federal Farmer and the general Anti-

Federalist understanding is completely incorrect—the Federalists generally think representatives

ought to make the local interests or majority opinion in their district clear to the rest of the

legislative body as part of deliberation. Webster says that “[a] legislature is supposed to consist

of men whom the people judge best qualified to superintend their interests,” although he does not

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think the “best qualified” are those merely most like the people.480 Yet Webster and other

Federalists assert this is merely the starting point of true deliberation. Again in his pamphlet he

says:

A delegate is bound to represent the true local interest of his constituents—to state in its

true light to the whole body—but when each provincial interest is thus stated, every

member should act for the aggregate interest of the whole confederacy. The design of

representation is to bring the collective interest into view—a delegate is not the legislator

of a single state—he is as much the legislator of the whole confederacy as of the

particular state where he is chosen; and if he gives his vote for a law which he believes to

be beneficial to his own state only, and pernicious to the rest, he betrays his trust and

violates his oath. It is indeed difficult for a man to divest himself of local attachments and

act from an impartial regard to the general good; but he who cannot for the most part do

this, is not a good legislator.481

Here again, we see that “the design of representation is to bring the collective interest into

view.” Thus, for Webster, a separation of local interest from the representative, far from being a

valid objection to the new Constitution, was in fact one of its salutary qualities:

These considerations suggest the propriety of continuing the senators in office, for a

longer period, than the representatives. They gradually lose their partiality, generalize

their views, and consider themselves as acting for the whole confederacy. Hence in the

senate we may expect union and firmness—here we may find the general good the object

of legislation, and a check upon the more partial and interested acts of the other branch.482

The doctrine of instruction, on the other hand, arises from “the opinion that a Deputy chosen by a

certain number of freemen, is their Representative only or particularly: It seems to be believed

that a Representative is bound to attend to the particular interest of the men who elect him, rather

than to the general interest.”483 For Webster, however, “[t]he reason why men are chosen by

small societies of freemen, and not by the whole body, is that the whole body cannot be well

acquainted with the most able men in the different parts of the state. It is the best expedient to

correct the defects of government, or rather, it is the best practicable mode of election.”484

Webster’s view could not be more opposed to the Anti-Federalists considered here—in fact, he

turns the “practicable” argument on its head. For Webster it is only practically necessary that

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representatives must be chosen by local communities, while they ought to vote for what is good

for all on principle. His focus when it comes to a principle of election is not mere likeness, but

ability, and this ability must be used to further the good of the whole.

Webster goes even further, however, in repudiating the Anti-Federalist understanding of

representation. As opposed to Centinel’s notion of responsibility and the tenor of Anti-Federalist

thought when it comes to representation, consider a footnote Noah Webster added to a

republishing of his response to the Anti-Federalist “Dissent of the Minority of the Pennsylvania

Convention” in 1790: “Some of the bills of rights in America declare, that the people have a right

to meet together, and consult for the public safety; that their legislators are responsible to them;

that they are servants, &c. Such declarations give people an idea, that as individuals, or in town

meetings, they have a power paramount to that of the Legislature. No wonder, that with such

ideas, they attempt to resist law” (italics mine).485 Considered in their role as representatives,

lawmakers are only responsible to the people via election, according to Webster. Webster was

unafraid of condemning what he viewed as overly democratic rhetoric concerning the role of

representatives under the Constitution:

I am sensible that it is a favorite idea in this country, bandied about from one demagogue

to another, that rulers are the servants of the people.3 So far as their business is laborious

and embarrassing, it implies a degree of servitude; but in any other view, the opinion is

totally false. The people ought at least to place their rulers, who are generally men of the

first abilities and integrity, on a level with themselves; for that is an odd kind of

government indeed, in which, servants govern their masters. The truth is, a

Representative, as an individual, is on a footing with other people; as a Representative of

a State, he is invested with a share of the sovereign authority, and is so far a Governor of

the people. In short, the collective body of Representatives is the collective sense and

authority of the people; and so far are the members from being the servants of the people,

that they are just as much masters, rulers, governors, whatever appellation we give them,

as the people would be themselves in a convention of the whole State.486

In other words, the governed must elect governors, who in general will be men worthy of their

ruling office. Webster does go further than most other Federalists when he asserts that

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representatives are, when assembled, possessed of the same power as a constitutional convention

as he continues:

…the public good or safety requires that the powers of a Legislature should be co-

extensive with those of the people. That a Legislature should be competent to pass any

law that the public safety and interest may require, is a position that no man will

controvert. If therefore it can be proved that the reservation of any power in the hands of

the people, may at times interfere with the power of the Legislature to consult the public

interest, and prevent its exercise, it must be acknowledged that such reservation is not

only impolitic, but unjust. That a Legislature should have unlimited power to do right, is

unquestionable; but such a power they cannot have, unless they have all the power of the

State; which implies an unlimited power to do wrong.487

While his assertion in this essay that that a sitting legislature is equivalent to a permanently

sitting constitutional convention is not representative of Federalist thought, his denial of the

Anti-Federalist complaint that the ability to act imprudently ought not to be given to legislators is

consonant with other Federalists. 488 For Webster, the power to do right necessarily implies the

power to do wrong, and while other Federalists do not think this power is unlimited, they uphold

the principle.

So long as the government is ultimately determined by popular election, the risk is not

only warranted but a sine qua non of good government’s very existence. For instance, Webster

says that while “a power to raise and equip troops at pleasure, may be abused, is certain; but that

the public safety cannot be established without that power, is equally certain.”

The liberty of a people does not rest on any reservation of power in their hands aside of

their Legislature; it rests singly on this principle, a union of interests between the

governors and governed. While a Legislator himself, his family and his property are all

liable to the consequences of the laws which he makes for the State, the rights of the

people are as safe from the invasion of power, as they can be on this side heaven. This

union of interest depends partly on the laws of property; but mostly on the freedom of

election. The right of electing rulers is the people’s prerogative; and while this remains

unabridged, it is a sufficient barrier to guard all their other rights. This prerogative should

be kept sacred; and if the people ever suffer any abridgment of this privilege, it must be

their own folly and an irrecoverable loss.489

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Here Webster, like James Wilson and others, asserts that election by and from the people, and

the fact that the representatives are under the same rule of law, is sufficient enough to fulfill the

necessity of likeness between the people and their representatives. The interests of the governors

and the governors are ultimately the same due to the fact that both are under the law, and election

gives the people enough power to ensure against tyranny. In Connecticut, for example, since

“…the Legislature is considered as the body of the people; and the people have not been taught

to make a distinction which should never exist, and consider themselves as masters of their

rulers” the “State is indebted for uniformity and stability in public measures, during a period of

one hundred and fifty years—a period of unparall[el]ed tranquility, never once disturbed by a

violent obstruction of justice or any popular commotion or rebellion.”490 It is enough that

“…being taken from the mass of the people, and having a common interest with them, they will

be influenced, even by private interest, to promote the public good; and that such a government,

which is a novelty on earth, is perhaps the best that can be framed, and the only form which will

always have for its object, the general good.”491

The Anti-Federalist argument, as we have seen, arises from the assertion that the

representatives under the Constitution will have an interest separate from that of the people. This

assertion is repeatedly rejected by Federalists based on election alone, and Webster is no

exception:

Your whole reasoning, and that of all the opposers of the Federal Government, is built on

this false principle, that the Federal Legislature will be a body distinct from and

independent of the people. Unless your opposition is grounded on that principle, it stands

on nothing: and on any other supposition, your arguments are but declamatory nonsense.

But the principle is false. The Congress, under the proposed Constitution, will have the

same interest as the people-they are a part of the people—their interest is inseparable

from that of the people; and this union of interest will eternally remain, while the right of

election shall continue in the people.”492

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Since “[t]he only barrier against tyranny, that is necessary in any State, is the election of

Legislators by the yeomanry of that State,” the Constitution is sound.493 In this context, “a Bill of

Rights against the encroachments of an elective Legislature, that is, against our own

encroachments on ourselves, is a curiosity in government.”494

Tench Coxe Like many Federalists, Coxe reassures his readers that the Constitution is democratic in language

very similar to one of James Wilson’s published speeches in the Pennsylvania ratifying

convention cited below: “The people will remain, under the proposed constitution, the fountain

of power and public honor. The President, the Senate, and House of Representatives, will be the

channels through which the stream will flow—but it will flow from the people, and from them

only. Every office, religious, civil and military, will be either their immediate gift, or it will come

from them through the hands of their servants.”495 As he says in his fourth American Citizen

essay, the Constitution contains “[n]o qualification in monied or landed property” and no

“preference” is given to “the preposterous distinctions of birth and rank.” The upshot is that—

despite the fact that they only directly elect the members of the House of Representatives—the

people are ultimately the source of power, and this fact is enough to render the system safe from

charges of latent aristocracy or future despotism.

In his fourth American Citizen essay, Coxe argued that elected offices under the

Constitution were "open to the whole body of the people. Any wise, informed and upright man, be

his property what it may, can exercise the trusts and powers of the state, provided he possesses the

moral, religious and political virtues which are necessary to secure the confidence of his fellow

citizens.”496 Coxe repeatedly refers to the virtue of elected officials as a standard by which men

ought to be elected. In his second American Citizen essay, Coxe says that the Senators under the

Constitution will be “chosen…for various purposes by the collected wisdom of their state

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legislatures.”497 Since Senators will not posses hereditary offices, but elected ones, “their

collective knowledge, wisdom and virtue are not precarious, for by these qualities alone are they to

obtain their offices.”498 In another essay he says: “If we elect wise and honest men as our state

representatives, they will chuse [sic] wise and honest men as our federal senators.”499 The

standard by which one should choose a representative, for Coxe, is tied up with knowledge,

wisdom, honesty and moral, political and religious virtues.

Coxe argued that federal representatives would be elected by this standard. In opposition

to Anti-Federalist fears about who will be elected under the new system, he says “I want those

good people to read the constitution quietly by themselves, and to judge like reasonable and free

men for themselves. I do not want to inflame their passions, nor to hide the subject from them. I

wish them to pass a sober, cool and honest judgment on it.” 500 Here again, we see the Federalist

understanding of the relationship between reason, freedom, and the passions He continues:

They will see that every man among them, whether protestant or catholic, rich or poor,

may elect or be elected. The Assembly may chuse any of them a Senator, or the people

may chuse any of them a fœderal Representative, or any of them may be chosen Vice-

President or President of the United States. Nothing in the constitution forbids it, though

they must be sensible that a man must be very good and very wise, to deserve and receive

such great trusts from the Assembly and from the people. However, as I said before, any

man, rich or poor, protestant or catholic, can be chosen, if he is thought fit by the state

legislature, or the people at large, and when he is chosen nothing can prevent his taking

his seat and performing his high duties.501

Again, for Coxe, “a man must be very good and very wise” to obtain office in the House and

Senate, and once office is obtained the legislator’s hands are not tied.

Worries about elections at the federal level favoring the wealthy, he argues further

elsewhere, are unfounded. Under the Congress of the Articles of Confederation, for example:

Many young men of genius and many characters of more matured abilities, without

fortunes, have been honored with that trust. Wealth has had but few representatives there,

and those have been generally possessed of respectable personal qualifications. There

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have also been many instances of persons, not eminently endowed with mental qualities,

who have been sent thither from a reliance on their virtues, public and private.”502

The requirement of a certain age, Coxe maintains, will help guarantee more virtuous and able

representatives. Of the Senate, he says: “No ambitious, undeserving or unexperienced youth can

acquire a seat in this house by means of the most enormous wealth or most powerful

connections, till thirty years have ripened his abilities and fully discovered his merits to his country—a

more rational ground of preference surely than mere property.” 503 Similarly, he says of the

House: “Here again, lest wealth, powerful connexions, or even the unwariness of the people

should place in this important trust an undeserving, unqualified or inexperienced youth, the

wisdom of the convention has proposed an absolute incapacity till the age of twenty-five.”504

Note the way in which Coxe nonchalantly and refers to the potential of the people to make a

mistake. After further praising the structure of the House of Representatives he says that these

are just “…some of the cautionary provisions of the frame of government your faithful Convention

have submitted to your consideration—such the foundations of peace, liberty and safety, which

have been laid by their unwearied labors. They have guarded you against all servants but those

‘whom choice and common good ordain,’ against all masters ‘save preserving Heaven.’”505

Similar to Noah Webster, Coxe thinks that legislatures ought to possess and do possess

“collected wisdom”; “wisdom and virtue” will be taken into account in elections; and wealth

and powerful connections will not dictate the winner of elections—but choice in light of the

common good ought to.

Given this understanding, of course, like Webster, Coxe thinks that the legislators must

be willing to vote according to their judgment rather than according to the opinion of the people

they represent. Coxe thinks that “the Senate will feel the mighty check of the House of

Representatives—a body so pure in its election, so intimately connected, by its interests and

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feelings, with the people at large, so guarded against corruption and influence—so much, from

its nature, above all apprehensions, that it must ever be able to maintain the high ground

assigned to it by the Federal Constitution.” Regardless of its purity and intimacy with the

people, Coxe also says that the Senate, being further removed from the people, will have the

ability to check the House of Representatives: “The Senate, though more independent of the

people as to the free exercise of their judgment and abilities than the House of Representatives,

by the longer term of their office, must be older and more experienced men…They may restrain

the profusion or errors of the House of Representatives...”506 The implication, yet again, is that

the Senate will be composed of more talented and virtuous men who will restrain democratic

excess, or the people gone wrong.

Like Webster and the other Federalists, Coxe denigrates local interests as they relate to

representation. He praises the Senate because under the structure of the Constitution its

members:

…are detached, as much as possible, from local prejudices in favor of their respective

states by having a separate and independent vote, for the sensible and conscientious use

of which, every member will find his person, honor and character seriously bound. He

cannot shelter himself, under a vote in behalf of his state, among his immediate

colleagues. As there are only two, he cannot be voluntarily or involuntarily governed by

the majority of the deputation. He will be obliged, by wholesome provisions, to attend his

public duty, and thus in great national questions must give a vote of the honesty of which

he will find it necessary to convince his constituents.507

Each Senator will be judged by the others, and the implication is that they will be shamed and

encouraged towards “the sensible and conscientious use of” their vote to the extent that

sometimes a Senator “will find it necessary to convince his constituents” when they disagree

with his vote. Once again, representatives will be encouraged by the structure of the

Constitution to vote for the public good—sometimes in spite of the views of the public.

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Oliver Ellsworth In a widely reprinted paragraph, Ellsworth warns his readers in typical Federalist fashion: “While

you deliberate with coolness, be not duped by the artful surmises of such as from their own

interest or prejudice are blind to the public good.”508 The statement implies its converse:

reasonable or “cool” deliberation, unhindered by “interest or prejudice,” is the means by which

one can see the public good. Elsewhere he says that since “…state assemblies may have their

fits of madness and passion” in which they seek to hinder voting for federal offices, Congress

has power under the Constitution: “should it ever happen, that the ignorance or rashness of the

state assemblies, in a fit of jealousy should deny you this sacred right, the deliberate justice of

the continent, is enabled to interpose…”509 The Anti-Federalists rarely speak of state

governments at all in such terms; for Ellsworth, “the deliberative justice of the continent” will be

lodged in the federal government by means of the structure of the Constitution.

Ellsworth says that “[t]he proper number to constitute a safe representation is a matter of

judgment, in which honest and wise men often disagree. Were it possible for all the people to

convene and give their personal assent, some would think this the best mode of making laws, but

in the present instance it is impracticable. In towns and smaller districts where all the people

may meet conveniently and without expence this is doubtless preferable.” A State legislature,

which takes “one or two from every town and district…composes an assembly not so large as to

be unwieldy in acting, nor so expensive as to burden the people.” “But,” continues Ellsworth, “if

so numerous a representation were made from every part of the United States” the sheer number

of representatives would cause practical problems due to size and expence. 510 He more than

hints however, that the reason to create representative legislatures on a larger scale is not merely

on account of practicality: “The Romans never discovered the secret of representation—the

whole body of citizens assembled for the purposes of legislation—a circumstance that exposed

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their government to frequent convulsions, and to capricious measures.” In typical Federalist

fashion, he praises a view of representation as an improvement upon ancient and medieval

practice insofar as it serves as a moderating influence on democracy.

He is also clear that local interests are not sufficient to guide the legislators:

As the state legislatures have to regulate the internal policy, of every town and

neighbourhood, it is convenient enough to have one or two men, particularly acquainted

with every small district of country, its interests, parties and passions. But the fœderal

legislature can take cognizance only of national questions and interests, which in their

very nature are general, and for this purpose five or ten honest and wise men chosen from

each state; men who have had previous experience in state legislation, will be more

competent than an hundred. From an acquaintance with their own state legislatures, they

will always know the sense of the people at large, and the expence of supporting such a

number will be as much as we ought to incur.511

The implication of Ellsworth’s statement here reveals a common Federalist theme: the national

legislature ought to be focused on national questions and interests, rendering a mirror like

representative body with an intimate knowledge of local “interests, parties and passions”

unnecessary.

Ellsworth, much the same as the others analyzed here, asserts that virtue is a standard by

which legislators should be elected; there is no reason to fear the power of elected officials under

the Constitution:

It is a strange madness of some persons, immediately to distrust those who are raised by

the free suffrages of the people, to sustain powers which are absolutely necessary for

public safety. Why were they elevated but for a general reputation of wisdom and

integrity; and why should they be distrusted, until by ignorance or some base action they

have forfeited a right to our confidence. 512

Of course, the implication is that representatives, once elected based on “a general reputation of

wisdom and integrity,” ought to be left to govern as they see fit. Ellsworth says that “ignorance

or some base action” ought to cause constituents to distrust their representatives; he does not

mention disagreements over policy or voting records

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James Wilson In his widely circulated speech, given at the Pennsylvania ratifying convention on November

24th, James Wilson praised the Roman historian Tacitus for his ability and his historical vantage

point at the end of antiquity. Yet Tacitus, says Wilson, “…considers, after all he had known and

read, a mixed government, composed of the three simple forms, as a thing rather to be wished

than expected. And he thinks, that if such a government could even be instituted, its duration

could not be long.”513 The reason Tacitus thought this way, Wilson says, is that Tacitus and the

rest of the ancients did not understand representation, which is “essential” to a government “that

can possess the qualities of freedom wisdom, and energy.” Wilson says America can implement

the only form of government yet created that has fully realized true representation, and thus

stands to gain the “glory” and “happiness” of this “chain” that connects the ruled to their

rulers.514 The implication is that representation allows for something like a “mixed government.”

In what does this development of representation consist, then? Is it a mere arrangement

of the democratic principle, or does it entail another view of government entirely? Why might it

be related to the idea of a mixture of various forms of government? Representation is obviously

tied by definition to democracy insofar as the lawmakers arise from the people and are selected

by them. Yet Wilson also speaks of another kind of government as having real advantages:

The advantages of aristocracy are wisdom, arising from experience and education. Its

disadvantages are dissensions among themselves, oppression to the lower orders.

The advantages of democracy are liberty, equal, cautious, and salutary laws, public spirit,

frugality, peace, opportunities of exciting and producing abilities of the best citizens. Its

disadvantages are dissensions, the delay and disclosure of public counsels, the imbecility

of public measures retarded by the necessity of a numerous consent.515

One cannot help but notice that the advantages of aristocracy seem to solve the defects of

democracy, albeit roughly speaking (imbecility, delay, disclosure, and dissensions would

seemingly be countered by wisdom born of experience and education). Recall that

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representation, according to Wilson as cited above, is “essential” to a government “that can

possess the qualities of freedom wisdom, and energy.” Here he says that democracy provides

freedom and energy, but not wisdom—this is the advantage of aristocracy.

Wilson goes on to ask, “What is the nature and kind of that government which has been

proposed for the United States by the late Convention?” He has already asserted that while “[a]

government may be composed of two or more of the simple forms above mentioned” like the

“British government,” this “would be an improper government for the United States because it is

inadequate to such an extent of territory; and because it is suited to an establishment of different

orders of men.” In response to Anti-Federalist complaints, he clarified his understanding in a

published convention speech given on December 4th, 1787, giving another version of his

definition of “an aristocratic government. It is a government where the supreme power is not

retained by the people, but resides in a select body of men, who either fill up the vacancies that

happen, by their own choice and election, or succeed on the principle of descent, or by virtue of

territorial possessions, or some other qualifications that are not the result of personal properties.

When I speak of personal properties, I mean the qualities of the head and the disposition of the

heart.”516 Thus, he answers his question about the “nature and kind” of government under the

Constitution in his November speech by saying: “In its principle, it is purely democratical. But

that principle is applied in different forms, in order to obtain the advantages and exclude the

inconveniences of the simple modes of government.” The “simple modes of government” can

only mean “simple” or pure democracy, or democracy solely. One wants the aforementioned

advantages of democracy, but one does not want the disadvantages.

Once again, Wilson stops short of drawing the conclusion that one also wants to

incorporate the advantages of aristocracy, instead retreating to a defense of the democratic

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principle of popular government that anchors the Constitution. In the proposed Constitution,

“we shall find the streams of power running in different directions, in different dimensions, and

at different heights watering, adorning, and fertilizing the fields and meadows thro which their

courses are led; but if we trace them, we shall discover, that they all originally flow from one

abundant fountain,” since “[i]n THIS CONSTITUTION, all authority is derived from the

PEOPLE.”517 However boldly proclaimed, this statement merely reasserts the obvious

democratic aspect of representation (note the similarity between Wilson’s language and Coxe’s

statements above on this point); he does not specify here what constricts and divides and

channels the streams of power.

Wilson’s answer to his opening question is telling in what it does not say. Wilson has

made clear that the advantage of democracy does not consist in the wisdom that arises from

experience and education—this is the advantage of aristocracy. Thus Wilson implies that

wherever we find such wisdom operating in a form of government—the same quality that is

emphasized by other Federalists, such as those considered above, when talking about

representation—we find an aristocratic element at work. Later on during the convention, he

made himself clearer. He says of the proposed Constitution:

In its principle, it is purely democratical; but its parts are calculated in such manner as to

obtain those advantages also which are peculiar to the other forms of government in other

countries. By appointing a single magistrate, we secure strength, vigor, energy, and

responsibility in the executive department. By appointing a Senate…we secure the

benefit of experience...518

Besides other, structural factors, the Senate itself will add one of the benefits of aristocratic

government—experience—to the system.

As can be gleaned from a close reading of the Anti-Federalists in the previous chapter,

the extent to which the Anti-Federalists find an aristocratic element based on experience and

education to be at work under the Constitution is often what divides them from the Federalists.

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In the Pennsylvania ratifying convention, John Smilie maintained that “Tho [sic] there be no

separate orders, there is a natural aristocracy,” which “the Senate will represent” even as “[t]he

greatest part of the members” of the House “will be attached to the natural aristocracy.”519

Given that “[t]he Senate were meant to represent an artificial aristocracy, and the House of

Representatives to represent the mass of the people,” Smilie argued in typical Anti-Federalist

fashion that the natural aristocracy would end up ruling with a corrupt hand.520 While they

argued that Constitution would not create an aristocratic form of government, but a popular one,

Wilson and other Federalists did not deny the rule of the natural aristocracy. As we have seen,

they rejected the Anti-Federalist condemnation of the natural aristocracy, which depended upon

an extremely democratic notion of representation. Recall that in the quotation above defining the

aristocratic form of government, Wilson implies that “qualifications” that are “the result of

personal properties,” and by “personal properties, I mean the qualities of the head and the

disposition of the heart,” would not entail an aristocratic form of government.521 Those with

better developed qualities of the head and dispositions of the heart, however, would by definition

be part of the natural aristocracy. Wilson replied to Smilie in the ratifying convention by denying

the danger of the rule of the natural aristocracy:

…an aristocracy means nothing more or less than a government of the best men in the

community, or those who are recommended by the words of the constitution of

Pennsylvania, where it is directed, that the representatives should consist of those most

noted for wisdom and virtue. Is there any danger in such representation? I shall never find

fault, that such characters are employed. Happy for us, when such characters can be

obtained. If this is meant by a natural aristocracy, and I know no other, can it be

objectionable, that men should be employed that are most noted for their virtue and

talents? And are attempts made to mark out these as the most improper persons for the

public confidence?522

The government under the Constitution, for Wilson, was not intended to prevent those men better

disposed to rule from ruling—nor did encouraging the rule of the wiser mean the rejection of

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popular government in principle. Wilson rejects the heart of the Anti-Federalist understanding

insofar as he indirectly denies the primacy of likeness over ability as a standard of representation.

The Federalist notion of representation made the rule of a natural aristocracy, or a roughly

meritocratic elite, possible while maintaining the principle of popular government. For this

reason, Wilson and others praised the modern understanding of representation as a development

which finally made a stable form of popular government possible.

Noah Webster was not the only one who used the ratification process itself as an example

of the principles of representation. In James Wilson’s November speech he describes his

experience in the Constitutional Convention: “It was apprehended, I believe, by some, that a

people so highly spirited, would ill brook the restraints of an efficient government.”523 He does

not deny that the price for the “efficient” federal government might be “restraints” upon the

people in some way. Instead, although he puts it gently, he makes clear that he rejects the Anti-

Federalist logic of representation:

I have supposed one of my constituents to ask me, why I gave such a vote on a particular

question? I have always thought it would be a satisfactory answer to say, “because I

judged, upon the best consideration I could give, that such a vote was right.” I have

thought that it would be but a very poor compliment to my constituents to say—“that, in

my opinion, such a vote would have been proper, but that I supposed a contrary one

would be more agreeable to those who sent me to the Convention.” I could not, even in

idea, expose myself to such a retort, as, upon the last answer, might have been justly

made to me. “Pray, sir, what reasons have you for supposing that a right vote would

displease your constituents? Is this the proper return for the high confidence they have

placed in you?” If they have given cause for such a surmise, it was by choosing a

representative, who could entertain such an opinion of them. I was under no apprehension

that the good people of this state would behold with displeasure the brightness of the rays

of delegated power, when it only proved the superior splendor of the luminary, of which

those rays were only the reflection.524

Wilson reveals that the “right vote” trumps what is “agreeable” to the people. The “superior

splendor” of the people is in choosing the representative, not in determining his vote. So long as

the people can choose a representative the principle of popular government is satisfied.

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For Wilson, the advantage of the Constitution is that it will encourage the people to

choose the right representatives. As he says in reply to Smilie:

We are told that the Representatives will not be known to the people, nor the people to

the Representatives, because they will be taken from large districts where they cannot be

particularly acquainted. There has been some experience in several of the states, upon

this subject, and I believe the experience of all who have had experience demonstrates

that the larger the district of election, the better the representation. It is only in remote

corners of a government, that little demagogues arise. Nothing but real weight of

character can give a man real influence over a large district. This is remarkably shown in

the Commonwealth of Massachusetts. The members of the House of Representatives are

chosen in very small districts, and such has been the influence of party cabal and little

intrigue in them, that a great majority seem inclined to show very little disapprobation of

the conduct of the insurgents in that state.525

For Wilson, the people need not know their representative personally in order to choose well; nor

is it necessary that the representative know their constituents. In fact, without knowing each

other personally, Wilson seems to think that it is more likely the right person be chosen, as “the

influence of party cabal and little intrigue” will be lessened while the influence of “real weight of

character” will be increased. In response to Anti-Federalist complaints to the contrary, Wilson

says “I apprehend it is of more consequence to be able to know the true interest of the people,

than their faces, and of more consequence still, to have virtue enough to pursue the means of

carrying that knowledge usefully into effect.”526 Note that Wilson speaks of the “true interest” of

the people, which may or may not be what they understand their interest to be. Further, rather

than the virtue to simply declare what the people say, the representative must have the virtue to

act on the knowledge of their true interests. True interests are often not merely local. Wilson

says that “[a] defect in minute information has not certainly been an objection in the management

of the business of the United States; but the want of enlarged ideas has hitherto been chargeable

on our councils…” Instead, “when we come to consider the objects of this government, we shall

find, that in making our choice of a proper character to be a member of the House of

Representatives, we ought to fix on one, whose mind and heart are enlarged; who possesses a

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general knowledge of the interests of America and a disposition to make use of that knowledge

for the advantage and welfare of his country. It belongs not to this government to make an act for

a particular township, county, or state.”

Even the idea that “all the people of the same society ought to meet in one place and

communicate freely with each other on the great business of representation,” this “most favorite

and constitutional idea,” is justified in the sense that if everyone is present “every member”

becomes “the representative of the whole community, and not of a particular part.” By the same

token, “[t]he larger therefore the district is, the greater is the probability of selecting wise and

virtuous characters, and the more agreeable it is to the constitutional principle of representation.”

Further, “in order to obtain that enlarged information in our Representatives, a large district for

election would be more proper than a small one…”527

Wilson made a speech on the fourth of July, 1788 that was printed five days later in a

supplement to the Pennsylvania Gazette. The speech, which could be regarded as the final word

from the victors of the ratification debate, was an exhortation to the people. Like so many in that

debate, Wilson made the connection between the virtue of the people and the virtue of their

rules; like so many a Federalist, he did not assume an unchanging virtue in the people. Most of

his speech is exhorting them to various virtues. His exhortations serve partially as a warning:

…if the people, at their elections, take care to chuse none but representatives that are

wise and good; their representatives will take care, in their turn, to chuse or appoint none

but such as are wise and good also. The remark applies to every succeeding election and

appointment. Thus the characters proper for public officers will be diffused from the

immediate elections of the people over the remotest parts of administration. Of what

immense consequence is it, then, that this PRIMARY duty should be faithfully and skilfully

discharged? On the faithful and skilful discharge of it the public happiness or infelicity,

under this and every other constitution, must, in a very great measure, depend. For,

believe me, no government, even the best, can be happily administered by ignorant or

vicious men. You will forgive me, I am sure, for endeavouring to impress upon your

minds, in the strongest manner, the importance of this great duty. It is the first concoction

in politics; and if an error is committed here, it can never be corrected in any subsequent

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process: The certain consequence must be disease. Let no one say, that he is but a single

citizen; and that his ticket will be but one in the box. That one ticket may turn the

election. In battle, every soldier should consider the public safety as depending on his

single arm. At an election, every citizen should consider the public happiness as

depending on his single vote.528

The “primary duty” of the people, for Wilson, is to vote for people who are “wise and good”; the

“public happiness” depends on it. There is a sense in which an error in election cannot be

corrected, and the Federalist conception of representation heightens the problem: there can be no

recall and no legislative instructions once a representative is chosen. As we will examine in

more detail in the next chapter, if the people do not choose the “wise and good,” Wilson asserts

that no matter how the government is formed, no matter how great its structure, it cannot be

“happily administered by ignorant or vicious men.”

Conclusion It is very difficult to square the Federalist understanding of representation for the public good

with some kind of “value neutral” democracy in which majorities decide what ought to be done,

creating the public good by means of their will. The reason this cannot be done, as has been

argued above, is that the Federalists consistently maintain that the majority may mistake what

ought to be done for the sake of the public good. In other words, the Federalists very clearly

hold that electoral might does not make right, and that what is good for all is not merely what all

desire. Yet they support popular government, in part because they think that representation

allows a revision to the democratic structure of government that moderates its tendency to allow

majority will to constitute what is considered right and wrong, or consonant with the public

good. As Storing says, “the deeper Federalist argument sees representation as something much

more than a device for mirroring popular opinions and interests.”529 As opposed to the Anti-

Federalists, “the Federalists would stress the filtering effect of representation; they would accept

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the natural leadership of the influential few, attaching it to government and directing it toward

the public good.”530

As part of directing this leadership towards the public good, the Federalist idea of

representation and the public good highlights their recognition that popular government does not

negate the need for an authority that seeks to achieve the public good. They see the need for a

structure, however limited its purpose, that is ordered to allowing federal officials to purse the

public good in certain respects. This point is easy to miss as it is obvious. The Federalists want

to ensure that the federal government has the power and structure of a true government, and not

just that of a confederation. The mere fact that representatives will be elected into such a

government, structured to encourage deliberation about what is good for the whole, with power

to enact such policy, is an improvement over the government of the Articles. Their comments

about what sort of man will more likely be elected to serve in such a government, and their role

within it, is unambiguous. The Federalists believe that it will be more likely that more capable,

knowledgeable, virtuous, and wise men will be elected than are under the Articles or the states;

further, they believe these men will be more likely to have a disposition to pursue the true public

good of the country, over and against the people in some ways when necessary.

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Chapter 7: Virtue and Licentiousness

Introduction: Licentiousness and Ratification It should be clear from the preceding chapters that the Federalists speak of the public good in

terms of representation in a manner compatible with a notion of the public good that is not

reducible to a collection of individual or private goods, whereas the Anti-Federalist view of

representation at the national level does not seem compatible with a substantial notion of the

public good. Yet compatibility is not identity, and the full notion of the public good as regards

the Federalists and Anti-Federalists is not made clear by a consideration of representation alone.

One could still object: what of the incessant talk of the securing of rights and liberties by

all sides? Although the Federalists speak of the public good, do they really mean it? Does their

notion of representation prove that by speaking of the public good they mean more than the

promotion of an interdependent collection of individual or private goods? What if the “wisdom”

and “virtue” of lawmakers simply referred to an ability to perceive the best course of action for

promoting exclusively private goods and their attendant individual happiness? How are we sure

that the deliberative process the Constitution encourages required more than the will of the

public only to fulfill as many interdependent private goods as possible by means of a framework

maintained by developed skills of elite political craftsmen? Have we really countered the

objection that the language of liberalism presents, spread as it is throughout the rhetoric of both

sides as relates to the protection of rights, and the maximization of liberty or freedom? If the

description of representation presented above is correct, what do we make of this language?

In order to further uncover the underlying philosophy of the ratification debate and judge

the adequacy of the idea that the founding generation designed the Constitution for the sake of

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autonomous individualism, or the maximization of liberty for the sake of private goods, I turn

next to the notion of morality, especially as relates to liberty, in the ratification debate.

Patrick Deneen recently argued that the Anti-Federalists “saw in the founding documents

a logic that would eventually undermine virtue and the proper understanding of true liberty (as

the capacity for both self-restraint and virtue) for the sake of liberty defined as absence of

constraint.”531 While there is virtually no evidence that the Anti-Federalists thought such a thing,

the opposite might be deemed true: as we shall see, the Federalists repeatedly and explicitly

reject the notion of “liberty defined as absence of constraint,” as part of their explanation of the

need for the Constitution, especially in relation to commerce. In fact, throughout their writings

the Anti-Federalists seem to speak of liberty in this so-called “modern” sense far more often the

Federalists did.

I discuss three themes below. First, the role of the virtue of the people at large in

Federalist and Anti-Federalist thought: as we have already seen, the Anti-Federalists consider the

people to be virtuous enough such that representation ought to seek to absolutely reflect majority

rule, or the exact wishes of constituents. As we have also seen, the Federalists reject this

assumption; however, they too assume that the people are virtuous enough, in their era at least, to

elect leaders that will seek the public good. Second, the Federalists maintain that the constitution

is in part established to prevent licentiousness, or the wrong use of liberty, on the part of the

people and the states; the Anti-Federalists reject there is a need for the Constitution in this

respect. Third, I will take up a particular example common to both sides but often misconstrued

or ignored in modern scholarship: both sides speak of commerce in moral terms. Yet the Anti-

Federalists do not directly assert that the Constitution will erect a commercial republic that is

inimical to virtue as is commonly assumed; whereas the Federalists assert that the Constitution is

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needed precisely in order to ensure justice and virtue triumph over licentiousness when it comes

to commercial concerns.

License, Licentious, Licentiousness One of the most obvious entry points into this theme of the debate over the Constitution is the

use of the word “licentious” or “licentiousness” in the moral case for the Constitution made by

the Federalists and the denial of the problem by the Anti-Federalists. The English word

“license” derives from the Latin, licentia, which meant “freedom, liberty, leave to do as one

pleases, license”; licentia could also, however, connote “[l]iberty which one assumes, boldness,

presumption, license” or “[u]nrestrained liberty, unbounded license, dissoluteness,

licentiousness.”532 Set within a roughly continuous moral understanding of human nature,

centuries old, with roots planted at the heart of traditional western thought, “licentia” and its

derivatives retained their various meanings and immoral connotations in near identical fashion in

their English cognates.

These concepts were more broadly understood and sharper in the minds of readers at the

time of the founding than they are today, set as they were within an understanding of the

workings of human nature that is not as commonly accepted or understood as it was during the

lives of the founding generation, in a similar manner to the word “virtue.” The Oxford English

Dictionary, for instance, defines “licentious” today as “[c]haracterized by licence or excessive

assumption of liberty.” Of the three specific uses of the word, the second is “[u]nrestrained by

law, decorum, or morality; lawless, lax, immoral.” Yet this is now deemed “rare on account of

the prevalence” of the third, which “in modern usage” is the “prevailing sense”: “disregarding

the restraints of chastity; libertine, lascivious, lewd.”533 Similarly, licentiousness, "or “[t]he

quality of being licentious,” retains the notions of “[a]ssumption of undue freedom; disregard of

rule or correctness; laxity, looseness.” Yet the second specific usage in the OED—“disregard of

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law, morality, or propriety; outrageous conduct” is “[n]ow rare” while “lasciviousness,

lewdness” remains common.534

The English “licentious” comes from the Latin word, licentiōsus, which can be translated

as “full of freedom or license, over-free, unbridled, unrestrained, wanton, licentious.”535 Webster

defined “licentious” in similar fashion: “unrestrained, loose, presumptuous.”536 His definition is

worth examining closely. “Unrestrained” was defined as “not confined, licentious, loose.”537

Similar to “license,” as an adjective “loose” meant “unbounded, lax, wild, wanton”; as a noun it

meant “liberty.”538 “Presumptuous” was defined as “arrogant, insolent, irreverent” and

“presumptuousness” was defined as “rashness, excess of confidence.”539

Similarly, “licentiousness” was defined as “a contempt of just restraint.”540 Webster

defined “restrain” as “to withhold, keep in, curb, suppress.”541 These words, in turn, had a

potentially more positive meaning than perhaps they do today, imbued as they are now with

negative psychological connotations: “curb” could mean to “manage” or “bridle”542; “suppress”,

unburdened by the connotations of modern psychology, could mean to “crush” or “subdue.”543

Webster qualifies the restraint that licentious rejects as that which is “just.” For Webster and the

founding generation, licentious and licentiousness refer to a general disregard for a standard, for

the right use of human powers—the just restrictions on freedom.

Consonant with their Medieval Latin branches and far earlier roots, “licentious” and

“licentiousness” thus implied a moral universe in which freedom needed to be restrained,

directed, channeled, or bridled for greater purpose. Each of the three words in Webster’s

definition of “licentious”—“unrestrained, loose, presumptuous”—implies something other than

itself and the human being it might apply to. His definition implies a standard or purpose that

might channel and direct liberty, acting as its limit. “Licentious” entails a willful wrong in

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relation to the right use, understanding, and purpose of liberty—along with a presumptuous

ignorance that is not only blind to its failings, but thinks itself justified in its rejection of any

form of stricture in its way.

Whoever employed the word “licentious” or “licentiousness” at the time of the founding

implied that liberty is not simply good nor even morally neutral and that it is wrong for human

beings to consider it so. In fact, the word itself stands as direct repudiation of the idea that rights,

liberty, or freedom are simply goods in themselves, or untethered or undirected by any notion of

what is, simply speaking, good. The meaning of licentiousness contradicts the value-free

understanding of liberty, revealing the ambiguous nature of freedom which, far from being

considered an unmitigated good, was considered something that could either be used rightly or

wrongly. The very definition of the word constitutes a denial that liberty is the mere absent of

constraint and carries with it instead the notion of some form of self-rule.

Anti-Federalists

Liberty & Licentiousness

The Pennsylvania Herald reported this exchange from the Pennsylvania ratifying convention on

December 1st, 1787:

“Liberty and happiness,” says Mr. [James] Wilson, “have a powerful enemy on each

hand; on the one hand tyranny, on the other licentiousness. To guard against the latter, it

is necessary to give the proper powers to government; and to guard against the former, it

is necessary that those powers should be properly distributed.” “I agree,” replies Mr.

Smilie, “that it is, or ought to be, the object of all governments to fix upon the

intermediate point between tyranny and licentiousness; and, I confess, that the plan

before us is perfectly armed to repel the latter, but I believe it has deviated too much on

the left hand, and rather invites than guards against the approaches of tyranny.”544

Even the most vociferous Anti-Federalists seemed to acknowledge the validity of the concept of

licentiousness, and occasionally allude to the problem it presents in a popular form of

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government. Yet they generally denied that the problem was as serious as the Federalists

thought it was, even if they admit, like Smilie, that the Constitution could help solve it.

Centinel, for instance, blames the acceptance of the Constitution by Massachusetts on

“[t[he late alarming disorders which distracted that state, and even threatened subversion of all

order and government, and were with difficulty suppressed.” Shays’s Rebellion and the general

unrest surrounding it “occasioned the greatest consternation among all men of property and rank:

in this disposition even the most high toned and arbitrary government became desirable as a

security against licentiousness and agrarian laws; consequently the new constitution was

embraced with eagerness by men of these descriptions.”545 Centinel says that “[t]he evils of

anarchy have been pourtrayed [sic] with all the imagery of language, in the glowing colours of

eloquence; the affrighted mind is thence led to clasp the new constitution as the instrument of

deliverance, as the only avenue to safety and happiness.” Yet he thinks that even “[i]f

anarchy…were the inevitable consequence of rejecting the new constitution, it would be

infinitely better to incur it; for even then there would be at least the chance of a good government

rising out of licentiousness” as opposed to the certain “despotism” that would be the result of the

Constitution.546

As we have seen, he and other Anti-Federalists think “the opinions of great men” (i.e.,

the natural aristocracy, which included many of the Federalists) “are more frequently the dictates

of ambition, or private interest” than the opinions of the average citizen.547 Centinel and other

Anti-Federalists did not explicitly deny the potential for licentiousness amongst the majority, but

they did not regard this as a matter of great concern; if anyone was licentious and dangerous to

the nation, it was the natural aristocracy or those who would be elected into the new government,

possessed as they were of “the lust of power or dominion.” “Therefore liberty is only to be

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preserved by a due responsibility in government,” continues Centinel; he did not consider

licentiousness amongst the populace, on the other hand, or “due responsibility” in the people and

the state governments, to be a serious danger.548

Similarly, consider the Federal Farmer’s complaint in Letter V once again. He says his

worry about the defects he sees in the Constitution—which, he thinks, could lead to the rule of

the natural aristocracy—is exacerbated by the fact the Convention was held in secret, and he

calls for a full and open debate to take place in the state conventions: “Our countrymen are

entitled to an honest and faithful government; to a government of laws and not of men…I wish to

see these objects secured, and licentious, assuming, and overbearing men restrained; if the

constitution or social compact be vague and unguarded, then we depend wholly upon the

prudence, wisdom and moderation of those who manage the affairs of government...”549 For the

Federal Farmer, however, the “licentious” that the Constitution ought to concern itself with are

the aristocratic few. He makes clear in Letter VII that his major fear is “the constant liability of a

small number of representatives to private combinations; the tyranny of the one, or the

licentiousness of the multitude, are, in my mind, but small evils, compared with the factions of

the few.”550 As we have seen, his statement is representative of the Anti-Federalists as whole in

that virtually none express serious concern about “the licentiousness of the multitude” in respect

to the debate over the form the federal government ought to take.

Another sign of the difference between the two sides can be seen in the simple fact that

the word “license” (in the sense of excessive or illicit use of freedom), “licentious,” and

“licentiousness” are used much less by the Anti-Federalists than they are by the Federalists.

Despite the fact that the total word count for the five Anti-Federalists considered here is far

greater than that of the five Federalists, the four quotations above are the extent of the Anti-

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Federalist’s use of these words; whereas the five Federalists use them ten times in reference to

the people at large.

Among the five Anti-Federalists considered in these chapters, there is one exception that

proves the rule. Agrippa uses the problem of the “tyranny of the majority” or the immorality of

the people at large to argue for a bill of rights:

I know it is often asked against whom in a government by representation is a bill of rights

to secure us? I answer, that such a government is indeed a government by ourselves; but

as a just government protects all alike, it is necessary that the sober and industrious part

of the community should be defended from the rapacity and violence of the vicious and

idle. A bill of rights therefore ought to set forth the purposes for which the compact is

made, and serves to secure the minority against the usurpation and tyranny of the

majority. It is a just observation of his excellency doctor Adams in his learned defence of

the American constitutions, that unbridled passions produce the same effect whether in a

king, nobility, or a mob. The experience of all mankind has proved the prevalence of a

disposition to use power wantonly. It is therefore as necessary to defend an individual

against the majority in a republick, as against the king in a monarchy. Our state

constitution has wisely guarded this point. The present confederation has also done it.551

This is one of the few times an Anti-Federalist confronts the problem directly without

downplaying its significance. Agrippa does not speak of the problem when it comes to the rest

of the federal structure of government, but he does bring it up as justification for a bill of rights.

Storing mentions Brutus, much as I have done in Chapter Four, as an example of the Anti-

Federalists ignoring the problem, but Storing goes on to overstate their understanding of the

problem: “In general, however, the Anti-Federalists acknowledged the possibility of majority

faction and the need to guard against it, even though this danger typically occupied a less

conspicuous place in their catalogue of dangers than in that of the Federalists.”552 Storing says

that “[g]overnment by the people or, in practice, majority rule was accepted by the Anti-

Federalists as the foundation of free government in America, but…majority rule was not

generally thought to be the very definition of free government, because it can lead to unjust

deprivations of individual liberty. This was, indeed, one of the reasons some of the Anti-

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Federalists wanted a bill of rights.”553 In the context of the ratification debates, this is a curious

thing to say since the Anti-Federalists frequently argued that government and government

officials that mitigated against majority rule would indeed lead to unjust deprivation of

individual liberty. Besides the passage above from Agrippa, Storing only cites one other

passage, from the Anti-Federalist Maryland Farmer, that similarly argues for a bill of rights in

light of the danger of majority rule. One might add a passage referring to “popular instability”

from the moderate Federal Farmer in which he praises the bicameral legislatures of various

states, remarking that “[i]t is amazing to see how ingenuity has worked in the several states to fix

a barrier against popular instability.”554

Perhaps Storing had other references in mind, but outside of the three cited abovevit, the

Anti-Federalists examined here do not show concern with the misuse of liberty on the part of the

people; rather they are near obsessed with the power of government to constrain the liberty of the

people, and they frequently justify such an obsession as a healthy habit of a free people. As

Pangle notes, the Anti-Federalists are much more likely to give accounts of the foundations of

government in terms of individual rights. As opposed to the repeated Federalist qualifications of

liberty as it is rightly or wrongly understood described below, the Federal Farmer’s more neutral

definition of liberty is typical of the Anti-Federalist emphasis: “Liberty, in its genuine sense, is

security to enjoy the effects of our honest industry and labours, in a free and mild government,

and personal security from all illegal restraints.”555

Commerce & The Anti-Federalists

Perhaps the most glaring and longstanding exaggeration in modern scholarship as

concerns the ratification debate is the myth that the Anti-Federalists were concerned that the

Constitution would institute a commercial republic, wisely decrying the same excesses and

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problems modern scholars perceive to exist in post-industrial American society. On the other

hand, this view generally maintains that the Federalists sought to institute exactly this sort of

commercial republic without regard to morality in terms of autonomous, contracting individuals.

Once this keystone of modern understanding is removed, entire edifices of various schools of

thought soon topple. Both Federalists and Anti-Federalists alike support some version of a

commercial, as opposed to a martial, republic; yet both sides also warn of the attendant dangers

of something akin to a commercial republic. All speak of commerce in terms of morality. In

fact, the Federalists consistently assert that the Constitution is needed in order to ensure

commerce is conducted in accord with justice while the Anti-Federalists usually decry luxury as

the real source of America’s problems as they argue that the Constitution is unnecessary.

Of all the Anti-Federalists, Agrippa is in some ways the most easily associated with the

modern scholarly notion of liberal political philosophy, which is likely why other scholars more

firmly ensconced within that interpretative tradition find good reason to cite him. Pangle quotes

Agrippa as an example of the truth of Ralph Lerner’s contention that “[e]ven the Anti-

Federalists, who oppose the Constitution in part in the name of a more virtuous vision of society,

are practically unanimous in their commitment to a commercial society and an economy of

growth.”556 Indeed, one could plausibly argue that Agrippa goes much farther than Publius does

in support of a commercial republic that includes a wide variety of disparate economic interests:

Agrippa says that intercourse between the states and their union should be “founded on

commerce and mutual want” and virtually nothing else.557 This is partly why he is prone to

deny that what he deems a serious economic sacrifice for the sake of a presumed greater national

good should be made by “the Massachusetts.”

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A close reading of Agrippa in the context of the ratification debate leads one to question

the ease with which Pangle uses him to make his case. Although it is apparent from his essays

that Agrippa thinks that commerce is a vital aspect of society, his argument is that commerce is

the primary bond between the states, a bond which properly ought to lead to confederation rather

than a full government. Agrippa does not think that commerce isolates individuals; rather, he

thinks it brings them together. “A diversity of produce, wants and interests, produces commerce,

and commerce, where there is a common, equal and moderate authority to preside, produces

friendship.”558 “The authority of Congress to decide disputes between states is sufficient to

prevent their recurring to hostility: and their different situation, wants and produce is a sufficient

foundation for the most friendly intercourse”559; if such a confederation was established “[w]e

should then have a friendly intercourse established between the states, upon the principles of

mutual interest.”560

Like other Anti-Federalists, Agrippa consistently speaks in terms of the virtue and

happiness of the people even when he speaks of liberty and economic concerns. Whereas

“freedom is necessary to industry… in absolute governments, the people…are [in] general lazy,

cowardly, turbulent, and vicious to an extreme. On the other hand, in free countries are found in

general, activity, industry, arts, courage, generousity, and all the manly virtues.”561

…free countries are most friendly to commerce and to the rights of property. This

produces greater internal tranquillity. For every man, finding sufficient employment for

his active powers in the way of trade, agriculture and manufactures, feels no disposition

to quarrel with his neighbour, nor with the government which protects him, and of which

he is a constituent part.

The “benefit” or, perhaps, the end of freedom is not necessarily or merely wealth or comfortable

self-preservation even for Agrippa. Here freedom is not treated simply as an end in itself:

freedom leads to virtue as well as industry. He says, for instance, that “every new sale…excites

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that manly pride which is essential to national virtue. All this happiness arises from our

institutions and the limited nature of our government.”562

The Impartial Examiner, however, does not seem to think commerce is only to be

regarded as a public good, since he refers to it plainly as a potential cause of evil. He says that

Americans thus far “have evinced the highest sense of public virtue: herein you have manifested

to the whole world that the cause of liberty has hitherto had the prevailing influence over your

hearts.”563 Despite this connection between public virtue and liberty, however, there is reason to

fear:

It is next to impossible to enslave a people immediately after a firm struggle against

oppression, while the sense of past injury is recent and strong. But after some time this

impression naturally wears off;—the ardent glow of freedom gradually evaporates;—the

charms of popular equality, which arose from the republican plan, insensibly decline; —

the pleasures, the advantages derived from the new kind of government grow stale

through use. Such declension in all these vigorous springs of action necessarily produces

a supineness. The altar of liberty is no longer watched with such attentive assiduity;—a

new train of passions succeeds to the empire of the mind;—different objects of desire

take place:—and, if the nation happens to enjoy a series of prosperity, voluptuousness,

excessive fondness for riches, and luxury gain admission and establish themselves—these

produce venality and corruption of every kind, which open a fatal avenue to bribery.

Hence it follows, that in the midst of this general contageon a few men—or one—more

powerful than all others, industriously endeavor to obtain all authority; and by means of

great wealth —or embezzling the public money,—perhaps totally subvert the

government, and erect a system of aristocratical or monarchic tyranny in its room.564

“Luxury,” according to Webster, meant “excess in eating, dress, or pleasure.”565 This description

is hardly a ringing endorsement of an unbounded commercial republic, nor does it represent a

view of government unconcerned with civic virtue. A possible implication is that the form of

government, while aiming at commercial prosperity, among other things, ought to be structured

so that commercial prosperity does not lead to public vice. This in turn implies that commercial

prosperity is not the ultimate end of governance. In other words, the fact that prosperity is seen

as potentially leading to evil and harmful to good governance reveals that what the Impartial

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Examiner means by elsewhere in his essays by the “good of all” is not likely solely confined to

commercial prosperity or comfortable self-preservation. Even if, as Pangle says, all Publius

means by the common or public good is “the commercial prosperity of America as a whole,” it

would seem that this Anti-Federalist, at least, means something more. Yet as Pangle himself

admits elsewhere in the same volume, the federalists too “sought in commerce a means to

promote more than wealth and comfort, to promote a spirited and admiring involvement in

public life.”566

On the other hand, this passage and others like it are often used as an example of the

Anti-Federalist rejection of liberalism and the aforementioned commercial republic. Few, if any,

of the Anti-Federalist statements along these lines are able to bear this weight. A sign of this is

the little noted fact that, as we shall see, Federalists often warned of the same danger. Second,

such warnings as the one above are ripped out of context by modern interpreters to suit their

purposes.567 The Impartial Examiner is not here making an argument against a “commercial

republic.” In fact, a word search of the entirety of the Documentary History reveals that the only

time that phrase occurs in the entirety of the ratification debate is in Federalist 6, in which

Publius argues against the Anti-Federalists that commercial republics are not necessarily

peaceable, and thus Agrippa’s hope that a bond amongst the states based solely on commerce is

not enough to prevent the states from warring against each other.

In the paragraph immediately preceding his warning, the Impartial Examiner posits that

the more power one gives human beings, the more “the lust of domination becomes the ruling

passion, and absorbs all other desires.” When given power, even “the mild, the gentle,

humane—the virtuous become cruel and violent, losing all sense of honor, probity, humanity and

gratitude.—Hence, should it not be a maxim, never to be forgotten—that a free people ought to

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intrust no set of men with powers, that may be abused without controul, or afford opportunities

to designing men to carry dangerous measures into execution, without being responsible for their

conduct?” He does not argue that the Constitution or the American system of commerce will

cause vice, but says rather that “as no human foresight can penetrate so far into future events, as

to guard always against the effects of vice,—as the securest governments are seldom secure

enough;—is it not the greatest imprudence to adopt a system, which has an apparent tendency to

furnish ambitious men with the means of exerting themselves—perhaps to the destruction of

American liberty?” In context, the Impartial Examiner is not arguing that the Constitution will

cause the vice of luxury, nor even that some form of government could prevent it, but is rather

arguing that the powers the Constitution gives to rulers are liable to be abused if such vice

become prevalent amongst the populace. He suggest that it is not obvious how, exactly, America

will eventually succumb to such vice except in the general sense that human nature is prone to it

during times of prosperity, and he does not suggest that prosperity is itself evil. The way to guard

against such vice, or at least one way to guard against it, is neither to trust the virtue of the

people nor to instill virtue in the people, but to construct a government that gives less power to

its rulers. In fact, his central concern is not the virtue nor the vice of the people, but the power of

their rulers.

He continues his warning with these words:

What ready means for this work of evil are numerous standing armies, and the disposition

of the great revenue of the United States! Money can purchase soldiers;—soldiers can

produce money; and both together can do any thing. It is this depravation of manners, this

wicked propensity, my dear countrymen, against which you ought to provide with the

utmost degree of prudence and circumspection. All nations pass this paroxism of vice at

some period or other;—and if at that dangerous juncture your government is not secured

upon a solid foundation, and well guarded against the machinations of evil men, the

liberties of this country will be lost—perhaps forever!568

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Like so many Anti-Federalists, there is no evidence that he is lamenting a turn to a modern,

commercial republic; rather, he is lamenting a lack of checks and balances in what he deems to

be an overly powerful central government. His concern is not that this government will cause

vice, but that since “[a]ll nations pass this paroxysm of vice at some period or other” during

periods of prosperity, the Constitution ought not to give the federal government the powers it

does, in the manner it does. The same could be said of the oft quoted, similar remarks made by

the Anti-Federalist Cato, which are often ripped out of context in the same manner.569

Centinel complains of luxury in what is, for the Anti-Federalists, a more common use of

the term. He says that after the war, “anxiety on this head was greatly encreased, from the

impoverishment and distress occasioned by the excessive importations of foreign merchandise

and luxuries and consequent drain of specie, since the peace: thus the people were in the

disposition of a drowning man, eager to catch at any thing that promised relief, however

delusory.”570 At another point he says that “the harpies of power have been industriously

inculcating the idea, that all our difficulties proceed from the impotency of Congress” and yet the

excessive importations of foreign merchandize and luxuries which have drained the country of

its specie, and involved it in debt, are all overlooked, and the inadequacy of the powers of the

present confederation is erroneously supposed to be the only cause of our difficulties.”571 It

apparently does not even occur to Centinel that the Constitution will somehow cause luxury, or

encourage it; in fact, he hints that it is plausible that the right sort of federal economic policy

might potentially help alleviate the problem.

Federalists

Virtue of the People

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As we have seen in the last chapter, Wilson regarded the people as the source of sovereignty in

America. “Oft have I viewed, with silent pleasure and admiration, the force and prevalence [of

this principle] through the United States, that the supreme power resides in the people; and that

they never part with it. It may be called the panacea in politics.” His claim is strong and far

reaching, yet it comes with a caveat:

There can be no disorder in the community but may here receive a radical cure. If the

error be in the legislature, it may be corrected by the constitution. If in the constitution, it

may be corrected by the people. There is a remedy, therefore, for every distemper in

government; if the people are not wanting to themselves. For a people wanting to

themselves, there is no remedy. From their power, as we have seen, there is no appeal. To

their error, there is no superior principle of correction.572

At another point in the Pennsylvania convention he repeats himself, saying again that if the

citizens do not give “proper attention” to electing Representatives and if the states do not

“nominate as good men as they have heretofore done, to represent them…the fault will not be in

Congress, but in the people or states themselves. I have mentioned oftener than once, that for a

people wanting to themselves, there is no remedy.”573 For this reason, as we have seen in the last

chapter, Wilson’s speech after the ratification of the Constitution by the state of New York

stressed the significance of election: “…if the people, at their elections, take care to chuse none

but representatives that are wise and good; their representatives will take care, in their turn, to

chuse or appoint none but such as are wise and good also... For, believe me, no government, even

the best, can be happily administered by ignorant or vicious men.”574

On the other hand, Dickinson says that even flawed systems of government can be

administered well if administered by superior men. After proving that the system is popular at

root, the Federalist focus is almost always on the quality of leadership, whether it be that of the

people or their representatives. The implication of Dickinson’s reasoning is that whoever has

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sovereignty—the one, the few, or the many—will need to restrain themselves in any form of

government if it is to be administered well. In non-democratic governments:

…general manners and customs, improvement in knowledge, and the education and

disposition of princes, not unfrequently soften the features, and qualify the

defects…though the sovereigns cannot even in their ministers, be brought to account by

the governed, yet there are instances of their conduct indicating a veneration for the rights

of the people, and an internal conviction of the guilt that attends their violation. Some of

them appear to be fathers of their countries. Revered princes! Friends of mankind! May

peace be in their lives, and hope sit smiling in their beds of death.575

“Manners,” as defined by Webster in 1806, does not refer merely to saying “please” and “thank

you” but to “studied civility, conduct, morals.”576 As opposed to the sort of government in

which the “sovereigns” referred to above operate, Dickinson asserts that a “good constitution”

will separate the powers of government, and yet “[a] good constitution promotes, but not always

produces a good administration.”577 Thus, a good constitution “notwithstanding, it must be

granted, that a bad administration may take place.” Dickinson continues:

What is then to be done? The answer is instantly found—Let the Fasces be lowered

before—not the Majesty, it is not a term fit for mortals—but, before the supreme

sovereignty of the people. IT IS THEIR DUTY TO WATCH, AND THEIR RIGHT TO TAKE CARE,

THAT THE CONSTITUTION BE PRESERVED; or in the Roman phrase on perilous occasions—

TO PROVIDE, THAT THE REPUBLIC RECEIVE NO DAMAGE.578

Majesty—“dignity, grandeur, power, a royal title”—“is not a term fit” even for the people

themselves, who are not above reproach.579 Rather, Dickinson refers instead to the plain fact of

their “supreme sovereignty.” The proper separation of powers thus rests on a deeper balance of

power: “Political bodies are properly said to be balanced, with respect to this primary origination

and ultimate destination, not to any intrinsic or constitutional properties. It is the power from

which they proceed, and which they serve, that truly and of right balances them.”580

Bad administration under the new Constitution, therefore, while it might be mitigated by

institutional construct, can only ultimately be prevented by the people themselves through

election. In contrast to the extreme distrust of the Anti-Federalists towards political authority,

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Dickinson says that “our ancestors… trusted to their own spirit for preventing or correcting”

abuses.

…the only defence, that ever was found against ‘open attacks and secret machinations’…

originates from a knowledge of human nature. With a superior force, wisdom, and

benevolence united, it rives the difficulties that have distressed, or destroyed the rest of

mankind. It reconciles contradictions, immensity of power, with safety of private station.

It is ever new & always the same.581

Here is a clear call for the need for prudence in the application of universal principles to political

life. The implication is that this “knowledge of human nature” and “wisdom” must reside in the

people at large to some extent, as well as being employed by their governors and in creating the

Constitution itself. Dickinson continues:

Trial by jury and the dependance of taxation upon representation, those corner stones of

liberty, were not obtained by a bill of rights, or any other records, and have not been and

cannot be preserved by them. They and all other rights must be preserved, by soundness

of sense and honesty of heart. Compared with these, what are a bill of rights, or any

characters drawn upon paper or parchment, those frail remembrancers [sic]?582

If the people do not have enough “soundness of sense and honesty of heart,” all is lost. In this

general manner, as relates to elections, the Federalists relied on the virtue of the people, and

frequently explicitly or implicitly denied that governmental structures are always able to prevent

the corruption of government if the people became too corrupt. The contrast between the reality

of their rhetoric and the gloss of much of the liberalism camp in modern scholarship could not be

sharper.

In the same vein, Dickinson gives the example of Great Britain’s system of governance,

which despite its defects has experienced “a gradual advancement in freedom, power and

prosperity…no nation that has existed, ever so perfectly united those distant extremes, private

security of life, liberty and property, with exertion of public force; so advantageously combined

the various powers of militia, troops, and fleets; or so happily blended together arms, arts,

commerce, and agriculture.”583 If this is possible in Great Britain, where the mode of election

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and very form of government was, according to Americans, deeply flawed, why under the

Constitution, which is manifestly influenced by American constitutional development, would

America do worse?

Thus they have acted: but, Americans, who have the same blood in their veins, have, it

seems, very different heads and hearts. We shall be enslaved by a president senators and

representatives, chosen by ourselves, and continually rotating within the period of time

assigned for the continuance in office of members, in the house of commons? Tis strange.

But, we are told, ’tis true. It may be so. As we have our all at stake, let us enquire, in

what way this event is to be brought about. Is it to be before or after a general corruption

of manners? If after, it is not worth attention. The loss of happiness then following of

course. If before, how is it to be accomplished? Will a virtuous and sensible people chuse

villains or fools for their officers? Or, if they should chuse men of wisdom and integrity,

will these lose both or either, by taking their seats? If they should, will not their places be

quickly supplied by another choice? Is the like derangment again, and again, and again,

to be expected? Can any man believe, that such astonishing phœnomena are to be looked

for? Was there ever an instance, where rulers thus selected by the people from their own

body, have in the manner apprehended, outraged their own tender connections, and the

interests, feelings, and sentiments of their affectionate and confiding countrymen?584

Here again, we see the Federalist reliance on election, and the conditional connection between a

“virtuous and sensible” people and the virtue and sense of those they elect. If “men of wisdom

and integrity” are not elected, the people can change them out at the next election. If there is “a

general corruption of manners,” the “loss of happiness then” follows “of course.” This is why, as

he says elsewhere, “When general putrefaction [of the body] prevails, death is to be expected.

History sacred and prophane tells us, that, CORRUPTION OF MANNERS IS THE VERY BASIS OF

SLAVERY.”585

It would also follow that ultimately the “general manners and customs, improvement in

knowledge, and the education and disposition of” the people, rather than that of princes, would

be necessary for the good administration of American government. This education would have

to be moral, for “[b]y this animating, presiding will of the people, is meant a reasonable, not a

distracted will. When frensy seizes the mass, it would be madness to think of their happiness,

that is, of their freedom. They will infallibly have a Philip or a Cæsar, to bleed them into

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soberness of mind. At present we are cool; and let us attend to our business.”586 Even as he

asserts this ultimate dependence upon the people, Dickinson emphasizes that they need a

“reasonable will” and a “soberness of mind” that he suggests they will not always possess, even

before a “general corruption of manners.”

As he does with Great Britain, Dickinson also compares early America to “the Achœan

league” of ancient Greece, which he praises: “How degrading would be the thought to a citizen

of United America, that the people of these states, with institutions beyond comparison

preferable to those of the Achœan league, and so vast a superiority in other respects, should not

have wisdom & virtue enough, to manage their affairs, with as much prudence and affection of

one for another, as these antients [sic] did.”587 He seems to think that America in his day does

have enough virtue, wisdom, prudence and affection amongst the citizenry: “The composition of

her temper is excellent, and seems to be acknowledged equal to that of any nation in the

world.”588

Thus the Federalists maintain, on the one hand, that the Constitution relies on the virtue

of the people and, on the other hand, as we have seen in the last chapter, that the rule of wiser

and more experienced men is necessary, proper, and fitting—that the structure of a regime’s

constitution must attempt to encourage a government, as Noah Webster says, “administered by

the better sort of people.”589 The Federalists focus on explicating a constitutional design that

will promote deliberation and good policy even as they maintain that at a foundational level

virtue of the people is necessary for the success of republican government. In their

understanding, the two points are not mutually exclusive, but complementary.

Liberty & Licentiousness

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In their description of the circumstances that birthed the Constitution, Federalist after

Federalist, including figures such as George Washington590, John Jay591, James Madison592,

Alexander Hamilton593, and Benjamin Rush594, used the word “licentious” or some variant of it

in public documents to refer to the people of the states and the states themselves and explain the

need for a stronger central government. As Storing, says, “[o]n the whole the Federalists

inclined to the view that more was to be feared in American government from licentious

democracy than from aristocratic oppression.”595

The Federalists were not primarily concerned, like the Anti-Federalists, with

licentiousness and the violation of the rule of law by a strong central government and an elite

group of power hungry leaders, but from the people and their state governments. For many

Federalists, calling the “licentiousness of the multitude” a “small evil” as the Federal Farmer

does completely glosses over the reason for the Constitution’s existence. For example, in one

version of James Wilson’s published November speech from the Pennsylvania ratifying

convention, he was reported as saying: “…the evil has stolen in from a quarter little suspected,

and the rock of freedom, which stood firm against the attacks of a foreign foe, has been sapped

and undermined by the licentiousness of our own citizens. Private calamity and public anarchy

have prevailed; and even the blessing of independency has been scarcely felt or understood by a

people who have dearly achieved it.”596 In what is likely the more reliable version of this

speech, he is reported as saying: “[t]o the iron hand of tyranny, which was lifted up against her,

she manifested, indeed, an intrepid superiority…[b]ut she was environed with dangers of another

kind, and springing from a very different source. While she kept her eye steadily fixed on the

efforts of oppression, licentiousness was secretly undermining the rock on which she stood.”597

The connection between licentiousness and anarchy (“want of government, confusion, disorder”)

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was often explicitly or implicitly part of such sentiments, yet this “anarchy” was seemingly

related to the democratic governments of the states.598 Wilson says: “The truth is, we dreaded

danger only on one side. This we manfully repelled. But on another side, danger not less

formidable, but more insidious, stole in upon us; and our unsuspicious tempers were not

sufficiently attentive either to its approach or to its operations. Those, whom foreign strength

could not overpower, have well-nigh become the victims of internal anarchy.”599

Wilson is aware of the Anti-Federalist objection to such claims, and he insists that the

“foregoing representation is by no means exaggerated.”

When we had baffled all the menaces of foreign power, we neglected to establish among

ourselves a government, that would insure domestic vigor and stability. What was the

consequence? The commencement of peace was the commencement of every disgrace

and distress, that could befall a people in a peaceful state. Devoid of national power, we

could not prohibit the extravagance of our importations, nor could we derive a revenue

from their excess. Devoid of national importance, we could not procure, for our exports, a

tolerable sale at foreign markets. Devoid of national credit, we saw our public securities

melt in the hands of the holders, like snow before the sun. Devoid of national dignity, we

could not, in some instances, perform our treaties, on our parts; and, in other instances,

we could neither obtain nor compel the performance of them on the part of others.

Devoid of national energy, we could not carry into execution our own resolutions,

decisions, or laws.

Shall I become more particular still? The tedious detail would disgust me.600

These problems relate directly or indirectly to licentiousness (the “extravagance” and “excess” of

importations, the inability to “compel performance of” treaties, and the need to execute laws,

etc.). As he says elsewhere, “I need not appeal to an enumeration of facts” since “[t[he

proceedings of Congress, and of the several states, are replete with them. They all point out the

weakness and insufficiency as the cause, and an efficient general government as the only cure of

our political distempers.”601 While listing every “tedious detail” may have been avoided by

many a Federalist, the problem was often presented as self-evident and the source of the disorder

was by no means hidden in their writings—and the solution was the Constitution.

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John Dickinson, for instance, may as well have been answering the Federal Farmer’s

words above when he said:

How the liberty of this country is to be destroyed, is another question. Here, the [Anti-

Federalists] assign a cause, in no manner proportioned, as it is apprehended, to the effect.

The uniform tenor of history is against them. That holds up the licentiousness of the

people, and turbulent temper of some of the states, as the only causes to be dreaded, not

the conspiracies of federal officers. Therefore, it is highly probable, that, if our liberty is

ever subverted, it will be by one of the two causes first mentioned…602

In fact, Dickinson says repeatedly that “…republican tranquility and prosperity have commonly

been promoted, in proportion to the strength of government for protecting the worthy against the

licentious.”603 While “…the liberty of single republics has generally been destroyed by some of

the citizens, and of confederated republics, by some of the associated states…their tranquility

and prosperity have commonly been promoted, in proportion to the strength of their government

for protecting the worthy against the licentious.”604 The implication is that one of the main

dangers a republic faces is licentiousness amongst the citizenry and the states.

In regard to Dickinson’s understanding of the worthy versus the licentious, recall that

Centinel says that “[i]n a savage state, pre-eminence is the result of bodily strength and

intrepidity, which compels submission from all such as have the misfortune to be less able;

therefore, the great end of civil government is to protect the weak from the oppression of the

powerful, to put every man upon the level of equal liberty; but here again, the same lust of

dominion by different means frustrate almost always this salutary intention. In a polished state of

society, wealth, talents, address, and intrigue, are the qualities that attain superiority in the great

sphere of government.”605 Dickinson, by way of contrast, sees the “great end of civil

government” as mediating a struggle between the worthy and the licentious rather than the weak

and the powerful. For Dickinson, the distinction between the two groups is a moral one; for

Centinel, the distinction is one of power. Therefore, like the Federal Farmer and Brutus—since

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talent, experience, and education no less than wealth gives men power—Centinel lists “talents”

as one of the qualities that allows some men to attain superiority. Unlike Dickinson and the

Federalists, Centinel and his fellow Anti-Federalists believe that the natural aristocracy, even if

arising from merit, must be restrained in favor of the equality of likeness.

For Ellsworth too, human governance ought not merely restrain the power of the rulers.

In order to restrain the people, government must possess “…the powers which enable tyrants to

scourge their subjects; and they are also the very powers by which good rulers protect the people,

against the violence of wicked and overgrown citizens, and invasion by the rest of mankind.”606

Ellsworth, like the other Federalists, points to a very different problem than the Anti-Federalists

do:

Oppression and a loss of liberty arises from very different causes, and which at first blush

appear totally different from another. If you had only to guard against vesting an undue

power in certain great officers of state your work would be comparatively easy. This

some times occasions a loss of liberty, but the history of nations teacheth us that for one

instance from this cause, there are ten from the contrary; a want of necessary power in

some public department to protect and to preserve the true interests of the people.

America is at this moment in tenfold greater danger of slavery than ever she was from the

councils of a British monarchy, or the triumph of British arms. She is in danger from

herself and her own citizens, not from giving too much, but from denying all power to her

rulers-not from a constitution on despotic principles, but from having no constitution at

all...607

What is lacking is a rule of authority or law, and this lack can lead to “slavery.” Ellsworth also

makes the familiar Federalist distinction in the passage above between “true interests of the

people” and, presumably, the apparent or false interests they might pursue without a sound

government.

He says that if the Constitution is rejected, “…every man will do what is right in his own

eyes and his hand will be against his neighbour-industry will cease—the states will be filled with

jealousy-some opposing and others endeavouring to retaliate—a thousand existing factions, and

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acts of public injustice, thro’ the temporary influence of parties, will prepare the way for chance

to erect a government, which might now be established by deliberate wisdom.” In fact, [m]any

defects in the constitution had better be risked than to fall back into that state of rude violence, in which

every man’s hand is against his neighbour, and there is no judge to decide between them or power of

justice to control.”608 “How have the morals of the people been depraved for the want of an

efficient government which might establish justice and righteousness. For the want of this,

iniquity has come in upon us like an overflowing flood.”609

James Wilson condemned certain Anti-Federalists when he said “[i]t is the nature of man

to pursue his own interest, in preference to the public good; and I do not mean to make any

personal reflection, when I add, that it is the interest of a very numerous, powerful, and

respectable body to counteract and destroy the excellent work produced by the late

convention….Every person…who…enjoys…a place of profit under the present establishment,

will object…not, in truth, because it is injurious to the liberties of his country, but because it

affects his schemes of wealth and consequence.”610 Dickinson also says that some of the

opponents of the Constitution are themselves “men without principles or fortunes, who think

they may have a chance to mend their circumstances, with impunity, under a weak government,

or in public convulsions.”611 Like Dickinson, Oliver Ellsworth condemns some of the opponents

of the Constitution for being licentious themselves when he warns of the dangers that arise from

misunderstanding the true meaning of liberty.612 He too sees this as the circumstance which gave

rise to the Constitution, and he connects the necessity of union to the rule of law and the proper

conception of liberty:

Liberty is a word which, according as it is used, comprehends the most good and the most

evil of any in the world. Justly understood it is sacred next to those which we appropriate

in divine adoration; but in the mouths of some it means any thing, which will enervate a

necessary government, excite a jealousy of the rulers who are our own choice, and keep

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society in confusion for want of a power sufficiently concentered to promote its good. It

is not strange that the licentious should tell us a government of energy is inconsistent

with liberty, for being inconsistent with their wishes and their vices, they would have us

think it contrary to human happiness.613

The assertion that the word “liberty” can signify “the most evil” of any word “in the world” is

significant in the wake of a revolution that was recently fought for the sake of the same word.

The licentious and “their wishes and their vices” are problematic since for the sake of these they

seek to weaken the strength of law and order, promoting “jealousy” against “rulers” while they

“enervate” good government.

In truth, human happiness can only be found not only through virtue as opposed to vice

but through good government and respect for authority, and these require a “power sufficiently

concentered to promote” the good of all. “To fear a general government on energetic principles

least it should create tyrants, when without such a government all have an opportunity to become

tyrants and avoid punishment; is fearing the possibility of one act of oppression, more than the

real exercise of a thousand.”614 Ellsworth considers this lesson learned by the experience of the

country after the war:

In the state this country was left by the war, with want of experience in sovereignty, and

the feelings which the people then had; nothing but the scene we had passed thro’ could

give a general conviction that an internal government of strength is the only means of

repressing external violence, and preserving the national rights of the people against the

injustice of their own brethren, Even the common duties of humanity will gradually go

out of use, when the constitution and laws of a country, do not insure justice from the

public and between individuals. American experience, in our present deranged state, hath

again proved these great truths, which have been verified in every age since men were

made and became sufficiently numerous to form into public bodies. A government

capable of controling the whole, and bringing its force to a point is one of the

prerequisites for national liberty.615

Note how he ties individual rights to the nation as a whole: “national rights of the people” must

be defended against the “injustice of their own brethren.” The lesson of the recent experience of

America was that a “constitution and laws” must “insure justice from the public and

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individuals,” and only a centralized government over all, “capable…of bringing its force to a

point” could ensure this justice and promote the good of society, including the “sacred” sort of

liberty which all good men desired. If liberty was the purpose of American government, it was

of a certain kind, and the Constitution itself was born of the Federalist understanding of it.

This understanding of liberty is also found throughout Noah Webster’s writings. After

refuting various Anti-Federalist objections, at one point Webster stops to describe a general

problem in America that he seems to understand as the real cause of some of these objections.

“But I cannot quit this subject without attempting to correct some of the erroneous opinions

respecting freedom and tyranny, and the principles by which they are supported. Many people

seem to entertain an idea, that liberty consists in a power to act without any control. This is more

liberty than even the savages enjoy.” This description of licentiousness goes to the heart of the

opposition between liberty and law. Even the “savages,” presumably without clear laws or a

strong government, do not have such liberty within their societies. True liberty, on the other

hand, in a society under good governance, means acting with control. “But in civil society,

political liberty consists in acting conformably to a sense of a majority of the society. In a free

government every man binds himself to obey the public voice, or the opinions of a majority; and

the whole society engages to protect each individual.” The “public voice” is expressed through

law, and though it ultimately arises through majority rule, its thoughts and words are chosen

through the government of the Constitution; once passed it becomes the rule of the “whole

society.” The Constitution is in one respect an effort to establish a clear public voice over the

entirety of America. Webster continues: “In such a government a man is free and safe. But

reverse the case; suppose every man to act without control or fear of punishment—every man

would be free, but no man would be sure of his freedom one moment.” The law presents the

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“fear of punishment” that induces men to act with control, and without it “[e]ach would have the

power of taking his neighbor’s life, liberty, or property; and no man would command more than

his own strength to repel the invasion.”616 The people require government in order to control

their own licentiousness.

Dickinson says that “[a]s government is intended for the happiness of the people, the

protection of the worthy against those of contrary characters, is calculated to promote the end of

legitimate government, that is, the general welfare; for the government will partake of the

qualities of those whose authority is prevalent.”617 In order for the “prevalent authority” to

remain worthy rather than licentious, government must protect the worthy wherever they are

found. For Dickinson, the mediating influence of law, or the Constitution itself, must be

employed to curtail the passions of both rulers and ruled. Speaking of protecting the worthy

from the licentious, Dickinson says:

The best foundations of this protection, that can be laid by men, are a constitution and

government secured, as well as can be, from the undue influence of passions either in the

people or their servants. Then in a contest between citizens and citizens, or states and

states, the standard of laws may be displayed, explained and strengthened by the well-

remembered sentiments and examples of our fore-fathers, which will give it a sanctity far

superior to that of their eagles so venerated by the former masters of the world. This

circumstance will carry powerful aids to the true friends of their country, and unless

counteracted by the follies of Pharsalia, or the accidents of Philippi, may secure the

blessings of freedom to succeeding ages.

It has been contended, that the plan proposed to us, adequately secures us against the

influence of passions in the federal servants. Whether it as adequately secures us against

the influence of passions in the people, or in particular states, time will determine, and

may the determination be propitious.618

If the law itself is “secured” safe “from the undue influence of passions,” it will “carry powerful

aids” for the worthy for as long as it is respected. Dickinson admits that “[a]midst the

mutabilities of terrestial things, the liberty of United America may be destroyed,” and he says

that “[a]s to that point, it is our duty, humbly, constantly, fervently, to implore the protection of

our most gracious maker, ‘who doth not afflict willingly nor grieve the children of men,’ and

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incessantly to strive, as we are commanded, to recommend ourselves to that protection, by

‘doing his will,’ diligently exercising our reason in fulfilling the purposes for which that and our

existence were given to us.”619 These “purposes” do not seem to consist merely in exercising

liberty for the sake of comfortable self-preservation.

The Federalists first response to the Anti-Federalists was that the Constitution would

restrain the passions of government officials through the separation of powers and the foundation

of popular government. Although Dickinson does not go into detail describing the licentiousness

of Americans, as we have seen above he repeatedly refers to the proper role of reason as guiding

the passions or will. While the licentious man lets his passions go unrestrained and willfully

flaunts authority, “[d]uly governed, [the passions] produce happiness.” 620 The good man’s

passions and interests serve reason and the public good, especially through obedience to the law.

Dickinson defines the worthy by quoting Horace answering the question “Who is a good man?”

The answer is “the one who preserves [or keeps] the counsel, the laws, and the rights of the

fathers.”621

Thus, for Dickinson, the passions of the people need the same sort of restraint as their

rulers; popular government also requires the rule of reason amongst the people. He cites history

to prove that institutions can at least occasionally counteract, slow, or even refashion the

passions of the people and thus prevent despotism. The “business” of passing the Constitution

while the people are “cool” will provide for institutions, like the senate, that can help save the

people from themselves, helping to prevent the most dangerous problem that popular

government faces:

In Carthage, and Rome, there was a very numerous senate, strengthened by prodigious

attachments, and in a great degree independent of the people. So there was in Athens,

especially as the senate of that state was supported by the court of Areopagus. In each of

these republics, their affairs at length became convulsed, and their liberty was subverted.

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What cause produced these effects? Encroachments of the senate upon the authority of

the people? No! but directly the reverse, according to the unanimous voice of historians;

that is, encroachments of the people upon the authority of the senate. The people of these

republics absolutely laboured for their own destruction; and never thought themselves so

free, as when they were promoting their subjugation. Though, even after these

encroachments had been made, and ruin was spreading around, yet, the remnants of

senatorial authority delayed the final catastrophe.622

Despite the aforementioned ultimate reliance on the people, the proposed Constitution’s Senate,

however, will not be elected directly by them—in some manner it too will be “in a great degree

independent of the people.” The Senate “is to be created by the sovereignties of the several

states; that is, by the persons, whom the people of each state shall judge to be most worthy, and

who, surely, will be religiously attentive to making a selection, in which the interest and honour

of their state will be so extensively concerned.”623 Even the structure of the House would assist

the people in choosing the right representatives, since, Dickinson argues, voters will “reside,

widely dispersed, over an extensive country. Cabal and corruption will be as impracticable, as,

on such occasions, human institutions can render them.” With cabal and corruption minimized,

“[t]he will of freemen, thus circumstanced, will give the fiat. The purity of election thus obtained,

will amply compensate for the supposed defect of representation [too few Representatives for too

many people]; and the members, thus chosen, will be most apt to harmonize in their proceedings,

with the general interests, feelings, and sentiments of the people.”624

Similarly, when it comes to the Presidency, “[a]s in the Roman armies, when the

Principes and Hastati had failed, there were still the Triarii, who generally put things to rights,

so we shall be supplied with another resource. We are to have a president, to superintend, and if

he thinks the public weal requires it, to controul any act of the representatives and senate.”625 Of

course, like the Senate, the President is selected with some independence from the people: “This

president is to be chosen, not by the people at large, because it may not be possible, that all the

freemen of the empire should always have the necessary information, for directing their choice

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of such an officer…the fairest, freest opening is given, for each state to chuse such electors for

this purpose, as shall be most signally qualified to fulfil the trust…”626 Due to the structural

arrangement of law, the electors will be influenced to make the right choice: “When these

electors meet in their respective states, utterly vain will be the unreasonable suggestions derived

from partiality. The electors may throw away their votes, mark, with public disappointment,

some person improperly favoured by them, or justly revering the duties of their office, dedicate

their votes to the best interests of their country.”627

As Noah Webster says in his pamphlet, “Many plausible things may be said in favor of

pure democracy—many in favor of uniting the representatives of the people in one single

house—but uniform experience proves both to be inconsistent with the peace of society, and the

rights of freemen.”628 The reason “pure democracy” is “inconsistent with the peace of society,

and the rights of freemen” is because of the universal errors of human nature itself:

But men are ever running into extremes. The passions, after a violent constraint, are apt

to run into licentiousness; and even the reason of men, who have experienced evils from

the defects of a government, will sometimes coolly condemn the whole system. 629

The example is telling. Webster is not talking directly about immorality as opposed to virtue, but

describing how when the passions “run into licentiousness” they can negatively affect political

decision making, or deliberation and the policy it produces. Instead of identifying and correcting

particular evils and defects, unrestrained passions may cause people to make the wrong decision

and “overcorrect,” condemning more than ought to be condemned and throwing the proverbial

baby out with the bathwater. This sort of licentiousness overrides good law, and even a good

“system” of law. He continues:

Every person, moderately acquainted with human nature, knows that public bodies, as

well as individuals, are liable to the influence of sudden and violent passions, under the

operation of which, the voice of reason is silenced. Instances of such influence are not so

frequent, as in individuals; but its effects are extensive in proportion to the numbers that

compose the public body. This fact suggests the expediency of dividing the powers of

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legislation between the two bodies of men, whose debates shall be separate and not

dependent on each other: that, if at any time, one part should appear to be under any

undue influence, either from passion, obstinacy, jealousy of particular men, attachment to

a popular speaker, or other extraordinary causes, there might be a power in the legislature

sufficient to check every pernicious measure.630

Note first that Webster asserts that individuals are more likely to be led astray by “sudden and

violent passions” than legislative bodies, an assertion that is rare in Anti-Federalist thought.

Thus he implies that representation in general is desirable not on account of its mirroring of the

public views, but because a legislative body is somewhat less likely to be convulsed by the

passions (although as opposed to the Federal Farmer and other Anti-Federalists, and similar to

many Federalists, Webster thinks that the larger a legislative body, the more “liable to the

influence” of the passions it becomes). More to the point, for Webster the function of a

legislative body is not only to reflect the sentiments, feelings, and interests of the people but to

reason rightly and suppress “licentiousness.” The small republic itself is by no means exempt

from this need: “Even in a small republic, composed of men, equal in property and abilities…a

division of the body into two independent branches, would be a necessary step to prevent the

disorders, which arise from the pride, irritability and stubborness of mankind. This will ever be

the case, while men possess passions, easily inflamed, which may bias their reason and lead them

to erroneous conclusions.”631

As opposed to the Anti-Federalists, Noah Webster has no qualms describing the vice of

the people at large. In a footnote in his pamphlet, he says, for instance, that while “[i]t is said by

some, that no property should be required as a qualification for an elector…in most free

governments, some property has been thought requisite, to prevent corruption and secure

government from the influence of an unprincipled multitude.”632 Laws regulating who is

allowed to vote are thus one example of how one might ensure the “unprincipled multitude”

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doesn’t “influence” the government. When he speaks about how, over time, the allocation of

representatives in Great Britain has led to inequality that demands reform he says “…the danger

is, that as an evil of this kind increases, so will the lethargy of the people, and their habits of vice

and negligence. Thus the disease acquires force, for want of an early remedy, and a dissolution

ensues. But a Legislature, which is always watching the public safety, will more early discover

the approaches of disorders, and more speedily apply a remedy.”633 The legislature ought to be

“watching the public safety” with the danger of the people’s own “habits of vice and negligence”

in mind; a proper constitutional design can help ensure it does so. Note that his focus here is the

reverse of the Impartial Examiner and other Federalists: instead of worrying about the people

becoming lax and allowing vice to corrupt their rulers, he speaks of the rulers watching the vice

of the people.

In Wilson’s sermon on civic virtue after the passage of the Constitution, along with

“endeavouring to impress upon” his audience’s “minds, in the strongest manner, the importance

of this great duty” of election, he warns in an equally strong manner of the danger of

licentiousness:634

Your patriot feelings attest to the truth of what I say, when, among the virtues necessary

to merit and preserve the advantages of a good government, I number a warm and

uniform ATTACHMENT to LIBERTY, and to the CONSTITUTION. The enemies of

liberty are artful and insiduous. A counterfeit steals her dress, imitates her manner, forges

her signature, assumes her name. But the real name of the deceiver is Licentiousness.

Such is her effrontery, that she will charge liberty to her face with imposture; and she

will, with shameless front, insist that herself alone is the genuine character, and that

herself alone is entitled to the respect, which the genuine character deserves. With the

giddy and undiscerning, on whom a deeper impression is made by dauntless impudence

than by modest merit, her pretensions are often successful. She receives the honors of

liberty, and liberty herself is treated as a traitor and an usurper. Generally, however, this

bold impostor acts only a secondary part. Though she alone appear, upon the stage, her

motions are regulated by dark ambition, who sits concealed behind the curtain, and who

knows that despotism, his OTHER favourite, can always follow the success of

licentiousness. Against these enemies of liberty, who act in concert, though they appear

on opposite sides, the patriot citizen will keep a watchful guard.635

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As we have seen, Wilson presents licentiousness as a problem which the Constitution itself was

designed to correct. Although this passage is ostensibly an exhortation to virtue, the Federalist

answer to the moral problem of licentiousness lies within it. A “uniform attachment to liberty” is

not enough; one must also possess a uniform attachment to the Constitution. The people must

always be on guard against licentiousness masquerading as liberty lest the Constitution fail, and

despotism take its place. Among the people are the “giddy and undiscerning,” who are “often”

misled into licentiousness instead of true liberty. The answer, however, to the problem is

political and legal. Licentiousness, again, is not simply opposed to virtue; it is also opposed to

true liberty, law, and the Constitution itself. Licentiousness masquerades as liberty at the behest

of despots, who are opposed not only to virtue but, perhaps even more directly, to the laws. The

Constitution itself will mediate between these forces of good and evil, if it be respected. If the

people fall into licentiousness in a popular government, they will not simply become enslaved to

their own individual passions; political slavery and the loss of freedom are the inevitable societal

result. Licentiousness, in other words, at some level is very much a communal problem, and not

merely a matter of individual morals.

Commerce & the Federalists

The fact that the Constitution was designed with economics very much in mind often

seems to play into interpretations that emphasize how “low” its purpose was. Yet example after

example reveals the way in which economic matters, whether considered low or high, were

understood to be intrinsically connected to virtue, justice, and the public good. While it is

certainly true that economic concerns were a major part of Federalist arguments, this sort of

commercial republic they had in mind did not evidently involve abstracting from morality, or

treat the pursuit of individual gain as an end in itself.636

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Both sides decry luxury, and in such a serious manner, that it seems implausible that such

sentiments can be easily written off; it is unfortunate that more is not written in modern

scholarship about such a major theme of the era. Like the Impartial Examiner, Dickinson

preaches against luxury as well as empire:

Her [America’s] prudence will guard its warmth against two faults, to which it may be

exposed—The one an imitation of foreign fashions, which from small things may lead to

great. May her citizens aspire at a national dignity in every part of conduct, private as

well as public. This will be influenced by the former. May simplicity be the characteristic

feature of their manners, which inlaid in their other virtues and their forms of

government, may then indeed be compared, in the eastern stile, to “apples of gold in

pictures of silver.” Thus will they long, and may they, while their rivers run, escape the

curse of luxury—the issue of innocence debauched by folly, and the lineal predecessor of

tyranny generated in rape and incest. The other fault, of which, as yet, there are no

symptoms among us, is the thirst of empire. This is a vice, that ever has been, and from

the nature of things, ever must be, fatal to republican forms of government. Our wants,

are sources of happiness: our desires, of misery. The abuse of prosperity, is rebellion

against Heaven: and succeeds accordingly.637

Dickinson urges the people to restrain themselves when it comes to economic matters; he

condemns the “[t]he abuse of prosperity” no less than the abuse of liberty, as he understands both

as dangers that threaten the very existence of republican government. While supplying material

needs or “wants” serves as a source of “happiness,” it seems that “desires” for what is excessive

or unjust are a source “of misery.”

The Federalists and Anti-Federalists alike speak frequently about encouraging habits of

industry and frugality or economy, which stand opposite to what Webster calls below the “habits

of indolence and extravagance.” While indolence, extravagance, and luxury could destroy

society, industry and frugality were said to help constitute its well being. James Wilson, for

instance, in his speech celebrating ratification, praises “FRUGALITY and TEMPERANCE

…[t]hese simple but powerful virtues are the sole foundation, on which a good government can

rest with security.” Although “the virtues which nursed and educated infant ROME, and

prepared her for all her greatness…in the giddy hour of her prosperity, she …substituted luxury

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and dissipation.” As a result, “the internal health and soundness of her constitution were gone”;

“The fate of Rome, both in her rising and in her falling state, will be the fate of every other

nation that shall follow both parts of her example.” He continues on to praise industry: “Idleness

is the nurse of villains. The industrious alone constitute a nation’s strength.” He goes further than

Agrippa in connecting commerce to friendship and the public good when he says that “[i]n a well

constituted commonwealth, the industry of every citizen extends beyond himself” and “[a]

common interest pervades the society” as “[e]ach gains from all, and all gain from each.”638 639

Oliver Ellsworth thinks that the people must possess a certain measure of virtue in order

for republican government to be possible, and part of this virtue relates to commerce. He

acknowledges that under his understanding, “[i]t is good government which secures the fruits of

industry and virtue; but the best system of government cannot produce general happiness unless

the people are virtuous, industrious and œconomical.”640

The love of wealth is a passion common to men, and when justly regulated it is condusive

to human happiness. Industry may be encouraged by good laws–wealth may be protected

by civil regulations; but we are not to depend on these to create it for us, while we are

indolent and luxurious. Industry is most favourable to the moral virtue of the world, it is

therefore wisely ordered by the Author of Nature, that the blessings of this world should

be acquired by our own application in some business useful to society; so that we have no

reason to expect any climate or soil will be found, or any age take place, in which plenty

and wealth will be spontaneously produced. The industry and labour of a people furnish a

general rule to measure their wealth, and if we use the means we may promise ourselves

the reward.641

Like many a Federalist, when he speaks of the virtue of the people he refers to a conditional state

rather than an assumption. Yet his statement on the matter also makes clear that governments do

exist in part to prevent and punish licentiousness as relates to commerce and to encourage virtues

and regulate the passions of the people and the states as relates to the same. The “love of

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wealth” must be “justly regulated” by the government, and its attendant vice, luxury, is not a

good but an evil to be avoided.

Ellsworth situates the acquisition of property in a distinctly moral context in part because

a lack of good government will lead to vice in the form of unjust gain: “It is awful to meet the

passions of a people who not only believe but feel themselves uncontrouled-who not finding

from government, the expected protection of their interests, tho’ otherwise honest, become

desperate, each man determining to share by the spoils of anarchy, what he would wish to

acquire by industry under an efficient national protection.”642 Ellsworth’s publication for Rhode

Island residents berated them mercilessly for their failed financial policies:

The distress to which many of your best citizens are reduced–the groans of ruined

creditors, of widows and orphans demonstrates that unhappiness follows vice, by the

unalterable laws of nature and society. I did not mention the stings of conscience, but the

authors of public distress ought to remember that there is a world where conscience will

not sleep.643

The point of his scintillating address is ostensibly to convince Rhode Island to join the union in

order to help rectify these problems. He says of the laws then on the books that “[e]very moral

and social law calls for a review, and a volume of penal statutes cannot prevent it. They are in

the first instance nullified by injustice, and five years hence not a man in your territories will

presume their vindication.” While “[p]assion and obstinacy, which were called in to aid

injustice, have had their reign, and can support you no longer,” “a change of policy” will provide

“evidence” that “you are returned to manhood and honour.” The demagogues who instituted

such policies “can never be forgiven in this world, but the people at large who acted by their

guidance may break from the connection and restore themselves to virtue” and “[t]here are

among you characters eminent through the union for their wisdom and integrity” who are

“waiting the return of your reason.” Near the end of his sermon on Rhode Island’s economic

policy, Ellsworth pronounces that “[t]he Creator of nature and its laws, made justice as necessary

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for nations as for individuals and this necessity hath been sealed by the fate of all obstinate

offenders.644

Noah Webster is no exception to the rule. Even his description of the problem of

requisitions is loaded with moral significance:

For want of such power, one state now complies fully with a requisition, another

partially, and a third absolutely refuses or neglects to grant a shilling. Thus the honest and

punctual are doubly loaded—and the knave triumphs in his negligence. In short, no

honest man will dread a power that shall enforce an equitable system of taxation. The

dishonest are ever apprehensive of a power that shall oblige them to do what honest men

are ready to do voluntarily.645

In a telling essay written in April of 1789—one of the best examples we have from the time

period of a participant of the ratification debate writing in depth about a specific domestic policy

issue prominent in that same debate—Webster says that an “immediate and powerful cause of

the corruption of social principles, is a fluctuation of money. Few people seem to attend to the

connexion between money and morals; but it may doubtless be proved to the satisfaction of

every reflecting mind, that a sudden increase of specie in a country, and frequent and obvious

changes of value, are more fruitful sources of corruption of morals than any events that take

place in a community.”646 Webster says that because of “the sudden flood of money during the

late war, and a constant fluctuation,” “speculators are not the only men whose character and

principles are exposed by such a state of the currency; the honest laborer and the regular

merchant are often tempted to forsake the established principles of advance. Every temptation of

this kind attacks the moral principles, and exposes men to small” deviations “from the rectitude

of commutative justice,” ruining “confidence between man and man,” encouraging “a general

corruption of manner.”647 The “consequences of a variable medium” include a “neglect to

industry…relaxation of principles in social intercourse; distrust of individuals; loss of confidence

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in the public, and of respect for laws; innumerable acts of injustice between man and man, and

between the State and the subject; popular uneasiness, murmurs, and insurrections.”648

Webster says that “[e]xtensive credit, in a popular government, is always pernicious, and

may be fatal. When the people are deeply or generally involved, they have power and strong

temptations to introduce an abolition of debts; an agrarian law, or…a paper currency…”649

Webster gives some concrete examples of laws that might help curb such temptations:

Laws to prevent credit would be beneficial to poor people. With respect to the

contraction of debts, people at large, in some measure, resemble children; they are not

judges even of their own interest…When people can possess themselves of property

without previous labor, they consume it with improvident liberality. A prudent man will

not; but a large proportion of mankind have not prudence and fortitude enough to resist

the demands of pride and appetite. Thus they often riot on other men’s property, which

they would not labor to procure. They form habits of indolence and extravagance, which

ruin their families, and impoverish their creditors.”650

As he says a little later “with popular government, and an unbounded rage for magnificent living,

perhaps the effectual remedy for a multitude of public evils, is the restraining of credit…This

would not check business, but it would oblige people to exercise a principle of honor, and to

have recourse to industry, and ready payment for articles which their necessities or their fancies

require.”651 Here is a clear example of how law can control the licentiousness of the people at

large in the realm of economics. Publius and many others speak similarly.652

When Webster begins to delve into such matters he announces that: “I propose now to

make some remarks on the morals of the people, and the influence of money on men’s sense of

justice and moral obligation. It is perhaps a fundamental principle of government, that men are

influenced more by habit, than by any abstract ideas of right and wrong.”653 The law, however,

influences habit. He says that “[i]n governments like ours, it is policy to make it the interest of

the people to be honest. In short, the whole art of governing consists in binding each individual

by his particular interest, to promote the aggregate interest of the community.”654 Another of his

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proposals might shed light on what he means by this. “In some cases it might be safe and wise to

withdraw the protection of law from debts of certain descriptions...,” because “[p]erhaps laws of

this kind have the best effect in introducing punctual payments. Their first effect is to prevent

credit; but they gradually chance a man’s regard for his property, to a more active and efficient

principle, an attention to his character.”655 Here is a clear example of the law preventing vice

and promoting virtue by means of this prevention, presumably inasmuch as the law promotes

good habits.

Referring to the post-revolutionary debt crisis, Tench Coxe also connects virtue with

economic law and policy in a similar fashion:

Elevation to independence, with the loss of our good name, is only to be conspicuous in

disgrace. The liberties of a people involved in debt, are as uncertain as the liberty of an

individual in the same situation. Their virtue is more precarious. The unfortunate citizen

must yield to the operation of the laws, while a bankrupt nation too easy annihilates the

sacred obligations of gratitude and honor, and becomes execrable and infamous.656

The virtue of the people, even more than their liberty, is in danger when people are in debt, and

this injustice leads to a break down in the “sacred obligations” between human beings that ought

to be governed by “gratitude and honor,” and the reason is defective government. The

Constitution is meant to solve the problem, for it will enable wise financial policy and prevent

Ellsworth’s aforementioned “acts of public injustice” in the states.

Coxe gives a typical list detailing the sort of examples of licentiousness that James

Wilson and the rest of the Federalists allude to above when says that is not just “by the fear of

Anarchy that the friends of Liberty [in?] America ought to be influenced at this Crisis,” but by

the reality of economic injustice:

Have not the rights of property been violated & religion & morality trampled under foot by instalment & suspension Laws, by a paper legal tender (in case of suit) in six states, by

laws to discharge specific & pecuniary contracts in every species of property however

worthless in itself or useless and inconvenient to the creditor…Do not the creditors on

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loans made in America include Characters & Classes of people to whom we are bound to

pay by every principle of policy, & virtue public & private… Were not the European

loans furnished in hours of the most extreme necessity, and under every circumstance that

can entitle the lenders to Justice & Gratitude…And lastly, have not the leaders of

powerful insurrections, pressuming on our distractions & the weakness of our

governments, first opposed the Execution of [laws?] & finally attempted to seize the

powers of the State. Trust me, Sir we have more than the fear of Anarchy before us and

tho I readily admit that the most serious Convulsions of our Empire Should not induce us

to sacrifice the essential requisites of Liberty & Happiness, yet they should prevent us

from contending, too much for unimportant matters & should inspire us with the greatest

Moderation & Candor a lamentable want of which has been too evident in the public

Observations on the proposed Constitution.”657

Tench Coxe says that European observers “saw we possessed a country replete with the means of

private happiness and national importance, but they saw too that these inestimable properties of

the Americans and their dominions were not brought into any use, from the defects of our political

arrangements, and the enormous abuses in our administration.” Coxe continues on to describe these

problems, primarily related to property and commercial policy in vivid moral terms:

Their beloved mistress having fallen from the heights of virtue, and become a wanton,

they turned from her with disgust and bitterness. Ye friends of religion and morality! ye

lovers of liberty and mankind! will ye not seize this opportunity proffered you by the

bounty of Heaven, and save your country from contempt and wretchedness?658

The problem is that “[s]carcely held together by a weak and half formed fœderal constitution, the

powers of our national government, are unequal to the complete execution of any salutary

purpose, foreign or domestic. The evils resulting from this unhappy state of things have again

shocked our reviving credit, produced among our people alarming instances of disobedience to

the laws, and if not remedied, must destroy our property, liberties and peace.”659

Conclusion This chapter could be expanded to include a universe of texts from the founding era more

generally. Over and over again, with astonishing candor, the Federalists give a moral reason for

the establishment of the Constitution as an authority over licentious and unruly individuals and

the state governments; moreover, this moral impetus for the Constitution is ordered to curtailing

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liberty used wrongly, especially as relates to commerce. Storing says that “wealth and national

security are good in themselves—they are the primary goods of the Union—but they are also

means to moral improvement.” Regardless of whether or not they are the “primary goods of the

Union,” it seems true that “[t]he aim of securing national prosperity…was much more

enthusiastically embraced by the Federalists partly because of what they took to be its beneficial

moral consequences. The love of wealth, properly regulated, fosters industry.”660 In this

example and others, the right use of liberty requires a recognition of a central authority that

directs society. The public good requires the worthy, that is, those who act in accordance with

some form of virtue, to rule over the licentious by means of law. The end of government is

manifestly not freedom per se, but a certain kind of freedom—a certain use of freedom, and this

necessitates something beyond freedom as the end of government.

It is difficult to find a place for autonomous individuals seeking comfortable self-

preservation and freedom considered as the absent of restraint within the ratification debate and

simultaneously justly interpret a single text from that debate. It is also difficult to see how such

an idea can coexist with the end of society considered as a network of interdependent private

goods. At least, how could one possibly maintain that the founding generation held that the

public good consisted in interdependent rights bearing individuals exercising liberty without

confronting these texts? If the public good requiring individual liberty necessitates certain norms

in its right use, directed towards a unitary good, the public good does not entail liberty simply

speaking, but the right use of liberty.

The Federalists feared democratic excess: the misuse of liberty by the licentious and

tyrannical majorities who had no regard for the public good or individual rights. The Federalists

regarded the Constitution and the order it established as a solution to a problem whose existence

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the Anti-Federalists denied or ignored. They consistently argued that the underlying problem

facing Americans was not an eventual transformation of the states into an aristocracy or a

monarchy via a strong centralized authority, but rather the rule of the people themselves within

overly democratic—and therefore increasingly unstable—loosely connected states. The threat

they saw looming before them was not a potentially tyrannical central authority; rather, it was a

lack of unity and the rule of law that threatened vice, anarchy, and eventually some form of

despotism. The danger of an unrestrained populace was far more pressing and likely to lead to

disaster within a democratic system than authoritarian control. Thus they generally argued that

the United States were in crisis because of both the inability of the confederation to constrain the

state governments and the inability of the state governments to restrain themselves and the

people of the states from pursuing actions and policies that were not in keeping with the public

good. Far more Federalists than considered here made similar claims.661 For the Federalists, the

solution to the problem is a strong federal government over the people and the states. The rule of

law could not be enforced, however, without a unitary government over all the states together.

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Chapter 8 Federalism

Introduction Any underlying political philosophy that birthed the Constitution would be far clearer to

observers centuries later if the Constitution had formed a regime or polis anew in circumstances

closer to a political vacuum, erecting a new system virtually ex nihilo, as Solon and Lycurgus

were said to have done, or by means of a revolution overturning an entire political system and

culture, like the French Revolution. While it is obvious that the American Revolution wrought

enormous changes, it did not completely overturn nor did it fully repudiate American

educational, religious, cultural or governmental practices, traditions, institutions and ideas.

Generally speaking, during and immediately after the revolution a complex system of law and

governance, including an overarching federal government, was in nearly continuous operational

existence throughout the thirteen colonies. Thus the Constitution did not emerge fully formed

from some sort of primordial political soup, but rather evolved out of an incredibly complex

system of colonial, state and local governments that had already arisen over the course of nearly

two centuries prior to 1787.

Nor was the Constitution merely an epiphenomenon of the American Revolution; rather,

the Constitution was a developed response evolving from the better part of a decade of

deliberation over creating, reforming and maintaining new governments, from the Continental

Congress and the Confederation to newly ratified and revised state Constitutions. During this

period, the debate over the proper structure of the Confederation, born of the longstanding

experience of all concerned with Continental Congress, never really ceased. It took four

contentious years until the Articles of Confederation were finally ratified by all the states, and

continuing disputes over its efficacy led to the Constitutional Convention. The Convention itself

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was thus an extended, culminating argument arising out of hard earned experience and

longstanding disagreements over this very issue, its final product a hard won compromise in

which no one side received everything what it wanted. The ratification debates can be

understood as a continuation of this same debate. The Constitution was thus created out of

compromises that arose from a debate over a decade old concerning the best way to unify the

former colonies and establish a unitary government in the midst of intricate and longstanding

layers and systems of government spread over a large geographic area with a relatively diverse

population. The ratification debates are the last point in time before the Constitution itself, once

accepted, became the framework in which these same debates continued, and they bear within

them a galaxy of unspoken assumptions.

The genesis of the Convention is well documented: the prominent instigators and

members of the Constitutional Convention thought the federal government of the Articles of

Confederation was too weak, and a stronger centralized power was needed, especially (but by no

means exclusively) as related to matters of defense and foreign affairs as well as commercial and

financial concerns. The entire thrust of the ensuing ratification debate was over whether or not

the government they had created was too powerful, or would by some fatal flaw lead to some

kind of totalitarian regime. Given this historical context, perhaps one of the oddest

characteristics of the scholarly debate over the political thought underlying the Constitution is

the extent to which it ignores the singular nature of the overarching federal government that was

being debated at the time. Certainly the unique nature of American federalism has always been a

topic of much discussion, yet it is too easily and too often ignored when scholars focus on

philosophic matters such as the meaning of the public good. The debate over ratification was not

a philosophic debate over the general or ultimate purpose of politics or human governance, no

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matter how much those who study and teach such matters generations afterwards might wish it

was. To state the platitude plainly, the debate was over whether or not to adopt a radically

unique and specific form of government in a radically unique and specific historical

circumstance.

While the new Constitution did create a new and supreme government, both directly over

the states and the people of the states, supporters of the new Constitution repeatedly argued and

emphasized that the new federal government would not demolish the state and local

governments, in part because it was designed with limited, circumscribed powers for limited,

circumscribed purposes. The extent to which the new federal government would be limited in

purpose and power was certainly in dispute, but despite certain Anti-Federalists protests to the

contrary, the documentary record reveals it was designed such that the state governments could

continue to legislate, execute and adjudicate virtually anything for any purpose other than what

was prohibited by the federal Constitution. Regardless of the extent to which various

interpretations at the time and ever since have held that Federalist rhetoric downplayed or even

concealed the actual extent of the powers to be conferred by the Constitution to the federal

government, state and local systems of government were to retain their policing powers and

remain the wellspring of criminal and civil law. Further, virtually all significant matters relating

to education and religion were to continue to be regulated by local and state communities.

Despite Anti-Federalist claims to the contrary, there is little evidence that the vast majority of

Federalists thought of the final product of the Constitutional Convention as a Trojan horse that

would lead to the complete abolishment of state and local governments or their transformation

into mere county-like entities beholden to the nation’s capitol.662

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Thus the most obvious caveat to any attempt to derive the political philosophy of

America from the ratification debates is the recognition that these debates are not about

government simply speaking. This was a debate about the proper role of what all concerned

admitted was an unprecedented “partly national, partly federal” government that was not

designed to fulfill the entirety of purposes or create and execute all the laws throughout the states

united.663 This caveat is not final or all encompassing, for the Constitution was indeed supreme

over all other levels of government and the ratification debate does tell us much about what the

founding generation thought about the purpose of government. Yet it is telling that this

qualification is often given little more than lip service en route to explications of the purported

character of the American Founding period. One cannot speak sensibly about an American

“regime” without speaking about the complicated layers of government beneath the federal level

of government throughout the United States that existed before and after the adoption of the

Constitution. The fact that there are few such studies reveals a problem with much of the

scholarship on the founding period as it concerns the purpose of American government.664

Without keeping in mind what the reality of American law and governance was “on the ground”

in state and local communities, one cannot understand what the framers took for granted and

assumed would continue under the Constitution. This is a project that has not yet been

completed, nor, perhaps is it underway even now.

Given the context we have established thus far of the foundations of government and its

twofold purpose, and the role of representation within it, the question arises: what, exactly, is the

function of government outside of protecting individual rights, and how does protecting liberty

and individual rights relate to the public good, if at all? These questions, however, are obscured

by the unique complexity and ambiguity of American federalism, which to this day is a difficult

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and disputed matter. Michael Zuckert, for instance, has plausibly identified six separate,

nuanced understandings of federalism at the time of the Philadelphia Convention, none of which

completely won out in the compromises that led to the final document.665 What is clear is that the

debate over the Constitution was not a debate over the purpose of government per se, but over

whether or not to establish what was understood to be then and now as a unique form of partly

national, and partly federal government. This fact is perhaps the single greatest cause of the

ambiguity of scholarship of the American founding: it is very difficult to determine what the

underlying political philosophy of government writ large to be given the sort of government they

were arguing about and the circumstances in which they did so.

I will outline the Anti-Federalist and Federalist descriptions of the distinction between the

functions of the state and federal government below in order to qualify our analysis of the notion

of the public good in the ratification debates. Both sides in the ratification debate give at least

two reasons for the distinction between the functions of the state and federal government.

First, both sides in the ratification debate hold that the federal government ought to be

limited by its purpose, which is to govern over what is of common concern to all the states and

the people therein, fulfilling functions of government whose ends pertain to all the states

united—ends that the states cannot achieve individually and yet need fulfilled if they are to fulfill

their own functions. This promotion of the good of the whole, or the good of all the states

combined, is seen as a limiting principle, insofar as it would prevent the federal government

from pursuing a variety of purposes that would be left to individual states to pursue on their own.

The Federalists argue that the Constitution sufficiently limits the power of the federal

government in this respect; the Anti-Federalists worry that the Constitution will not sufficiently

limit the federal government to matters concerning the whole, fearing it would potentially or

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actually lead to the destruction or weakening of the states and violations of individual rights in

the pursuit of overreaching or unattainable purposes, or even in the pursuit of otherwise salutary

purposes.

Second, the federal government is understood by both sides to be limited by its nature as

a government over a large geographic territory with a large and diverse population that is already

divided up and governed by several layers of government. All admit there is a natural limit to

what a federal government can accomplish without using tyrannical means that would promote

and protect the good of those under it unequally; that is, if it was not limited in accord with

geography and a varied population it would end up promoting the interests or the private good of

some people or states over other people or states in an unjust manner without regard to what is

truly just, good, and suitable for each and all individuals or states. Once again, the Federalists

argue that the Constitution is sufficiently limited in this respect; the Anti-Federalists dispute that

the Constitution is constructed with this natural limit in mind, arguing it possesses powers that

would potentially or actually lead to the destruction or weakening of the states and violations of

individual rights.

The Anti-Federalists are keenly aware that the Constitution creates a “partly national”

government that is more than a federation of states, establishing or encouraging a total

consolidation of the states by means of a separate and unitary government, at least in some key

areas of governmental powers and purposes. The Federalists downplay the extent to which the

Constitution would creates a consolidated, separate, and unitary government, but as we shall see

in the next chapter, despite this emphasis they do not hide the fact that the Constitution does

create a government in the fullest sense, directly over the people themselves, at least to some

limited extent. In fact, even if they approach the issue cautiously, this is one of the very reasons

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the Federalists think the Constitution is an improvement over the Articles, and they are seldom

afraid to say so.

There are a few key terms that it is necessary to define at the outset of such an

investigation if we are to understand the meaning of the following arguments. A distinction is

frequently made in the ratification debates between “external” and “internal” government, or

“external” and “internal” advantages of government; “police” is a word often connected to

internal government. Webster’s dictionary defines “internal” as “inward, real, not foreign”;

“internally” could mean “intellectually” as well as “inwardly, within.” 666 “External,” on the

other hand, meant “outward, only in appearance”; externally could mean “in show” as well as

“outwardly.”667 When applied to government, the implication is that external government refers

primarily to foreign affairs or matters only indirectly related to what we would call “domestic

affairs” today, whereas internal government connotes the inner core of what governance is, i.e.,

those matters directly related to the governing of the populace. Webster defined the noun

“police” as “the government of a city or place”; “policed” meant “regulated, governed, ruled”;

“policy” meant “the art of governance, prudence, cunning.”668 One can see the relation of this

meaning to that of “police” patrolling the streets, since somewhere close to the heart of what

most consider government to be is the authority to enforce the law.

The Anti-Federalists are vehemently opposed to a “consolidated” federal government; the

Federalists deny the federal government is completely consolidated. Consolidate is “to harden,

become one body, join”; “Consolidation is defined as “the making of two bodies one.”669

Anti-Federalists The Anti-Federalists were vehemently opposed to the bestowal of the internal or core domestic

functions of government upon a central federal power; it is abundantly clear that if they were full

blown republicans in the modern historiographical sense, the federal government would not be

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the instrument the Anti-Federalists would seek to promote virtue and the public good in the

fullest sense. At least, their understanding of the federal government is that it is ought not pursue

all the purposes of government they speak about in their writings, especially those powers

generally understood to directly relate to the criminal law, education, religion, and morality or

the promotion of virtue.

Impartial Examiner

The Impartial Examiner makes the common distinction between “internal” and “external”

“advantages” that reveal the respective ends of the state and federal governments. Given his

understanding of what the purposes of the federal government are and ought to be, there is no

need for anything more than amendments to the Articles of Confederation. He says that there is

“no contention…about supporting a union, but only concerning the mode” of union, as all sides

“consider the existence of a union as essential to their happiness.”670 He asks “[f]or what can be

more truly great in any country than a number of different states in the full enjoyment of

liberty—exercising distinct powers of government; yet associated by one general head, and

under the influence of a mild, just and well-organized confederation duly held in equilibrio;—

whilst all derive those external advantages, which are the great purposes of the union?”671 Note,

however, that in typical Anti-Federalist fashion the “great purposes of the union” amount to

“external advantages,” as opposed to internal advantages.

When it comes to the internal advantages of the state governments, elsewhere he speaks

approvingly of how “under the confederation it is well known that the authority of Congress

cannot extend so far as to interfere with, or exercise any kind of coercion on, the powers of

legislation in the different states; but the internal police of each is left free, sovereign and

independent…”672 The Impartial Examiner refers approvingly to “[t]he Congress under the

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present confederation” when it comes to “the deputies of sovereign states in the full exercise of

independent government,” these “deputies” are “appointed by the legislatures thereof, not for the

purpose of regulating the internal police of the states, but to superintend their general and foreign

affairs so far as all the states are concerned in common.”673 Referring to Congress under the

Constitution, he says “evils may result in a great measure from an exercise of that branch of

legislative authority which respects internal direct taxation,” which also ought to be left to the

states.674 Whatever else the internal advantages of government might consist of, he thinks they

ought to be pursued by and within the states, while the federal government ought to concern

itself with promoting the aforementioned “external advantages” only.

That these “external advantage” have to do with what relates to all the states combined,

especially concerning matters of defense and commerce, is clear enough from the rest of his

writings: “Is it not possible to strengthen the hands of Congress so far as to enable them to

comply with all the exigenc[i]es of the union—to regulate the great commercial concerns of the

continent,—to superintend all affairs, which relate to the United States in their aggregate

capacity, without devolving upon that body the supreme powers of government in all its

branches?”675 In his fifth essay, Impartial Examiner explicitly takes up the question of the

purpose of the Confederation. He says that “[i]t seems to be agreed on all sides that in the

present system of union the Congress are not invested with sufficient powers for regulating

commerce, and procuring the requisite contributions for all expences, that may be incurred for

the common defence or general welfare. Hence arise the principal defects;—and it is presumed

that the evils resulting from these weak branches in the fœderal government might be adequately

remedied by making due amendments merely therein.”676 On the other hand, “the proposed

fœderal constitution” would “transfer the individual sovereignty from each state to the aggregate

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body,” giving “Congress an authority to interfere with, and restrain the legislatures of every

state…with supreme powers of legislation throughout all the states.” The Constitution, in his

view, thus “annihilates the separate independency of each [state]; and, in short—swallows up

and involves in the plenitude of its jurisdiction all other powers whatsoever.”677 The problem is

that the Federalists wish to “form one extended empire by compounding the whole, and thus

destroying the sovereignty of each” state.678

The Impartial Examiner wishes the states to retain their powers of “internal” government,

or government, simply speaking, and to continue to pursue all purposes outside of the protection

of individual rights the people have reserved in each state. He believes that the ends of the

Confederation ought to be the ends of the Constitution, and these ends can be met by simply

amending the Articles. The problem for the Impartial Examiner lies in the “mode” the

Federalists have proposed: he thinks there is no need to change the form of the government of

the Articles; there is no need in his understanding for a separate government in the fullest sense,

possessing any sort of independent sovereignty over the internal powers and purposes of the

states and governing over the people directly.

Federal Farmer

The Federal Farmer is more moderate than the Impartial Examiner in that he does not

make as clean a distinction between internal and external functions of government; in some ways

he admits that a new form of government is needed, and that some internal functions ought to be

turned over to a higher, central authority. He even uses the word “consolidation”—a word often

used disparagingly by Anti-Federalists— in a positive light, even if only to advocate for a

“partial consolidation” over and against the desire for a “compleat consolidation” that he thinks

motivated the makers of the Constitution.679 Yet like most of the participants in the ratification

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debate, he argues that any overarching government in America must be limited by its nature and

purpose and, like many Anti-Federalists, his argument makes the internal versus external

distinction between state and federal government.

He concludes that, given the circumstances of the people and the geography of the states,

one government ruling over all the people in states in any substantial, “internal” sense, would

lead to injustice and unfair treatment of the various parts of the union. “Independant of the

opinions of many great authors, that a free elective government cannot be extended over large

territories, a few reflections must evince, that one government and general legislation alone

never can extend equal benefits to all parts of the United States.” Like many Anti-Federalists,

the Federal Farmer gives two reasons for this. One reason is geographic and numerical: “The

United States contain about a million of square miles, and in half a century will, probably,

contain ten millions of people; and from the center to the extremes is about 800 miles.” The

other is moral and cultural: “Different laws, customs, and opinions exist in the different states,

which by a uniform system of laws would be unreasonably invaded.”680

The Federal Farmer stands with the Impartial Examiner on the matter of “internal police”

(i.e., internal government) and the distinction between internal and external functions of

government. Since there are already “about 200 state senators in the United States,” he argues

that anything less than that number “of federal representatives cannot, clearly, be a full

representation of this people, in the affairs of internal taxation and police, were there but one

legislature for the whole union. The representation cannot be equal, or the situation of the people

proper for one government only...”681 Due to this fact and the differences of the aforementioned

“laws, customs, and opinions” spread across such a large territory and population “there is no

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substantial representation in the people provided for in a government, in which the most essential

powers, even as to the internal police of the country, is proposed to be lodged.”682

Thus the Federal Farmer worries that the powers of the Constitution, “legislative,

executive, and judicial, respect internal as well as external objects.” He admits that powers

“respecting external objects, as all foreign concerns, commerce, impost, all causes arising on the

seas, peace and war, and Indian affairs, can be lodged no where else, with any propriety, but in

this government” and, even further, that “[m]any powers that respect internal objects ought

clearly to be lodged in it; as those to regulate trade between the states, weights and measures, the

coin or current monies, post-offices, naturalization, &c.” The reason these internal objects are

appropriate in the hands of the federal government, however, is that “[t]hese powers may be

exercised without essentially effecting the internal police of the respective states.” In other

words, he grants that some “internal” functions of government can be taken over by the federal

government without disturbing the internal government of the states.

Yet the Constitution, he thinks, will also exercise powers “essentially affecting” the

internal governance of the states: “But powers to lay and collect internal taxes, to form the

militia, to make bankrupt laws, and to decide on appeals, questions arising on the internal laws of

the respective states, are of a very serious nature, and carry with them almost all other powers.

These taken in connection with the others, and powers to raise armies and build navies, proposed

to be lodged in this government, appear to me to comprehend all the essential powers in the

community, and those which will be left to the states will be of no great importance.”683 For

instance, “[t]axes may be of various kinds; but there is a strong distinction between external and

internal taxes”684; he “can scarcely believe we are serious in proposing to vest the powers of

laying and collecting internal taxes in a government so imperfectly organized for such

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purposes.”685 Similarly, “[t]here are some powers proposed to be lodged in the general

government in the judicial department, I think very unnecessarily, I mean powers respecting

questions arising upon the internal laws of the respective states.”686

Lodging such powers with a central federal government with such a faulty system of

representation will create inequality and special preferences through the rule of the few over the

many. While he says that “I Know that powers to raise taxes, to regulate the military strength of

the community on some uniform plan, to provide for its defence and internal order, and for duly

executing the laws, must be lodged somewhere,” he says “but still we ought not to lodge them, as

evidently to give one another of them in the community, undue advantages over others” and by

so doing, as we have seen, “commit the many to the mercy, prudence, and moderation of the

few.” 687 Under the Constitution, then, “unless the people shall make some great exertions to

restore to the state governments their powers in matters of internal police; as the powers to lay

and collect, exclusively, internal taxes, to govern the militia, and to hold the decisions of their

own judicial courts upon their own laws final, the balance cannot possibly continue long; but the

state governments must be annihilated, or continue to exist for no purpose.”688

Since, he says, “[o]ur territories are far too extensive” even “for a limited monarchy,” the

“[t]he most elligible system is a federal republic, that is, a system in which national concerns

may be transacted in the centre, and local affairs in state or district governments.”689 As he often

does, he uses Federalist language here although he does not quite mean what a Federalist might.

As to “local affairs,” he says “[t]he fact is, that the detail administration of affairs, in this mixed

republic, depends principally on the local governments; and the people would be wretched

without them: and a great proportion of social happiness depends on the internal administration

of justice, and on internal police.”690 If “eight or nine men” who understood this point had been

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able to attend the Philadelphia Convention, he says, “the result of the convention would not have

had that strong tendency to aristocracy now discernable in every part of the plan. There would

not have been so great an accummulation of powers, especially as to the internal police of the

country, in a few hands, as the constitution reported proposes to vest in them—the young

visionary men, and the consolidating aristocracy, would have been more restrained than they

have been.”691

The young visionaries, in his view, placed the powers of internal police, or the general

and full powers of government, into the hands of the federal government. As we have seen, the

Federal Farmer thought that the federal government should concern itself only with “those

national objects which cannot well come under the cognizance of the internal laws of the

respective states”692 but under the Constitution “[t]he powers lodged in the general government,

if exercised by it, must ultimately effect the internal police of the states, as well as external

concerns.”693 “It has been well observed, that our country is extensive, and has no external

enemies to press the parts together: that, therefore, their union must depend on strong internal

ties. I differ with the gentlemen who make these observations only in this, they hold the ties

ought to be strengthened by a considerable degree of internal consolidation; and my object is to

form them and strengthen them, on pure federal principles.”694 He reiterates the point:

We may consolidate the states as to certain national objects, and leave them severally

distinct independent republics, as to internal police generally. Let the general government

consist of an executive, a judiciary and balanced legislature, and its powers extend

exclusively to all foreign concerns, causes arising on the seas, to commerce, imports,

armies, navies, Indian affairs, peace and war, and to a few internal concerns of the

community; to the coin, post-offices, weights and measures, a general plan for the militia,

to naturalization, and, perhaps to bankruptcies, leaving the internal police of the

community, in other respects, exclusively to the state governments: as the administration

of justice in all causes arising internally, the laying and collecting of internal taxes, and

the forming of the militia according to a general plan prescribed. In this case there would

be a compleat consolidation, quoad certain objects only.695

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Here we see him speak positively of a “compleat consolidation,” albeit to “certain objects only.”

This sounds remarkably similar to the Federalists, despite his reference to “severally distinct

independent republics.” Note that he says the “administration of justice in all causes arising

internally” ought to be the province of the state governments only, and not the Constitution.

Still, this leaves the administration of justice across state lines open for the federal government;

further, matters of “peace and war” as well as commerce, which Federal Farmer agree should be

in the hands of the federal government, cannot be completely unrelated to virtue and the public

good in any classical understanding.

Brutus

Despite the constant Federalist defense that the federal government was, in fact, limited

and would not destroy the government of the states, Brutus helps reveals why this defense did

not satisfy the Anti-Federalists. He turns to the text of the Constitution itself, often turning to the

preamble as well as the body to determine examine its purpose, arguing that the Constitution

establishes an open pathway for the central government to interfere with the internal governance

of the states.

In Brutus’s sixth essay he says he has shown in his previous essays that “a simple free

government could not be exercised over this whole continent, and that therefore we must either

give up our liberties and submit to an arbitrary one, or frame a constitution on the plan of

confederation.” As we have seen in previous chapters, he thinks that geography, population, and

varying custom and morality prevent other alternatives. He says “the principal advocates of the

new constitution” agree with the two options on the table.696 “The question therefore between

us…is, whether or not this system is so formed as either directly to annihilate the state

governments, or that in its operation it will certainly effect it.”697 Regardless of good intentions

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to the contrary, he goes on to argue throughout his sixth and seventh essay that the Constitution

will lead to the end of the state governments.

Brutus cites Federalist 23: “the means ought to be proportioned to the end; the person,

from whose agency the attainment of any end is expected, ought to possess the means by which

it is to be attained.”698 He replies:

The means, says the gentleman, ought to be proportioned to the end: admit the

proposition to be true it is then necessary to enquire, what is the end of the government of

the United States, in order to draw any just conclusions from it. Is this end simply to

preserve the general government, and to provide for the common defence and general

welfare of the union only? certainly not: for beside this, the state governments are to be

supported, and provision made for the managing such of their internal concerns as are

allotted to them. It is admitted, “that the circumstances of our country are such, as to

demand a compound, instead of a simple, a confederate, instead of a sole government,”

that the objects of each ought to be pointed out, and that each ought to possess ample

authority to execute the powers committed to them. The government then, being complex

in its nature, the end it has in view is so also; and it is as necessary, that the state

governments should possess the means to attain the ends expected from them, as for the

general government. Neither the general government, nor the state governments, ought to

be vested with all the powers proper to be exercised for promoting the ends of

government. The powers are divided between them—certain ends are to be attained by

the one, and other certain ends by the other; and these, taken together, include all the ends

of good government.699

What then, are the ends of state government as opposed to the federal one? Brutus says that “the

Congress are authorized only to controul in general concerns, and not regulate local and internal

ones; and these are as essentially requisite to be provided for as those. The peace and happiness

of a community is as intimately connected with the prudent direction of their domestic affairs,

and the due administration of justice among themselves, as with a competent provision for their

defence against foreign invaders, and indeed more so.”700 Thus Brutus, like his fellow Anti-

Federalists, understands the “peace and happiness” of the people to depend more upon internal

affairs, or the “due administration of justice” at the heart of the purpose of government. This

purpose ought to be pursued, in his view, by the government of the states, who must be allowed

to perform this function without interference from the federal government.

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Brutus continues this argument in his seventh essay. He again cites Federalist 23:

“…there can be no limitation of that authority which is to provide for the defence and protection

of the community.” His response further reveals his understanding of the depth of the proper

ends of the state government as opposed to an overarching federal goverment.

The pretended demonstration of this writer will instantly vanish, when it is considered,

that the protection and defence of the community is not intended to be entrusted solely

into the hands of the general government, and by his own confession it ought not to be…

it ought to be left to the state governments to provide for the protection and defence of

the citizen against the hand of private violence, and the wrongs done or attempted by

individuals to each other—Protection and defence against the murderer, the robber, the

thief, the cheat, and the unjust person, is to be derived from the respective state

governments… The state governments are entrusted with the care of administering justice

among its citizens, and the management of other internal concerns, they ought therefore

to retain power adequate to the end. The preservation of internal peace and good order,

and the due administration of law and justice, ought to be the first care of every

government. 701

In other words, once again, the “preservation of internal peace and good order, and the due

administration of law and justice” is primarily the role of the state governments, and the federal

government ought to ensure that they are able to perform this role seemingly only insofar as they

protect the states from outside enemies. He continues:

The happiness of a people depends infinitely more on this than it does upon all that glory

and respect which nations acquire by the most brilliant martial achievements…If a proper

respect and submission to the laws prevailed over all orders of men in our country; and if

a spirit of public and private justice, oeconomy and industry influenced the people, we

need not be under any apprehensions but what they would be ready to repel any invasion

that might be made on the country…I do not make these observations to prove, that a

government ought not to be authorised to provide for the protection and defence of a

country against external enemies, but to shew that this is not the most important, much

less the only object of their care702

Here we see that “a proper respect and submission to the laws,” a commerce imbued with the

virtue of economy and industry (as opposed to a martial republic—one thinks of Sparta), and “a

spirit of public and private justice” are in a very real sense more important objects of care for

government than the “protection and defence of a country.” The “happiness of a people depends

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infinitively more” on the functions that even the Federalists admit the state governments

primarily possess.

Brutus goes on to make clear that these functions relate to what one might call the

“higher” purposes of government:

The European governments are almost all of them framed, and administered with a view

to arms, and war, as that in which their chief glory consists; they mistake the end of

government—it was designed to save mens lives, not to destroy them. We ought to

furnish the world with an example of a great people, who in their civil institutions hold

chiefly in view, the attainment of virtue, and happiness among ourselves…The czar Peter

the great, acquired great glory by his arms; but all this was nothing, compared with the

true glory which he obtained, by civilizing his rude and barbarous subjects, diffusing

among them knowledge, and establishing, and cultivating the arts of life: by the former

he desolated countries, and drenched the earth with human blood: by the latter he

softened the ferocious nature of his people, and pointed them to the means of human

happiness. The most important end of government then, is the proper direction of its

internal police, and œconomy; this is the province of the state governments, and it is

evident, and is indeed admitted, that these ought to be under their controul.703

Those who think the Anti-Federalists defended older traditions of political thought frequently

lean their arguments heavily on Brutus for good reason. He says the “attainment of virtue, and

happiness among ourselves” is to be directly pursued by the states and their local government;

“true glory” comes from diffusing…knowledge, and establishing, and cultivating the arts of

life.” “The most important end of government” is that of the state governments, attained

primarily through the criminal law and its enforcement as well as the regulation of commerce

and the enforcement of contracts.

Brutus cites Noah Webster’s pamphlet arguing that the Anti-Federalist “idea that

Congress can levy taxes at pleasure, is false” since “the preamble to the constitution is

declaratory of the purposes of the union, and the assumption of any power not necessary to

establish justice, &c. to provide for the common defence, &c. will be unconstitutional. Besides,

in the very clause which gives the power of levying duties and taxes, the purposes to which the

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money shall be appropriated, are specified, viz. to pay the debts, and provide for the common

defence and general welfare.”704 Like many Federalists, Webster argues that the general welfare

clause is limiting in the sense that it will keep the federal government from interfering in matters

that do not relate to the common interests of all the states together. The obvious problem for

Brutus, as we have seen, is that since the “ideas [that] are included under the terms, to provide

for the common defence and general welfare” are unclear and disputed, “[i]t will then be matter

of opinion, what tends to the general welfare” and under the Constitution “Congress will be the

only judges in the matter.”705

In fact, Brutus’s own exegesis of the preamble argues that insofar as the purposes of the

Constitution are clear and undisputed, it will indeed establish a government that rules over the

states on internal matters. This is because the Constitution itself is ordered to a notion of the

public good, or the general welfare, of the entire nation that in some way comprises all the

purposes of government, with authority that goes all the way through the state and local

governments to the citizenry.

To discover the spirit of the constitution, it is of the first importance to attend to the

principal ends and designs it has in view. These are expressed in the preamble, in the

following words, viz. “We, the people of the United States, in order to form a more

perfect union, establish justice, insure domestic tranquility, provide for the common

defence, promote the general welfare, and secure the blessings of liberty to ourselves and

our posterity, do ordain and establish this constitution,” &c. If the end of the government

is to be learned from these words, which are clearly designed to declare it, it is obvious it

has in view every object which is embraced by any government. The preservation of

internal peace—the due administration of justice—and to provide for the defence of the

community, seems to include all the objects of government; but if they do not, they are

certainly comprehended in the words, “to provide for the general welfare.”706

This is a powerful argument, as it is difficult to argue with the plain words of the preamble.

Thus far we have seen how the Anti-Federalists argued that the actual structure the Constitution

establishes will create a government that will have power over internal matters, assuming the

role of pursuing a unitary public good for the people of the all the states combined; Brutus points

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out here that the Anti-Federalist understanding of the controversial parts of the body of the

Constitution line up with the stated purpose of the document itself.

He continues on, accurately echoing the Federalist understanding of the reason for the

method of the Constitution’s adoption by conventions of the people rather than through the

states.

If it be further considered, that this constitution, if it is ratified, will not be a compact

entered into by states, in their corporate capacities, but an agreement of the people of the

United States, as one great body politic, no doubt can remain, but that the great end of the

constitution, if it is to be collected from the preamble, in which its end is declared, is to

constitute a government which is to extend to every case for which any government is

instituted, whether external or internal. The courts, therefore, will establish this as a

principle in expounding the constitution, and will give every part of it such an

explanation, as will give latitude to every department under it, to take cognizance of

every matter, not only that affects the general and national concerns of the union, but also

of such as relate to the administration of private justice, and to regulating the internal and

local affairs of the different parts. 707

No matter how the Federalists qualify the role of the federal government, there is no getting

around the “partly national” nature of that government which will rule over the whole for the

sake of the whole. It seems clear to Brutus that such a government will indeed have power over

the internal functions of lesser governments and ultimately extend to administering justice

amongst individual citizens.

Not content with this statement of the “general spirit of the preamble, Brutus continues to

examine “more minutely the different clauses of it.” In forming a more perfect union, “it is not

an union of states or bodies corporate; had this been the case the existence of the state

governments, might have been secured. But it is a union of the people of the United States

considered as one body, who are to ratify this constitution.”708 In order to truly “make a union of

this kind perfect, it is necessary to abolish all inferior governments, and to give the general one

compleat legislative, executive and judicial powers to every purpose” and the courts will “give it

such a construction as will best tend to perfect the union or take from the state governments

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every power of either making or executing laws.” Establishing justice “must include not only the

idea of instituting the rule of justice, or of making laws which shall be the measure or rule of

right, but also of providing for the application of this rule or of administering justice under it”

and so “the courts will in their decisions extend the power of the government to all cases they

possibly can, or otherwise they will be restricted in doing what appears to be the intent of the

constitution they should do, to wit, pass laws and provide for the execution of them, for the

general distribution of justice between man and man.” Ensuring domestic tranquility

“comprehends a provision against all private breaches of the peace, as well as against all public

commotions or general insurrections; and to attain the object of this clause fully, the government

must exercise the power of passing laws on these subjects, as well as of appointing magistrates

with authority to execute them.” He stops there, and asserts that although he could “proceed to

the other clause, in the preamble, and it would appear by a consideration of all of them

separately, as it does by taking them together, that if the spirit of this system is to be known from

its declared end and design in the preamble, its spirit is to subvert and abolish all the powers of

the state government, and to embrace every object to which any government extends.”709

This is not only its spirit, however. There is “an express power…vested in the legislature

to make all laws which shall be necessary and proper for carrying into execution all the powers

vested in the general government,” and so “[t]he inference is natural that the legislature will have

an authority to make all laws which they shall judge necessary for the common safety, and to

promote the general welfare. This amounts to a power to make laws at discretion: No terms can

be found more indefinite than these, and it is obvious, that the legislature alone must judge what

laws are proper and necessary for the purpose.”710 Since this legislature will present the problem

of representation we have already discussed, and since a public good for all the states together is

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problematic, Brutus opposes the Constitution. He believes that “it was calculated to abolish

entirely the state governments, and to melt down the states into one entire government, for every

purpose as well internal and local, as external and national.”711

Centinel

Centinel admits that, “[e]xperience having shewn great defects in the present

confederation, particularly in the regulation of commerce and marritime affairs; it became the

universal wish of America to grant further powers, so as to make the federal government

adequate to the ends of its institution.”712 The Constitution, of course, goes much further than

this, and Centinel thinks “[i]t would not be difficult to prove, that any thing short of despotism,

could not bind so great a country under one government; and that whatever plan you might, at

the first setting out, establish, it would issue in a despotism.”713 In fact, “if the United States are

to be melted down into one empire, it becomes you to consider, whether such a government,

however constructed, would be eligible in so extended a territory; and whether it would be

practicable, consistent with freedom? It is the opinion of the greatest writers, that a very

extensive country cannot be governed on democratical principles, on any other plan, than a

confederation of a number of small republics, possessing all the powers of internal government,

but united in the management of their foreign and general concerns.”714 Thus Centinel believes

that “a confederation of small republics, possessing all the powers of internal government, and

united in the management of their general and foreign concerns, is the only system of

government, by which so extensive a country can be governed consistent with freedom.” He goes

on to say that Brutus has already written about this “in so masterly a manner, that it would be

superfluous in me to add any thing on this subject.”715 Elsewhere he approves of the example of

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the Swiss Cantons when he says they “are sovereign and independent in every internal and local

exercise of government.”716

Federalists From the very beginning of the ratification debates, the published writings of the Federalists

were focused upon countering objections they knew would arise based on the power of the new

Constitution. What is likely the first published argument for the Constitution amounts to a

preemptive response to foreseen objections to the Constitution. The Federalists spent most of

their time talking about how the federal government was limited in scope rather than laying forth

a positive account of what it would actually do. Federalist rhetoric, at least, is often surprisingly

consonant with Brutus’s comments about the state governments above—although, of course,

Federalists maintained that the state governments would in substantial respects continue to

operate under the Constitution as they had been before its adoption. John Dickinson provides a

summary of Federalist rhetoric on the matter when he says that whereas “[a]rbitrary princes rule

extensive territories, by sending viceroys to govern certain districts,” “America is, and will be,

divided into several sovereign states, each possessing every power proper for governing within

its own limits for its own purposes, and also for acting as a member of the union.”717 “In short,

the government of each State is, and is to be, sovereign and supreme in all matters that relate to

each state only. It is to be subordinate barely in those matters that relate to the whole; and it will

be their own faults, if the several states suffer the federal sovereignty to interfere in things of

their respective jurisdictions.”718

Tench Coxe

After the revolution, “[i]n devising the frames of government it may have been difficult to avoid

extremes opposite to the vices of that we had just rejected; nevertheless many of the State

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constitutions, we have chosen, are truely excellent. Our misfortunes have been, that in the first

instance we adopted no national government at all, but were kept together by common danger

only, and that in the confusions of a civil war we framed a Federal Constitution now universally

admitted to be inadequate to the preservation of liberty, property, and the union.”719

Consolidation in a federal government is not an intrinsic evil; Coxe notes that “articles strongly

partaking of the nature of consolidation are observable” even in the Articles of Confederation.720

Coxe reveals the ambiguity of American federalism when he says that “[t]ho’ the United States

are not now, nor are not, as we conceive, intended to be under a general government, competent

to internal purposes articles strongly partaking of the nature of consolidation are observable

national maxims apply forcibly and properly to our situation.”721 Whatever these maxims are

and whatever they entail, Coxe says that as “under the old so under the new fœderal constitution,

the thirteen United States were not intended to be, and really are not consolidated, in such

manner as to absorb or destroy the sovereignties of the several states. In order to [have] a perfect

understanding of each other, it may be proper to observe here, that by your term consolidation I

understand you mean the final annihilation of separate state government or sovereignty, by the

nature and operations of the proposed constitution.722 While the new government might, in fact,

be partly consolidated, Federalist rhetoric often follows this approach in responding to Anti-

Federalist criticism, pointing out that that it will in no way annihilate the states, but rather

incorporates them into its very structure. The Federalist argument is that the Constitution will

not require a total and complete consolidation.

In fact, Tench Coxe says, “It will be found, on a careful examination, that many things,

which are indispensibly necessary to the existence and good order of society, cannot be

performed by the fœderal government, but will require the agency and powers of the state

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legislatures or sovereignties, with their various appurtenances and appendages.”723 One example

might be, as he says elsewhere, that “[e]very regulation relating to religion, or the property of

religious bodies, must be made by the state governments, since no powers affecting those points

are contained in the constitution.”724 Further, “[t]states will regulate and administer the criminal

law, exclusively of Congress, so far as it regards mala in se, or real crimes; such as murder,

robbery, &c. They will also have a certain and large part of the jurisdiction, with respect to mala

prohibita, or matters which are forbidden from political considerations, though not in themselves

immoral; such as unlicenced public houses, nuisances, and many other things of the like

nature.”725 Coxe’s full list of examples of state powers of a “domestic nature” under the

Constitution is instructive:

The several states can create corporations civil and religious; prohibit or impose duties on

the importation of slaves into their own ports; establish seminaries of learning; erect

boroughs, cities and counties; promote and establish manufactures; open roads; clear

rivers; cut canals; regulate descents and marriages; licence taverns; alter the criminal law;

constitute new courts and offices; establish ferries; erect public buildings; sell, lease and

appropriate the proceeds and rents of their lands, and of every other species of state,

property; establish poor houses, hospitals, and houses of employment; regulate the

police; and many other things of the utmost importance to the happiness of their

respective citizens. In short, besides the particulars enumerated, every thing of a domestic

nature must or can be done by them.726

In a previous essay, Coxe maintained that the federal government could not involve itself in

many of these same functions of government.727

Thus the Federalists, no less than the Anti-Federalists, also often speak of government at

the state level in a very different way than they do at the national level. Both sides understand

that the state and local governments will deal directly with education, religion, and criminal

law—in short, the very aspects of government that are traditionally understood to most directly

relate to the common good in the fullest sense.

James Wilson

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Although Wilson’s “State House” speech is largely a refutation of Anti-Federalist

objections, the brief, positive argument contained within it was profoundly influential:

It will be proper, however, before I enter into the refutation of the charges that are

alleged, to mark the leading discrimination between the state constitutions and the

Constitution of the United States. When the people established the powers of legislation

under their separate governments, they invested their representatives with every right and

authority which they did not in explicit terms reserve; and therefore upon every question,

respecting the jurisdiction of the house of assembly, if the frame of government is silent,

the jurisdiction is efficient and complete. But in delegating federal powers, another

criterion was necessarily introduced, and the congressional authority is to be collected,

not from tacit implication, but from the positive grant expressed in the instrument of

union. Hence it is evident, that in the former case everything which is not reserved is

given, but in the latter the reverse of the proposition prevails, and everything which is not

given, is reserved.728

Whether Wilson’s argument is the whole truth of the matter or not, investigating such influential

and oft-repeated distinctions is a central part of any attempt to uncover the underlying political

philosophy of American government. If Wilson is right, given the subject matter of the

Constitution, one would think that many, if not most of the laws and policies that relate to a

substantial notion of the public good would be part of the state and local governments.

This point is worthy of emphasis, as many use this passage as a springboard into more

particular issues rather than considering its broader implications. Regardless of the potential

ambiguities in Wilson’s famous statement of American federalism, the general meaning of his

expression, enshrined in the 10th amendment, has profound and real implications for any search

for the founding generation’s understanding of the purpose of government. The likes of Agrippa

and James Wilson agree in a broad sense that the people were understood to have given their

state governments “every right and authority” not reserved by them, so long as they did not trade

away their natural rights. This point was not in dispute, and taken in context it implies a

conception of human government that is difficult to square with simplistic views of “liberalism.”

While Federalists believed the Constitution within its sphere ought to possess a depth of

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governmental power that went all the way down through any of the existing governmental

structures, the early American understanding was that the widest grant of power conceivable was

possessed by the states, not the federal government, albeit subject to reservations by the people.

If one was to look for what the purpose of government was considered to be, one would have to

look carefully at state and local laws and practices, as they were understood to be given the

latitude to concern themselves with anything they wished unless restrained in some particular

respect by the community they governed.

Virtually no one in the ratification debates thought it appropriate to give the federal

government the same sort of power, to the same extent as it was held by the states. In his

published November speech from the Pennsylvania ratifying convention Wilson said: “To

support, with vigor, a single government over the whole extent of the United States would

demand a system of the most unqualified and the most unremitted despotism.”729 As the editors

of the Documentary History point out, during the Constitution Convention “Wilson supported, as

essential, a congressional veto of state legislation, but he did not want to ‘swallow up the State

Govts.,’ believing that they could ‘live in harmony’ with the central government. He thought that

the state governments ‘were absolutely necessary for certain purposes’ which the central

government ‘could not reach.’”730 As we shall see in the next chapter, he did not, however,

mean quite what an Anti-Federalist might mean in making the same remark.

Many Federalists spoke similarly and many, like Wilson, made sure everyone heard such

rhetorical flourishes during the ratification debates: “I believe, if it was necessary, it could be

shown that the state governments, as states, will enjoy as much power, and more dignity,

happiness, and security than they have hitherto done. I admit, sir, that some of the powers will be

taken from them, by the system before you; but…” he still believes they will be able to perform

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their essential functions.731 Wilson’s argument, however, begs the question of what, exactly, was

the guiding principle dictating what ought to be given and what ought to be reserved?

As a matter of “peculiar delicacy and importance,” Wilson takes great pains to highlight

the difficulty of applying the principle which he describes in typical Federalist fashion:

“Whatever object of government is confined in its operation and effects within the bounds of a

particular state should be considered as belonging to the government of that state; whatever

object of government extends in its operation or effects beyond the bounds of a particular state

should be considered as belonging to the government of the United States.”732 The meaning of

this common Federalist distinction depends on the extent of their denial of the Anti-Federalist

assertion that the states are too disparate to unite. Federalist arguments consistently revolve

around the assertion that there are common interests and a public good shared by all the states

together, an assertion which Anti-Federalist deny or heavily qualify. Wilson says: “I consider

the people of the United States, as forming one great community; and I consider the people of the

different states, as forming communities again on a lesser scale. From this great division of the

people into distinct communities, it will be found necessary, that different proportions of

legislative powers should be given to the governments, according to the nature, number, and

magnitude of their objects.”733 The Constitution was intended to form a government for the “one

great community” of the people of all the states; the Federalists consistently assume or argue that

this community does indeed share in a public good.

Substituting the people of the states for the naturally social individuals in need of

government, Wilson says that “[w]hen a confederate republic is instituted, the communities, of

which it is composed, surrender to it a part of their political independence, which they before

enjoyed as states,” and for the same reason.734 Just as “civil government is necessary for the

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perfection and happiness of man,” so is the federal government necessary for the good of the

states: “The states should resign, to the national government, that part, and that part only, of

their political liberty, which placed in that government will produce more good to the whole than

if it had remained in the several states. While they resign this part of their political liberty, they

retain the free and generous exercise of all their other faculties as states, so far as it is compatible

with the welfare of the general and superintending confederacy.”735 This “good to the whole” or

“welfare” of all the states together requires a commensurate central authority. The Federalist

argument requires the existence of a national public good, and to the extent this public good

exists, as we shall see in the next chapter, the federal government must reign supreme. Leaving

aside the question of this supremacy, Wilson expressly denies, and there is no reason to think

that he or any other Federalist believed, that the federal government of the Constitution is

intended to completely fulfill the purposes of human governance.

Noah Webster

Like Wilson, Webster argues that the Constitution’s promotion of the general welfare

entails the supremacy of the federal government while simultaneously acting as its limiting

principle. While “[t]he powers lodged in Congress are extensive…it is presumed that they are

not too extensive.”736 He acts as if the point is self-evident when addressing Anti-Federalist

criticism of the supremacy clause:

You harp upon that clause of the New Constitution, which declares, that the laws of the

United States, &c. shall be the supreme law of the land; when you know that the powers

of the Congress are defined, to extend only to those matters which are in their nature and

effects, general. You know, the Congress cannot meddle with the internal police of any

State, or abridge its Sovereignty. And you know, at the same time, that in all general

concerns, the laws of Congress must be supreme, or they must be nothing.737

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Webster understands “the internal police of any State” to be a power that Congress “cannot

meddle with.” As he says elsewhere, “[e]very person, capable of reading, must discover, that the

convention have labored to draw the line between the federal and provincial powers—to define

the powers of Congress, and limit them to those general concerns which must come under federal

jurisdiction, and which cannot be managed in the separate legislatures—that in all internal

regulations, whether of civil or criminal nature, the states retain their sovereignty, and have it

guaranteed to them by this very constitution.”738 In fact, “no powers are vested in Congress but

what are included under the general expressions, of providing for the common defence and

general welfare of the United States. Any powers not promotive of these purposes, will be

unconstitutional,” and thus, for example, “any appropriations of money to any other purpose will

expose the Congress to the resentment of the states, and the members to impeachment and loss of

their seats.” In short, “[e]very thing of a private or provincial nature, must still rest on the

ground of the respective state-constitutions.”739

In the passage that Brutus attacks above, Webster says “the idea that Congress can levy

taxes at pleasure is false, and the suggestion wholly unsupported.” This is because “[t]he

preamble to the constitution is declaratory of the purposes of our union, and the assumption of

any powers not necessary to establish justice, insure domestic tranquility, provide for the

common defence, promote the general welfare, and to secure the blessings of liberty to ourselves

and our posterity, will be unconstitutional, and endanger the existence of Congress. Besides, in

the very clause which gives the power of levying duties and taxes, the purposes to which the

money shall be appropriated are specified, viz. to pay the debts and provide for the common

defence and general welfare of the United States.” It is only “[f]or these purposes money must

be collected, and the power of collection must be lodged, sooner or later, in a federal head; or the

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common defence and general welfare must be neglected.” After all, “[t]he states in their separate

capacity, cannot provide for the common defence; nay in case of a civil war, a state cannot secure

its own existence. The only question therefore is, whether it is necessary to unite, and provide for

our common defence and general welfare.” If the answer to the question is yes, there is “no

room to controvert the propriety of constituting a power over the whole United States, adequate

to these general purposes.” He give a characteristic Federalist assurance that:

The states, by granting such power, do not throw it out of their own hands—they only

throw, each its proportion, into a common stock—they merely combine the powers of the

several states into one point, where they must be collected, before they can be exerted.

But the powers are still in their own hands; and cannot be alienated, till they create a

body independent of themselves, with a force at their command, superior to the whole

yeomanry of the country.740

Similarly, Webster denies “that the federal courts will absorb the judiciaries of the federal

state” as their “jurisdiction…is very accurately defined and easily understood. It extends to the

cases mentioned in the constitution, and to the execution of the laws of Congress, respecting

commerce, revenue, and other general concerns.” Whatever those “other general concerns” are,

he says that “[w]ith respect to other civil and criminal actions, the powers and jurisdiction of the

several judiciaries of each state, remain unimpaired.”

“If such union must exist…,” Webster says, “[t]his legislature must have exclusive

jurisdiction in all matters in which the states have a mutual interest. There are some regulations

in which all the states are equally concerned—there are others, which in their operation, are

limited to one state. The first belongs to Congress—the last to the respective legislatures.” Since

“[n]o one state has a right to supreme control, in any affair in which the other states have an

interest, nor should Congress interfere in any affair which respects one state only.”741 Given this

principle, “[t]he only question therefore is, whether the new constitution delegates to Congress

any powers which do not respect the general interest and welfare of the United States…If

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therefore the federal constitution has collected into the federal legislature no more power than is

necessary for the common defence and interest, it should be recognized by the states, however

particular clauses may supersede the exercise of certain powers by the individual states. 742

Of course, Webster thinks that the Constitution delegates the proper power to Congress:

“I firmly believe that the life, liberty and property of every man, and the peace and independence

of each state, will be more fully secured under such a constitution of federal government, than

they will under a constitution with more limited powers; and infinitely more safe than under our

boasted distinct sovereignties. It appears to me that Congress will have no more power than will

be necessary for our union and general welfare; and such power they must have or we are in a

wretched state.”743 He immediately adds an appealing prophecy for any potential landowning

reader: “On the adoption of this constitution, I should value real estate twenty per cent. higher

than I do at this moment.”

Oliver Ellsworth

Ellsworth says that: “[n]o alteration in the state governments is even proposed, but they are to

remain identically the same that they now are. Some powers are to be given into the hands of

your federal representatives, but these powers are all in their nature general, such as must be

exercised by the whole or not at all, and such as are absolutely necessary…Why are we told of

the dissolution of our state governments, when by this plan they are indissolubly linked. They

must stand or fall, live or die together.”744 The federal “courts are not to intermeddle with your

internal policy, and will have cognizance only of those subjects which are placed under the

control of a national legislature.”745 “As the state legislatures have to regulate the internal policy,

of every town and neighbourhood, it is convenient enough to have one or two men, particularly

acquainted with every small district of country, its interests, parties and passions. But the fœderal

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legislature can take cognizance only of national questions and interests, which in their very

nature are general, and for this purpose five or ten honest and wise men chosen from each state;

men who have had previous experience in state legislation, will be more competent than an

hundred.”746

Conclusion Such statements do not lead one to necessarily conclude one way or another concerning how

these forms of government, their laws, and the extent to which individuals are to be left free

under them ought to characterized by the conceptual categories of political philosophy. In other

words, one might still argue the founding generation was imbued with “early modern political

philosophy” or “classical republicanism” given this framework. Yet the framework described

above does reveal that any full answer to that sort of question must delve into the laws that were

assumed to be kept operating at the state and local level by all concerned. The argument over

federalism cannot in itself be taken as proof of what early Americans understood the full purpose

of government to be. For the sake of that search, this aspect of the ratification debate is a

warning that the debate is not about government simply speaking; the concept of federalism in

the ratification debates acts as signpost pointing the scholar in other directions.

Certainly criminal law, the very point at which legislation molds the habits of the people

towards a certain way of life by directly prohibiting and punishing certain actions considered

harmful, is in some fundamental sense of general concern for all the states. Yet Webster’s

understanding—common to Federalists and Anti-Federalists alike—of the good of the whole that

pertains to the centralized powers of the Constitution does not directly or immediately include

government’s most obvious means of shaping the habits of the people. This does not necessarily

mean, however, that the federal government is unconcerned with justice, merely seeking to allow

autonomous individuals to live whatever sort of life they wish, but that it seeks “national

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justice,” which apparently does not concern itself directly with private or individual lives and

their relation to each other to the same extent as the state and local governments. No one claims

in the ratification debates, however, that this is because government simply speaking ought not

so concern itself. In fact, the federal government would so concern itself with individuals and

their relation to each other, for instance, when it came to borrowing money and entering into

contracts. Rather, it is repeatedly stated or implied that at the federal level such power could in

many cases lead inevitably to the sort of tyranny all despise. All admit that the state and local

governments do so concern themselves, and nowhere in the ratification debates is it asserted by

any party that the state and local governments ought not so concern themselves. The problems

the former colonies face are never presented in terms of an intrusion upon the lives of

autonomous individuals whose moral, private or individual life ought to be completely left alone.

In fact, as one sees above, it is claimed that the state and local government retain their proper

policing power over things pertaining to the way of life of the citizenry—“every thing of a

private or provincial nature.”

Whether or not the Anti-Federalists harbored sympathies for some version of classical

republicanism, during the ratification debates their explicit complaints were generally directed

against the powers of the proposed federal government; they did not offer a coherent alternative

plan for a federal form of government based on the tenets of anything resembling classical

republicanism, but generally argued for a far less extensive reform of the then current federation

focused largely on economic concerns. Even those who maintain that the Anti-Federalists were

“classical republicans” of some sort generally acknowledge that the Anti-Federalists were

worried that the Constitution would destroy these “classical republican” principles at the state

and local level. Whether or not they saw themselves as “reconciling contradictions,” many of

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the Anti-Federalists acknowledged the difficulty or impossibility of creating an overarching

government over the states in accord with their strongly held principles of sound government

operating within the state and local governments then in existence.

Few scholars assert that the Federalists espoused the modern scholarly notion of classical

republicanism as the ideal form of government, and even if the Federalists were proponents of

classical republicanism, it impossible to imagine the Anti-Federalists assenting to the claim that

the federal government ought to promote a certain way of the life above all others and then

enforce this notion of the best way of life throughout the states by means of a federal system of

criminal laws regulating personal conduct and educational and religious practice. The mere

practical impossibility of such a goal without what would have been considered manifest

despotism was self-evident to all sides. If the Anti-Federalists were largely against even

commercial matters being regulated at the federal level by a unified government to the extent the

Federalists proposed, how could anyone think they would support any sort of federal

involvement in education or some kind of federal ministry or systems of law promoting civic

virtue? In fact, whether one is talking about Publius or Brutus (or, for that matter, Aristotle,

Machiavelli, or Aquinas), it is very difficult to see how any thinking person could maintain that a

federal government in such circumstances could instill virtue or operate for the common good or

promote a certain way of life to the same degree in the same way as the Greek polis, or a local or

state government could over a much smaller population and territory. Thus, for both Federalist

and Anti-Federalist, there is little or no evidence that anyone at the time thought the full range of

principles, elements and ends of what some today call classical republicanism was considered

either practically possible or even desirable at the federal level. The fact that both sides agreed

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on this point, however, does not tell us much about the extent to which the founding generation’s

creation was imbued with the tenets of what we call liberalism or classical republicanism today.

What can be said confidently at the outset of an investigation of this topic consists in this:

however one characterizes the form of government at the state and local level during the

ratification debates, the Anti-Federalists generally treated it as an existing ideal even if they

admitted that some reforms might be necessary. The Federalists, on the other hand, generally

held that there were very real problems with the structure and practice of the state governments,

and they support the Constitution in part because they think it avoided these defects in its design

and would, once established, help to rectify these errors across the states. Any attempt to

determine what is meant by the public good in the ratification debates, then, must take into

account the fact that that the federalism of the Constitution heavily qualifies the depth of the

rhetoric of ratification. To assume that the entirety of the purpose of government itself is at issue

in the debate over the federal Constitution is to assume a falsehood. This falsehood is tempting,

for it provides for much easier philosophic analysis, but it is impossible to obtain a sound

conclusion on the basis of such a faulty foundation.

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Chapter Nine: Union

Introduction No matter how often the Federalists made qualifications about the division between state and

federal powers and purposes, the Anti-Federalists remained justifiably unsatisfied, since it was

clear to the Anti-Federalists that the government of the Constitution was in essential respects

superior to and separate from the governments of the states. What Storing says of Luther Martin

is widely applicable to the Anti-Federalists as a whole:

For Martin, the tasks of the government were divided, but the states were supreme; for

the nationalists, the tasks might be divided, but the national government would be

supreme. In either of these views the tendency was to see any division of powers as a

convenient arrangement sanctioned and subject to reassessment by the supreme power,

whether that was the states or the federal government. The Anti-Federalists could not

consistently hold to the doctrine of state supremacy because they admitted it would lead

to anarchy among the states. They could not accept national supremacy because they

thought it would lead to centralized tyranny. To avoid both extremes is the somewhat

dubious promise of new federalism: to provide, somehow, for a government in which

neither whole nor the parts are supreme.747

As Storing points out, the Anti-Federalists, especially as the ratification debate moved forward,

often acknowledged, if grudgingly, the efficacy of something more than a confederation since at

some level “they did see the Union as more than a league”748 even if the more moderate of them

ended up advocating for “something like a divided sovereignty” between the states while “the

Federalists emphasized the primacy of the national component of the mixture.”749 The Anti-

Federalists found it hard to make peace with this “national component”; their unease remained

palpable throughout the course of the debates. Why?

Either the public good is truly one thing and good for all, as the language we have seen in

the last four chapters suggests, or it is not. As we have seen in the last two chapters, the Anti-

Federalists often deny that the people are similar enough in morality, law, and culture to be truly

united under one head; the Federalists, however, all claim the people are united enough in this

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respect. Even if the Anti-Federalists admit something approaching that kind of unity and seem to

desire some of its advantages, however, they indicate that they do not think that the federal

government ought to possess the power to pursue a public good of the whole for fear of

oppression and the loss of liberty. The Federalists acknowledge a division between the states

and the federal government by making a distinction between what concerns the whole and what

concerns the states, yet the meaning of this distinction depends on what, exactly, ought to

concern the whole. On this, the Anti-Federalists and the Federalists disagree. We have already

seen that the Anti-Federalists understand the primary and superior functions of “internal”

government to take place at the state level, and that to some degree the Federalist acknowledge

this distinction to continue under the new federal government. In this chapter, I examine the

Federalist understanding of union in order to better determine their notion of the national public

good and the role of the national government.

Chapter 7 served as a glimpse of the Federalist understanding of the need for an

overarching rule of law to counter the licentiousness of individuals and the states. The Federalist

solution demanded an authority that could deliberate, enact, and enforce law that would counter

the willful or ignorant spurning of the requirements of the public good. This need for authority

thus required a single government over all the states, and the Federalists arguments as to the

unity of that government tell us much about their understanding of the public good. The Anti-

Federalists refused to characterize the problem in the same way (as a problem of willful license

or ignorance on the part of the people and the states) and, to the extent it is clear, their alternative

proposals in the newspapers during the debates do not make the jump to anything resembling a

true central authority over the states after the manner of the Constitution. This very quality of

proposed government was a major source of their unease.

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The Federalist solution was not based on mere force, but on unity. Ideally, by taking the

people and the state governments into and under the federal government, all would be united

such that enforcement would not be necessary in the first place, much like individuals in a state

of nature might be brought into peace through the formation of one government that punishes

wrongdoers. The Federalists hoped to establish a more perfect union, drawing the people and the

states together through a government making law for the whole. This hope, which was to be

fulfilled by a supreme governmental authority, reveals the depth of the Federalist assumption of

the existence of a unitary public good.

As the political philosopher Yves Simon saliently remarked, “the ground for the

constitution of a society is either the attainment of the common good or that of interdependent

private goods; in the first case there is need for authority; in the second, contract suffices.

Conversely, if a society needs authority (for essential reasons), it has a common good for its

ground, and if a society can afford to be purely contractual, it has no other ground than the

interdependence of private goods.”750 This assertion does “not imply any definite stand

concerning the creation of a distinct governing personnel. Those in charge of the common good

and those in charge of particular goods may be distinct groups of persons—this is what happens

in most cases; but the private persons who make up the multitude may all convene in a town

meeting,” in such a case “they no longer are private persons, they are the public reason and will,

endowed with the power to direct private persons toward the common good.”751 The question is

whether or not a government, be it of the town hall or otherwise, has real authority over the

whole of the citizenry. Whether one agrees with Simon or not, it is certainly true that the

Federalists routinely argued that the federal government was setting up a government ordered to

pursuing the public good of all the people of all the states and, albeit for limited purposes, setting

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up a public reason and will; as such the federal government needed authority for what can only

be called “essential reasons.”

Five Federalists are examined below. First, brief summaries of Tench Coxe, Noah

Webster and Oliver Ellsworth give a solid sense of the way in which strong union is portrayed in

Federalist rhetoric; longer analyses of James Wilson and John Dickinson reveal the depth of the

Federalist understanding of union and the public good.

Tench Coxe

One way to begin to understand the Federalist promotion of a more perfect union is through their

understanding of the injustice of commercial regulation throughout the radically democratic

states that we examined briefly in the chapter 8. Coxe says that “[d]esultory commercial acts of

the legislatures, formed on the impression of the moment, proceeding from no uniform or

permanent principles, clashing with the laws of the other states and opposing those made in the

preceding year by the enacting state, can no longer be supported, if we are to continue one

people. A system which will promote the general interests with the smallest injury to particular

ones has become indispensibly necessary.”752 In fact, while the Constitution was being drafted

in Philadelphia, Coxe published an essay echoing James Madison’s desire for a federal veto

power over state legislation. Coxe advised the same in respect to specifically commercial

legislation: “A negative upon all commercial acts of the legislatures, if granted to Congress

would be perfectly safe, and must have an excellent effect…Congress would thus be enabled to

prevent every regulation, that might oppose the general interests, and by restraining the states

from impolitic laws, would gradually bring our national commerce to order and perfection.”753

Note that Coxe thinks that merely by restraining the states negatively the federal government

could bring order and perfection to commerce considered as one whole.

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Noah Webster Noah Webster says that “[it] has been the almost universal wish of the people of America, to

have a more firm energetic Government.—For this desirable purpose, a general Convention has

been appointed, who have framed a Constitution”754 and “[t]he first object of the constitution is

to unite the states into one compact society, for the purpose of government.”755 As we have seen,

Webster thinks that “[t]he present situation of our American states is very little better than a state

of nature.”

If the states should not unite into one compact society, every state may trespass upon its

neighbor, and the injured state has no means of redress but its own military force.

The present situation of our American states is very little better than a state of nature—

Our boasted state sovereignties are so far from securing our liberty and property, that

they, every moment, expose us to the loss of both. That state which commands the

heaviest purse and longest sword, may at any moment, lay its weaker neighbor under

tribute; and there is no superior power now existing, that can regularly oppose the

invasion or redress the injury. From such liberty, O Lord, deliver us!756

By uniting under a central authority, state “trespasses” would be outlawed and punished, and

likely ultimately prevented and curtailed as the states settled into better habits. Once again,

liberty is referred to as a potential problem, not a cure all solution. Like Wilson below and many

others, Webster compares the states to individuals giving up power to government:

…in civil society, political liberty consists in acting conformably to a sense of a majority

of the society. In a free government every man binds himself to obey the public voice, or

the opinions of a majority; and the whole society engages to protect each individual. In

such a government a man is free and safe. But reverse the case; suppose every man to act

without control or fear of punishment—every man would be free, but no man would be

sure of his freedom one moment. Each would have the power of taking his neighbor’s

life, liberty, or property; and no man would command more than his own strength to repel

the invasion. The case is the same with states. If the states should not unite into one

compact society, every state may trespass upon its neighbor, and the injured state has no

means of redress but its own military force.757

As he says elsewhere, “[c]onsidering the states as individuals, on equal terms, entering into a

social compact, no state has a right to any power which may prejudice its neighbors.”758 What is

required is a central authority to enforce this standard of justice over all the states. He says “we

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can have no union, no respectability, no national character, and what is more, no national justice,

till the states resign to one supreme head the exclusive power of legislating, judging and

executing, in all matters of a general nature”759; “it will be conceded that the supreme head of the

states must have power, competent to the purposes of our union, or it will be, as it now is, a

useless body, a mere expense, without any advantage.”760 Note that union entails “national

character” and “national justice” while requiring a “supreme head.” The Constitution “guarantees

the fundamental principles of our several constitutions—it guards our rights,” and without it,

“[w]ithout powers lodged somewhere in a single body, fully competent to lay and collect equal

taxes and duties—to adjust controversies between different states—to silence contending

interests—to suppress insurrections—to regulate commerce—to treat with foreign nations, our

confederation is a cobweb—liable to be blown asunder by every blast of faction that is raised in

the remotest corner of the United States.”761 In short, “Every motive that can possibly influence

men ever to unite under civil government, now urges the unanimous adoption of the new

constitution.”762

Oliver Ellsworth Ellsworth, as noted in chapter seven, thought that the licentious wish to “keep society in

confusion for want of a power sufficiently concentered to promote its good,” 763 but a “coercive

principle” is “necessary for the union.”764

A more energetic system is necessary. The present is merely advisory. It has no coercive

power. Without this, government is ineffectual, or rather is no government at all. But it is

said, such a power is not necessary. States will not do wrong. They need only to be told

their duty, and they will do it. I ask, Sir, what warrant is there for this assertion? Do not

States do wrong…I wish I could say, there were no seeds of similar injustice springing up

among us. Is there not in one of our states [Rhode Island] injustice too barefaced for

eastern despotism? That state is small; it does little hurt to any but itself. But it has a

spirit, which would make a tophet of the universe.”765

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Rhode Island is simply the worst example, however: “When we call ourselves an independant

nation it is false, we are neither a nation, nor are we independant. Like thirteen contentious

neighbours we devour and take every advantage of each other, and are without that system of

policy which gives safety and strength, and constitutes a national structure…If the injured apply

for redress to the assemblies of the several states, it is in vain…If they apply to Congress, it is

also vain, for however wise and good that body may be, they have not power to vindicate either

themselves or their subjects.”766

Some issues require national legislation: “all the interests of navigation and commerce

must be protected by the union or come to ruin”767; “[t]he regulation of trade ever was and ever

must be a national matter. A single state in the American union cannot direct, much less controul

it” and thus “[t]his must be a work of the whole, and requires all the wisdom and force of the

continent…”768 As we have seen, he says that the federal “courts are not to intermeddle with

your internal policy, and will have cognizance only of those subjects which are placed under the

control of a national legislature”769; yet he also says that “[i]t is as necessary there should be

courts of law and executive officers, to carry into effect the laws of the nation; as that there be

courts and officers to execute the laws made by your state assemblies.”770 In regards to the

judiciary, “[a] perfect uniformity must be observed thro’ the whole union or jealousy and

unrighteousness will take place” between the states.771

For Ellsworth the “[s]tates, as well as individuals, are subject to ambition, to avarice, to

those jarring passions which disturb the peace of society. What is to check these? If there is a

parental hand over the whole, this, and nothing else, can restrain the unruly conduct of the

members.”772 At another point he elaborates on the point as relates to the states is if it were

almost self-evident:

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…we see, how necessary for the union is a coercive principle. No man pretends the

contrary. We all see and feel this necessity. The only question is, shall it be a coercion of

Law, or a coercion of arms: There is no other possible alternative. Where will those who

oppose a coercion of Law, come out? where will they end? A necessary consequence of

their principles is a war of the States one against another. I am for coercion by Law, that

coercion which acts only upon delinquent individuals….this legal coercion singles out the

guilty individual, and punishes him for breaking the Laws of the union. All men will see

the reasonableness of this, they will acquiesce, and say, let the guilty suffer. How have

the morals of the people been depraved for the want of an efficient government which

might establish justice and righteousness. For the want of this, iniquity has come in upon

us like an overflowing flood. If we wish to prevent this alarming evil, if we wish to

protect the good citizen in his right, we must lift up the standard of justice, we must

establish a national government, to be enforced by the equal decisions of Law, and the

peaceable arm of the magistrate.”773

Ellsworth continues after his discussion of the “parental hand” with this sentence: “Union is

necessary to preserve commutative justice between the states. If divided, what is to hinder the

large states from oppressing the small?”774 As he says, “an internal government of strength is the

only means of repressing external violence, and preserving the national rights of the people

against the injustice of their own brethren, Even the common duties of humanity will gradually

go out of use, when the constitution and laws of a country, do not insure justice from the public

and between individuals…A government capable of controling the whole, and bringing its force

to a point is one of the prerequisites for national liberty.”775 Although “a power of doing good

always implies a power to do evil if the person or party be disposed,” “power when necessary for

our good is as much to be desired as the food we eat or the air we breathe”; “[i]f we mean to

have our natural rights and properties protected,” the government of the Constitution is

needed.776 To be sure, “[t]he right of the legislature to ordain laws binding on the people, gives

them a power to make bad laws.” Similarly, “[t]he right of the judge to inflict punishment, gives

him both power and opportunity to oppress the innocent; yet none but crazy men will from

thence determine that it is best to have neither a legislature nor judges.”777

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John Dickinson As the last chapter made clear, for John Dickinson the rule of law is necessary to ensure that the

worthy are protected from the licentious, and this protection will allow the worthy to

predominate and thus promote the general welfare. Yet there is one aspect of his argument—and

that of many other Federalists—concerning licentiousness and the rule of law that is missing

from the above account: the need for a unitary, centralized authority that can rule over all the

states together. As Dickinson put it:

When any persons speak of a confederation, do they, or do they not acknowledge, that the

whole is interested in the safety of every part—in the agreement of parts—in the relation

of parts to one another—to the whole—or, to other societies? If they do—then, the

authority of the whole, must be co-extensive with its interests—and if it is, the will of the

whole must and ought in such cases to govern.

If they do not acknowledge, that the whole is thus interested, the conversation should

cease. Such persons mean not a confederation, but something else.778

This redefining of a confederacy sounds very much like a consolidation. A confederation, for

Dickinson, entails a central “authority of the whole” over the all the parts as concerns those

matters that interest the whole. Since the whole includes all the parts, this central authority must

govern over all of them; the authority of the whole is complete and superior when it comes to

what pertains to it. While the “states together may act prudently and honestly, and a part

foolishly and knavishly,” Dickinson thinks “it is a defiance of all probability, to suppose, that

states conjointly shall act with folly and wickedness, and yet separately with wisdom and

virtue.”779

The Federalist position did not deny the difficulty of attaining such unity—especially as

some of the states might tend towards foolery and knavery. The Federalists understood much of

the difficulty to arise from willful evils or errors in judgment amongst the partisans of the states.

Dickinson says that “the difficulty of reconciling the interests of the several states was so near to

INSUPERABLE, in the late Convention, that after many weeks spent in the most faithful labors to

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promote concord, the members were upon the very point of dispersing in the utmost disorder,

jealousy and resentment, and leaving the states exposed to all the tempests of passions, that have

been so fatal to confederacies of democratical republics.”780 When it comes to the opponents of

the Constitution:

…[local objections] spring from the supposed interests of individual states. Thus, for

instance, some inhabitants of large states may desire the system to be so altered, that they

may possess more authority in the decisions of the government; or some inhabitants of

commercial states may desire it to be so altered, that the advantages of their trade may

center almost wholly among themselves; and this predilection they may think compatible

with the common welfare. Their judgment being thus warped at the beginning of their

deliberation, objections are accumulated as very important, that, without this

prepossession, would never have obtained their approbation. Certain it is, that strong

understandings may be so influenced by this insulated patriotism, as to doubt, whether

general benefits can be communicated by a general government.781

As we have seen, Anti-Federalists like Agrippa and others harbored such doubts. Dickinson,

however, refers to “supposed interests” above because he thinks the true interests of each state,

and the predilection actually “compatible with the common welfare,” which would confer

“general benefits” to all, is that predilection which supports the passage of the Constitution.

Dickinson thinks the opponents of the Constitution desire the opposite, which is to

oppose the good of all: “…though THE WHOLE PEOPLE of the United States are to be TREBLY

represented in it in THREE DIFFERENT MODES of representation, and their servants will have the

most advantageous situation and opportunities of acquiring all requisite information for the

welfare of the whole union,” the Anti-Federalists “yet insist for a privilege of opposing,

obstructing, and confounding all their measures taken with common consent for the general

weal, by the delays, negligences, rivalries, or other selfish views of parts of the union.”782 The

Anti-Federalists would thus allow the passions of the states to destroy the whole; they would let

licentiousness run amuck. “Instead of such a perfect body, framed upon the principle that

commands men to associate, and societies to confederate; that which by communicating and

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extending happiness, corresponds with the gracious intentions of our maker towards us his

creatures; what is proposed? Truly, that the natural legs and arms of this body should be cut

off...”783

Dickinson says the “calamities” of ancient Greece were caused by such warped judgment

as he refers to above, and “similar errors. They are expressly ascribed to this cause—that each

city meditated apart on its own profit and ends—insomuch that those who seemed to contend for

union, could never relinquish their own interests and advancement, while they deliberated for

the public.”784 When it comes to the “turbulent temper of some of the states,” the example of the

Greek confederations as they did unite is a case in point, as “we find, that the misbehaviour of

the constituent parts acting separately, or in partial confederacies, debilitated the Greeks under

‘the Amphictionic Council,’ and under the Achœan League, and that this misbehaviour ruined

Greece. As to the former…it wanted a sufficiently close connection of its parts.”785 The

ancient Greek confederations at their best—for Dickinson, “the Achœan league”—provide him

with a better example: “With all it defects, with all its disorders, yet such was the life and vigor

communicated through the whole, by the popular representation of each part, and by the close

combination of all, that the true spirit of republicanism predominated, and thereby advanced the

happiness and glory of the people to so pre-eminent a state, that our ideas upon the pleasing

theme cannot be too elevated.”786 He says of the league that “the wit of man never invented such

an antidote against monarchical and aristocratical projects, as a strong combination of truly

democratical republics,” and “[t]he reason is plain.

As liberty and equality, or as termed by Polybius, benignity, were the foundations of

their institutions, and the energy of the government pervaded all the parts in things

relating to the whole, it counteracted for the common welfare, the designs hatched by

selfishness in separate councils.

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If folly or wickedness prevailed in any parts, friendly offices and salutary measures

restored tranquility. Thus the public good was maintained.787

This is precisely the reason he supports the Constitution, and the manner in which he thinks it

will restrain the passions of the states. This is why Americans should, says Dickinson, echoing

the words of Edmund Randolph, “CLING TO UNION AS THE POLITICAL ROCK OF OUR

SALVATION.”788

Dickinson admits “that extensive territory has in general been arbitrarily governed; and it

is as true, that a number of republics, in such territory, loosely connected, must inevitably rot into

despotism.” Further, he admits the novelty: “[s]uch territory has never been governed by a

confederacy of republics. Granted.” Yet, he asks in reply, “where was there ever a confederacy

of republics, in such territory, united, as these states are to be by the proposed constitution?”789

Why cannot a very extensive territory be ruled by a government of republican form?

Because, its power must languish through distance of parts. Granted, if it be not a “body

by joints and bands having nourishment ministered and knit together.” If it be such a

body, the objection is removed. 790

Besides many of the structural aspects of the Constitution which he deems unique and which he

thinks will lead to unity amongst the states, Dickinson also asks if there has ever been a similar

situation “in which, the people were so drawn together by religion, blood, language, manners and

customs, undisturbed by former feuds or prejudices?”791 Although the states were different,

Dickinson and the Federalists assert that there is a fundamental unity in the way of life of all the

people who populate them. What was required was the power of government over the whole to

express and protect that unity—and promote the public good.

Some version of the notion that an individual must give up rights, or some portion of

liberty, in order to secure what he could not otherwise obtain on his own is repeated throughout

the ratification debates by Federalist and Anti-Federalist alike; the Federalists use the same

principle in reference to the states. The question arises, “what is that share? [to be given up]

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and, how to be managed? Momentous questions!” Dickinson continues to give insight into his

conception of the relation between the individual and the public good:

Are they [the above questions] unanswerable? No. Our most gracious Creator does not

condemn us to sigh for unattainable blessedness: But one thing he demands—that we

should seek for it in his way, and not in our own.

Humility and benevolence must take place of pride and overweening selfishness. Reason,

then rising above these mists, will discover to us, that we cannot be true to ourselves,

without being true to others—that to be solitary, is to be wretched—that to love our

neighbours as ourselves, is to love ourselves in the best manner—that is to give, is to

gain—and, that we never consult our own happiness more effectually, than when we

most endeavour to correspond with the Divine designs, by communicating happiness, as

much as we can, to our fellow-creatures. INESTIMABLE TRUTH! sufficient, if they do not

barely ask what it is, to melt tyrants into men, and sooth[e] the inflamed minds of a

multitude into mildness—<sufficient to overflow this earth with unknown felicity>—

INESTIMABLE TRUTH! which our Maker, in his providence, enables us, not only to talk and

write about, but to adopt in practice of vast extent, and of instructive example.792

The undeniably Christian undertones of this positive account of the natural sociability of man

bear little or no resemblance to the early modern atomistic individualism spoken of in modern

scholarship. The spirit in which one gives over liberty must be charitable rather than selfish, and

it is charity, not selfishness, which truly fulfils the self. Our happiness is found in helping others

achieve happiness. One’s true individual good, the passage implies, is bound up with the good

of others.

Dickinson frequently refers to a “comparison [that] has been made by statesmen and the

learned, between a natural and a political body; and no wonder indeed, when the title of the latter

was borrowed from the resemblance.”793 The analogy of the body is used throughout

Dickinson’s writings for similar purposes. In a passage cited above, Dickinson cites Colossians

2:19 when he implies that “a very extensive territory” can “be ruled by a government of

republican form” if it is “a ‘body by joints and bands having nourishment ministered and knit

together.’ If it be such a body,” the argument against the large republic fails.794 The scripture

passage, from Paul’s letter to the Colossians, refers to those who have lost hold of “the Head,

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from which all the body by joints and bands having nourishment ministered, and knit together,

increaseth with the increase of God.” In verses 9-10 of the same chapter, Paul says that in Christ

“dwelleth all the fulness of the Godhead bodily. And ye are complete in him, which is the head

of all principality and power”; verse 17 says “the body is of Christ.” The import of the quote is

that if all are united through a “head,” which has all “principality and power” over the whole, the

parts will be unified and remain healthy.

Like other Federalists, Dickinson makes the general point that power ought not be

withheld simply because it may be misused: “As to the idea, that this superintending sovereign

will must of consequence destroy the subordinate sovereignties of the several states, it is begging

a concession of the question, by inferring that a manifest and great usefulness must necessarily

end in abuse...” Dickinson continues, “and not only so, but it requires an extinction of the

principle of all society,” since “the undelegated rights of the several states…stand upon the very

same foundation with the undelegated rights of individuals in a society, the federal sovereign

will being composed of the subordinate sovereign wills of the several confederated states.” 795

The states will have “more than” a bill of rights, “for they are…taken into it [the confederation]

as component parts, for their perpetual preservation by themselves. In short, the government of

each State is, and is to be, sovereign and supreme in all matters that relate to each state only. It is

to be subordinate barely in those matters that relate to the whole…”796 Again, he uses the Bible

to draw out the relation between the parts and the whole, or the individual and the common good:

How beautifully and forcibly does the inspired Apostle Saint Paul, argue upon a sublimer

subject, with a train of reasoning strictly applicable to the present? His words are—“If the

foot shall say, because I am not the hand, I am not of the body; is it therefore not of the

body? and if the ear shall say, because I am not the eye, I am not of the body; is it

therefore not of the body?” As plainly inferring, as could be done in that allegorical

manner, the strongest censure of such partial discontents and dissentions, especially, as

his meaning is enforced by his description of the benefits of union in these expressions—

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“But, now they are many members, yet but one body: and the eye CANNOT say to the

hand, I have no need of thee; nor again, the head to the feet, I have no need of you.”

The metaphor of the body reveals that it is good for each part to remain in unity with the others,

and “partial discontents and dissentions” ignore the “benefits of union” for each part. He

continues on to give a secular example from Plutarch concerning ancient Rome, “[w]hen the

commons of Rome upon a rupture with the senate, seceded in arms.” Menenius Agrippa calmed

them by telling a story about the parts of the body who sought to rebel against the stomach,

which they saw themselves as serving for no reason—not considering that the stomach provided

sustenance to the rest of the body. “The unpolished but honest-hearted Romans of that day,

understood him, and were appeased. They returned to the city, and—the world was

conquered.”797

The import of the analogy is that the parts of the body will be unable to pursue their given

ends if not properly united with the body. “The common sense of mankind agrees to the

devolution of individual wills in society; and if it has not been as universally assented to in

confederation, the reasons are evident… want of opportunities, or the loss of them, through

defects of knowledge and virtue.”798 The theme throughout Dickinson’s writings is that

“knowledge and virtue” reveals that the parts of the political order—in America, the states and

the citizens that make them up—will not only be unified by a central government with authority

over all, but that the parts themselves will become healthy and strong through such hierarchical

unification. A rebellion of the parts against union, or the hierarchy it entails, will lead to the

death of the parts without such authority in place. A union, under the right head, will help

prevent the “devolution of individual wills” and the wills of the states. For “if a mortification

takes place in one or some of the limbs, and the rest of the body is sound, remedies may be

applied, and not only the contagion prevented from spreading, but the diseased part or parts

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saved by the connection with the body, & restored to former usefulness.”799 As we have seen,

however, if “general putrefaction prevails,” or the “general corruption of manners,” the entire

body will die.

Recall that Dickinson concludes his discussion of the underlying philosophy of rights by

saying that, given his premises, “Each individual then must contribute such a share of his rights,

as is necessary for attaining that SECURITY that is essential to freedom; and he is bound to make

this contribution by the law of his nature; that is, by the command of his creator; therefore, he

must submit his will, in what concerns all, to the will of the whole society.” Similarly, “[t]he like

submission, with a correspondent expansion and accommodation, must be made between states,

for obtaining the like benefits in a confederation. Men are the materials of both. As the largest

number is but a junction of units,—a confederation is but an assembly of individuals.” The

individuals that make up the political body, in other words, are not subsumed into the whole, but

rather remain distinct within it. However, “[t]he sanction of that law of his nature, upon which

the happiness of a man depends in society, must attend him in confederation, or he becomes

unhappy; for confederation should promote the happiness of individuals, or it does not answer

the intended purpose.” Again, the individual good must be promoted by the unified whole, or

else “it does not answer the intended purpose,” which is the happiness or good of all. The good

of the whole is not an abstraction, but is rather good for the individuals who share in it. “Herein

there is a progression, not a contradiction. As man, he becomes a citizen; as a citizen, he

becomes a federalist. The generation of one, is not the destruction of the other.”800

This passage clarifies the relation of the individual to the common good. Far from being

a self-abnegating or self-immolating sacrifice, this “progression” leads to “the happiness of

individuals” rather than their harm as it expands their citizenship to that of a larger whole. For,

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he asks, “[w]hat does he [the individual] lose by this submission?” He answers: “The power of

doing injuries to others—the dread of suffering injuries from them—and, the incommodities of

mental or bodily weakness.” Thus one gains security in one’s own health and safety, and the

ability to pursue what one desires within the context of liberty. He asks next: “What does he

gain by it? The aid of those associated with him—protection against injuries from them or

others—a capacity of enjoying his undelegated rights to the best advantage—a repeal of his

fears—and tranquility of mind—or, in other words, that perfect liberty better described in the

Holy Scriptures, than any where else, in these expressions—“When every man shall sit under his

vine, and under his fig-tree, and NONE SHALL MAKE HIM AFRAID.”801 By submitting to the

political whole one gains peace and the foundation for fulfillment; in such a state one possesses

the liberty from which one can live worthily rather than licentiously, with the assistance of the

laws of the land.

Thus, asks Dickinson, “was there ever a confederacy, that thus adhered to the first

principle of society, obliging by its direct authority every individual, to contribute, when the

public good necessarily required it, a just proportion of aid to the support of the commonwealth

protecting him—without disturbing him in the discharge of the duties owing by him to the state

of which he is an inhabitant; and at the same time so amply, so anxiously provided, for bringing

the interests, and even the wishes of every sovereignty and of every person of the union, under all

their various modifications and impressions, into their full operation and efficacy in the national

councils?”802 In other words, without superseding the rights of the individual, the proposed

Constitution will allow him to “discharge…the duties” he owes to subsidiary political authority,

while implementing, reconciling, and bringing the various interests of all into harmony.

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Dickinson, like the other Federalists, believed that the Constitution could reconcile the

various interests of the union through its centralizing authority. In the same way that Webster

thinks the legislators ought to reconcile interests within a state, Dickinson argues the federal

government will similarly reconcile interests when it comes to modifying the Constitution itself,

as the “undoubted sense of every state, collected in the coolest manner, not the sense of

individuals, will be laid before the whole union in Congress, and that body will be enabled with

the clearest light that can be afforded by every part of it, and with the least occasion of irritation,

to compare and weigh the sentiments of all United America; forthwith to adopt such alterations

as are recommended by general unanimity; by degrees to devise modes of conciliation upon

contradictory propositions; and to give the revered advice of our common country, upon those, if

any such there should be, that in her judgment are inadmissible, because they are incompatible

with the happiness of these states.”803 Indeed, “[i]t cannot be with reason apprehended, that

Congress will refuse to act upon any articles calculated to promote the common welfare, tho’

they may be unwilling to act upon such as are designed to advance PARTIAL interests.” Yet,

“whatever their sentiments may be,” Congress itself will be restrained by the stringent rules and

process the Constitution sets forth as regards amendment.804

As Dickinson says of all citizens: “What concerns all, should be considered by all; and

individuals may injure a whole society, by not declaring their sentiments. It is therefore not only

their right, but their duty, to declare them.”805 The Constitution will set forth a structure by

which, once declared, these sentiments of the states can be reconciled in such a way as to

promote the good of all. His own sentiments could be summed up by his series of rhetorical

questions, which reveal that the purpose of government is ultimately far more than comfortable

self-preservation:

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Can any government be devised, that will be more suited to citizens, who wish for equal

freedom and common prosperity? better calculated for preventing corruption of manners?

for advancing the improvements that endear or adorn life? or that can be more conformed

to the nature and understanding, to the best and the last end of man?806

James Wilson Wilson’s remarks cited in the last chapter from the Constitutional Convention asserting the

necessity of the state governments are somewhat misleading. When Wilson spoke of a federal

government but “did not mean one that would swallow up the State Govts,” the reason he gave

was that “[a]ll large Governments must be subdivided into lesser jurisdictions. As Examples he

mentioned Persia, Rome, and particularly the divisions & subdivisions of England by Alfred.”807

In these examples, the reason for “divisions & subdivisions” is manifestly not because the

smaller territories are sovereign, but seems rather to assume that smaller divisions are necessary

for practical reasons even as a central government remains superior over all the parts.

Wilson presents an account of the states’ relation to the Constitution that is consonant

with Dickinson’s. He does not take the differences between the states lightly:

No small share of wisdom and address is requisite to combine and reconcile the jarring

interests, that prevail, or seem to prevail, in a single community. The United States

contain already thirteen governments mutually independent. Those governments present

to the Atlantic a front of fifteen hundred miles in extent. Their soil, their climates, their

productions, their dimensions, their numbers are different. In many instances a difference

and even an opposition subsists among their interests. And a difference and even an

opposition is imagined to subsist in many more. An apparent interest produces the same

attachment as a real one; and is often pursued with no less perseverance and vigor.808

There are, in other words, valid interests amongst the states that are opposed to one another.

There are also “jarring interests” that only “seem to prevail, in a single community.” During the

Constitutional Convention, the “jarring interests” required the “mutual concessions and

sacrifices” he refers to, “the consequences of mutual forbearance and conciliation.”809 This

meant putting the good of the whole above that of the parts, which is a theme for him as well as

Dickinson.

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In forming this system, it was proper to give minute attention to the interest of all the

parts; but there was a duty of still higher import-to feel and to show a predominating

regard to the superior interests of the whole. If this great principle had not prevailed, the

plan before us would never have made its appearance. The same principle that was so

necessary in forming it is equally necessary in our deliberations, whether we should reject

or ratify it.810

The body needed to reconcile valid interests and drop apparent ones; the Philadelphia

Convention was “necessarily led not only to consider the situation, circumstances, and interests

of one, two, or three states, but of the collective body; and as it is essential to society, that the

welfare of the whole should be preferred to the accommodation of a part, they followed the same

rule in promoting the national advantages of the Union in preference to the separate advantages

of the states. A principle of candor, as well as duty, lead to this conduct; for, as I have said

before, no government, either single or confederated can exist, unless private and individual

rights are subservient to the public and general happiness of the nation.”811 This as clear a

statement as one can find of the Federalist emphasis on the significance of union.

Wilson’s assertion of the necessity of a government over the whole, which, however

limited, will reign supreme over the states within those limitations, is generally representative of

the logic of Federalist rhetoric even if the point is not always explicitly stated. As we have seen,

the entire thrust of the Federalist case is that the central government must deliberate about the

public good, which consists partly in the use of liberty in accordance with just restraint, and that

this central government must have real authority over the entirety of the states united. Even if

the government exists to protect individual rights, it does so while performing other functions

that achieve the public good. Even the most Lockean sounding descriptions of the foundations

of government include the idea that rights themselves must be given up for the sake of the whole,

although they are not often as clear or full of the same “candor” as Wilson is above. Since the

people are the source of federal and state authority, “the powers of the federal government and

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those of the state governments are drawn from sources equally pure.”812 Yet they are not equally

powerful:

After all, it will be necessary, that, on a subject so peculiarly delicate as this, much

prudence, much candor, much moderation, and much liberality should be exercised and

displayed both by the federal government and by the governments of the several states. It

is to be hoped, that those virtues in government will be exercised and displayed, when we

consider, that the powers of the federal government and those of the state governments

are drawn from sources equally pure. If a difference can be discovered between them, it

is in favor of the federal government, because that government is founded on a

representation of the whole Union; whereas the government of any particular state is

founded only on the representation of a part, inconsiderable when compared with the

whole. Is it not more reasonable to suppose, that the counsels of the whole will embrace

the interest of every part, than that the counsels of any part will embrace the interests of

the whole?813

This is why Wilson says that “[i]n forming this government, and carrying it into execution, it is

essential that the interest and authority of the whole community should be binding in every part

of it.”814 Wilson believes that this is a sine qua non of accepting the Constitution. This authority

is not extensive in every respect, but it is supreme: “[i]n forming this system, it was proper to

give minute attention to the interest of all the parts; but there was a duty of still higher import-to

feel and to show a predominating regard to the superior interests of the whole.”815 As with

representation, it is obvious to the Federalists that simply building a structure ordered to the good

of the whole exists will help ensure that the good of the whole is attained, and they are keenly

aware that such a structure does not exist under the Articles, under a government in which they

must depend upon the counsel of various parts to embrace the interests of the whole out of sheer

good will.

In so regarding the primacy of the common good, the Convention as described in the last

paragraph provides a model of what the Constitution itself will do for the states united. As

another version of the same speech has it: “For my part, I think it more natural to presume that

the interest of each would be pursued by the whole, than the reverse of the proposition, that the

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several states would prefer the interest of the confederated body, for in the general government

each is represented, but in the separate governments, only the separate states.”816 If one can

create a governmental structure over the whole by uniting the states within it, one obviously

makes it more likely that the public good will be sought by those within that structure.

Thus, like Dickinson, Wilson also thinks that the basis for pursuing the interest of the

whole is the creation of a central government which will, in turn, create harmony amongst the

states via its unifying power.

When we examine history, we shall find an important fact, and almost the only fact,

which will apply to all confederacies. They have all fallen to pieces, and have not

absorbed the subordinate government[s].

In order to keep republics together they must have a strong binding force, which must be

either external or internal. The situation of this country shows, that no foreign force can

press us together, the bonds of our Union ought therefore to be indissolubly strong.817

The rule over the whole must be complete—and it must be internal, and not a result of external

pressure. As Wilson says in opposition to Anti-Federalist William Findley, “If, when he says it is

a consolidation, he means so far as relates to the general objects of the Union—so far it was

intended to be a consolidation, and on such a consolidation, perhaps our very existence, as a

nation, depends…. With regard to those purposes which are allowed to be for the general welfare

of the Union, I think it no objection to this plan, that we are told it is a complete government.”

(emphasis mine)818 Wilson’s candor here is again instructive. He says out loud what many

Federalists say with less clarity: the federal government is a kind of consolidated government,

although it does not destroy the states or transform them into counties.

In the future, Wilson predicts that some men, apparently much like the Anti-Federalists

he is arguing against, will not seek the public good.

…narrow minds, and some such there are in every government—narrow minds, and

intriguing spirits, will be active in sowing dissensions and promoting discord between

them. But those whose understandings, and whose hearts are good enough to pursue the

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general welfare, will find, that what is the interest of the whole must, on the great scale,

be the interest of every part. It will be the duty of a state, as of an individual, to sacrifice

her own convenience to the general good of the Union.819

Here again, we see an understanding of the common good that does not destroy the individual.

As opposed to what those who seek injustice or are unable to understand what is good due to

their own vice may do or think, “on the great scale,” or ultimately speaking, “what is the interest

of the whole” is also “the interest of every part.” This belief runs like a thread through the

entirety of the Federalist thought on union: there really is a truly common public good of all the

states combined, and it is truly good for each part of the union. In some way individuals and

states must sacrifice their private good for the sake of the public good, yet in truth the good of

the whole is the good of the part. Yet the system will not rely solely on the states to perform

their duty any more than government itself depends on solely on individuals to perform theirs.

The very structure of government and the rule of law that arises from it will assist the process.

Wilson claims, like Dickinson, that man is naturally social, but he adds more nuance in

his account: “Our wants, our talents, our affections, our passions, all tell us that we were made

for a state of society.” Yet any society (“company, fraternity, partnership, union,” according to

Webster) or community requires government, and Wilson immediately qualifies this statement to

introduce its necessity.820 “But a state of society could not be supported long or happily without

some civil restraint.” His reasoning is similar to Dickinson’s. “It is true, that in a state of nature,

any one individual may act uncontrolled by others; but it is equally true, that in such a state,

every other individual may act uncontrolled by him. Amidst this universal independence, the

dissensions and animosities between interfering members of the society would be numerous and

ungovernable.” While men might naturally be social, and inclined to live in community,

government requires men to consciously order themselves in some fashion. Without

government, a “universal independence” reins, and the union of the individuals is informal and

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incomplete. Licentiousness cannot be suppressed without order, or the rule of law, which in turn

requires unified force. Without “civil restraint,” “[t]he consequence would be, that each

member, in such a natural state, would enjoy less liberty, and suffer more interruption, than he

would in a regulated society. Hence the universal introduction of governments of some kind or

other into the social state.”821

Government converts society into something greater in which each individual acquires a

truer, more secure liberty. “The liberty of every member is increased by this introduction; for

each gains more by the limitation of the freedom of every other member, than he loses by the

limitation of his own.”822 The loss of freedom simply speaking—a formless and insecure liberty--

entails a “gain” for each individual” when it comes to their particular freedom. “The result is,

that civil government is necessary to the perfection and happiness of man. In forming this

government, and carrying it into execution, it is essential that the interest and authority of the

whole community should be binding in every part of it.”823

This last sentence is crucial; some version of it is repeated frequently by many of the

Federalists. There must be some binding rule over the whole, without which no government can

curtail liberty used wrongly. As this applies to individuals, so it applies to the states: “The

advantages and necessity of civil government among individuals in society are not greater or

stronger than, in some situations and circumstances, are the advantages and necessity of a federal

government among states.”824 This is why the “great end” of the Constitutional Convention “was

to frame, for the consideration of their constituents, one federal and national constitution—a

constitution, that would produce the advantages of good, and prevent the inconveniences of bad,

government—a constitution whose beneficence and energy would pervade the whole Union; and

bind and embrace the interests of every part—a constitution that would insure peace, freedom,

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and happiness, to the states and people of America.”825 The Constitution will “bind and embrace

the interests of every part,” that is, it will reconcile and express some interests, and curtail and

channel others. This will fulfill the parts of the union. Wilson hopes that the states and the

federal government “will not be the enemies of each other, or resemble comets in conflicting

orbits, mutually operating destruction; but that their motion will be better represented by that of

the planetary system, where each part moves harmoniously within its proper sphere, and no

injury arises by interference and opposition. Every part, I trust, will be considered as a part of

the United States.”826 Much like the body is unified by the head, the planetary system is unified

by the gravity of the sun, which pervades the entire system, allowing for its harmony. Further,

all the parts, like the states and the individuals, according the Federalists, are integral parts of the

entire system.

As “civil government is necessary to the perfection of society,” so is “civil

liberty…necessary to the perfection of civil government.”827 Civil liberty involves a distinction

between the liberties one has without government and those which one keeps under a just

government. “Civil liberty is natural liberty itself, divested only of that part, which, placed in the

government, produces more good and happiness to the community than if it had remained in the

individual. Hence it follows, that civil liberty, while it resigns a part of natural liberty, retains the

free and generous exercise of all the human faculties, so far as it is compatible with the public

welfare.”828 Natural rights, which Wilson discusses elsewhere, are not the only standard

determining how much liberty one keeps; even that portion of liberty that one does keep is still

allowed “so far as it is compatible with the public welfare.” It would be strange to speak

properly of giving up natural liberty in the way Wilson describes it solely as a sacrifice, since

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civil liberty involves giving up liberty in such a way that it produces “more good and happiness”

for all.

Once again, Wilson’s argument ascends to the state on the same principle.

When a single government is instituted, the individuals, of which it is composed,

surrender to it a part of their natural independence, which they before enjoyed as men.

When a confederate republic is instituted, the communities, of which it is composed,

surrender to it a part of their political independence, which they before enjoyed as states.

The principles, which directed, in the former case, what part of the natural liberty of the

man ought to be given up and what part ought to be retained, will give similar directions

in the latter case. The states should resign, to the national government, that part, and that

part only, of their political liberty, which placed in that government will produce more

good to the whole than if it had remained in the several states. While they resign this part

of their political liberty, they retain the free and generous exercise of all their other

faculties as states, so far as it is compatible with the welfare of the general and

superintending confederacy.829

What is essential to these accounts of the relation between individuals and the states to the

government over them is the idea that an individual or a state can, in one respect, retain natural

rights or sovereignty while at the same time, in another respect, giving up liberty and

sovereignty. The Federalists routinely clarify that this is not a contradiction, as an individual

does not give up and keep the same liberty or sovereignty. The individual retains natural rights,

and government exists by means of recognizing and respecting them; at the same time, the

government exists by means of the liberty that the citizens give up for the greater good of each

individual. Similarly with the states, and if the states being thus wholly bound to the federal

government in significant respects achieve a unified good that radiates to all, the same extends to

individuals. To be sure, this good consists in liberty, but as we have seen it is not complete or

completely neutral liberty. The country ought to be filled “with men who will live happy, free,

and secure,” and this ought to be the “great end…of all our patriots and statesmen. But how is it

to be accomplished, by establishing peace and harmony among ourselves…”830

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Wilson cites Montesquieu in order to define the sort of “confederate republic” the

Convention sought to establish: “a convention, by which several states agree to become members

of a larger one, which they intend to establish. It is a kind of assemblage of societies, that

constitute a new one, capable of increasing by means of further association.”831 Under the

Constitution they “will become a nation; at present, we are not one.”

Can we perform a single national act? Can we do any thing to procure us dignity or to

preserve peace and tranquility? Can we relieve the distress of our citizens? Can we

provide for their welfare or happiness?832

Becoming a unified nation is important not only to guarantee rights: Wilson, like Dickinson, says

that “[a]s we shall become a nation, I trust that we shall also form a national character”:

…this character will be adapted to the principles and genius of our system of

government: as yet we possess none; our language, manners, customs, habits, and dress,

depend too much upon those of other countries. …there are not, on any part of the globe,

finer qualities for forming a national character, than those possessed by the children of

America. Activity, perseverance, industry, laudable emulation, docility in acquiring

information, firmness in adversity, and patience and magnanimity under the greatest

hardships;--from these materials, what a respectable character may be raised!833

The Constitution, in other words, will not only secure rights and temper licentiousness, but it will

also form the raw “materials” or “qualities” the people currently possess and help create customs

and habits that will be to some extent uniform throughout the populace. He goes on to speak

about literature and language, and his excitement at the prospect of the formation of a new

American culture was shared by many other Federalists. They saw this formation as possible

under the Constitution and the rule of law and union it would provide.

All of the above helps inform what Wilson means when he says that “civil government is

necessary to the perfection and happiness of man.” His speech given in celebration of

ratification sounds very similar to Dickinson. We have seen already a few of the virtues he

espouses there as necessary to the perfection and happiness of man. He makes it very clear that a

good government helps achieve knowledge and virtue, even laying the ground for holiness:

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…these are not all the advantages that result from a system of good government.

Agriculture, manufactures and commerce will ensure to us plenty, convenience and

elegance. But is there not something still wanting to finish the man? Are internal virtues

and accomplishments less estimable or less attracting than external arts and ornaments?

Is the operation of government less powerful upon the former than upon the latter? By no

means. Upon this, as upon a preceding topic, reason and history will concur in their

information and advice. In a serene mind the SCIENCES and the VIRTUES love to

dwell. But can the mind of a man be serene, when the property, liberty and subsistence of

himself, and of those, for whom he feels more than he feels for himself, depends on a

tyrant’s nod? If the dispirited subject of oppression can, with difficulty, exert his

enfeebled faculties, so far as to provide, on the incessant demands of nature, food just

enough to lengthen out his wretched existence; can it be expected, that, in such a state, he

will experience those fine and vigorous movements of the soul, without the full and free

exercise of which science and virtue will never flourish. Look around you to the nations

that now exist. View, in historic retrospect, the nations that have heretofore existed. The

collected result will be an entire conviction of these all-interesting truths—Where tyranny

reins, there is the COUNTRY of IGNORANCE and VICE—Where GOOD

GOVERNMENT prevails there is the COUNTRY of SCIENCE and VIRTUE. Under a

good government, therefore, we must look for the accomplished man.

But shall we confine our views even here? While we wish to be accomplished men and

citizens, shall we wish to be nothing more? While we perform our duty, and promote our

happiness in this world; shall we bestow no regards upon the next? Does no connexion

subsist between the two? From this connexion flows the most important of all the

blessings of good government. But here let us pause—unassisted reason can guide us no

farther, she directs us to that HEAVEN-DESCENDED SCIENCE, by which LIFE and

IMMORTALITY have been brought to light.834

Wilson ends his speech with these lines:

With heartfelt contentment, industry beholds his honest labours flourishing and secure.

Peace walks serene and unalarmed over all the unmolested regions—while liberty, virtue,

and religion go hand in hand, harmoniously, protecting, enlivening, and exalting all!

Happy country! May thy happiness be perpetual!835

Conclusion There are three overarching points to consider when it comes to the Federalist notion of union.

First, the notion of union entails a full-fledged notion of government. The federal government,

however limited, will have supreme authority over states and individuals, incorporating the states

and arising from the people, with the three branches of government ruling over the country as a

whole. It may be “partly national,” but insofar as it is national it is fully so. Second, this

“internal” aspect of its governance acts as a vehicle to pursue a unitary good of the whole that

requires the individuals and states to submit to a greater good. Third, this submission is also a

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participation and sharing in a greater good than that of the good of the individuals and the states

that is their alone. The union connects the individual and the state to a larger whole in a way that

is said to perfect both the individual and the state; the union expands the citizenship of each

individual while providing a structure within which the states can thrive.

As Webster and Ellsworth make very clear, the federal government is needed to establish

order between the states, and in order to accomplish this it will have supreme power over them

within its purview. The only way for Webster’s “national justice” to be established is through

the “resign to one supreme head.” As Ellsworth says of commerce, “[a] single state in the

American union cannot direct, much less controul it” and thus it “must be a work of the whole,

and requires all the wisdom and force of the continent.” The implication is that, in part for

practical reasons, to ensure order, a unitary power must have authority to pursue what is good for

the whole. Yet a unitary power is also needed to act as a “parental hand” to prevent conflict and

injustice between the states, and this must be accomplished in an evenhanded manner. Thus the

federal government is empowered to order the states and individuals underneath it in a manner

that ensures a right relation between all. As Dickinson says, “the whole is interested in the safety

of every part—in the agreement of parts—in the relation of parts to one another—to the

whole—or, to other societies” and “the will of the whole must and ought in such cases to

govern.”

Second, this right relation between the parts entails a greater good than the private good

of each individual member, or a greater good than the good of each individual part that is not

shareable with the others. While the “commercial states may desire” the Constitution “to be so

altered, that the advantages of their trade may center almost wholly among themselves; and this

predilection they may think compatible with the common welfare” and while “each city” might

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wish to only meditate “on its own profit and ends,” and these ends might in truth be good for the

individual city or states, ultimately the parts all need to serve the good of the whole. As Wilson

says, “it is essential to society, that the welfare of the whole should be preferred to the

accommodation of a part, they followed the same rule in promoting the national advantages of

the Union in preference to the separate advantages of the states.”

Yet this preference is not alienating the parts from their good, but rather assures the

higher good of each individual part. The public good, in other words, is not alien to the good of

the parts, but enables and fulfills them: “the happiness of a man depends in society, must attend

him in confederation, or he becomes unhappy; for confederation should promote the happiness of

individuals, or it does not answer the intended purpose.”

Third, the connection to a greater whole is perfective of both the individual and the

individual state. As we have seen, the Federalist post the states will lose their licentious edge

through the authority of the Constitution. Commerce, as Coxe says, could be ordered even

simply through the federal government nixing bad state law (the Constitution that resulted from

the Convention went even further and simply took power over commerce away from states

altogether). As to the perfection of individuals, Storing’s summary of Dickinson is also

consonant with Wilson’s thought:

The movement from man to citizen is a moral progression. Civil society is entered into to

secure private rights; this requires a moderation of the pride and overweening selfishness

of man in his natural state, which Dickinson sees not only as a means to but as a benefit

of civil society. The same kind of observation applies to the next stage. ‘Federalist’ here

means a member of a wider association concerned with a wider and thereby somehow

higher public good…

The securing of such “private rights” is said to be a cause and end of government throughout the

ratification debates, but their relation to the public good is often ambiguous. For Dickinson, the

giving up of liberty leads to virtue.

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The line of thought here is that as civil society not only secures the rights of the natural

man but improves him, so the government of the Union does not merely secure the states

(admitting them to be parties) but improves or perfects them. And Dickinson makes clear,

what many Federalists do not, that even in a confederation the true parties are men.

States may be the formal parties—and in this sense the narrower view of American Union

may be correct—but an association of states is justified ultimately not in terms of “state”

interest but as a broader or higher association of human beings…This view of the

American Union explains both the Federalists’ claim that the significance of the states

will be increased, not destroyed, but a stronger Union and their very widespread

association of the states with narrow selfishness and the Union with a morally elevated

benevolence and public spirit.836

As Dickinson says:

Can any government be devised…better calculated for preventing corruption of manners?

for advancing the improvements that endear or adorn life? or that can be more conformed

to the nature and understanding, to the best and the last end of man?837

As Wilson says, “liberty, virtue, and religion go hand in hand, harmoniously, protecting,

enlivening, and exalting all!”838

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Chapter Ten: Anti-Federalists, Federalists, and the Public Good

Anti-Federalists

The Anti-Federalists are liberals—reluctant and traditional, indeed—in the decisive sense

that they see the end of government as the security of individual liberty, not the

promotion of virtue or the fostering of some organic common good. The security of

liberty does require, in the Anti-Federalist view, the promotion of civic virtue and the

subordination (not, in the usual case, “sacrifice”) of individual interest to common good;

but virtue and the common good are instrumental to individual liberty, and the

resemblance to preliberal thought is superficial.839

The clearest and most striking aspect of Anti-Federalist thought related to the notion of the

public good is that virtually all the Anti-Federalists argue that the order the Constitution will

establish will not truly serve the public good of all the people of all the states, but will instead

force them, as individuals and as states, to serve a singular and separate good that is alien from

their own. At best, they think the Constitution creates a government that, even if well

intentioned, would unjustly promote the good of some states and groups of individuals over that

of others; at worst, they think that the Constitution would foist the private good of others onto the

people at large, making them serve the good of a tyrant or an elite class of rulers. This latter

worry is what Centinel means when he says that on the basis of his investigation of the

Constitution “it appears that it is devoid of all responsibility or accountability to the great body

of the people, and that so far from being a regular balanced government, it would be in practice a

permanent ARISTOCRACY.”840 Many others agree with him. The Anti-Federalists believe that for

a variety of reasons the Constitution hands over too much power to a central government which

will inevitably misuse this power. In order to keep the public good truly public, the government

that ought to pursue it must be established over a smaller territory, most likely with a more

homogenous population, or it must be significantly weakened.

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Some Anti-Federalists hold that, as the Federal Farmer says, “[t]he states do not differ as

to the age or moral characters of the electors or elected, nor materially as to their property,”841

and yet they still, like the Federal Farmer, think that the flawed representative system of the

proposed Constitution suggests that “we have forgot what the true meaning of representation

is”842 and will thus fail to promote the public good. Others, like Agrippa and Brutus, argue in

addition that the people of the states are too heterogeneous for a true public good to exist

amongst them all. Agrippa and Brutus both explicitly suggest that there is no substantial public

good to be shared amongst the states united because of moral, legal, cultural, and other

circumstantial differences between their respective populations that require or influence them to

seek different ways of life that cannot be harmonized by an overarching government. The public

good must be good for each very real individual in an actual, living community, and this requires

agreement on the fundamental principles of government and a preferred way of life.

Note that both these complaints assume the existence of the public good; the Anti-

Federalist argument assumes the existence of a public good as the end of good government as a

premise whether they are arguing that the flawed federal government of the Constitution will not

actually pursue it or that it cannot exist across state lines. The Anti-Federal requirements of

homogeneity and radically democratic representation as conditions without which the public

good does not exist or is not able to be pursued both reveal their emphasis that the public good

be truly public, or that the common good be truly common, pursued equally for all those who

make up the political body of citizens. The public good is desirable for all, and must extend to

all. Whereas the Federalists emphasize its relation to order, authority, justice, and the question

of what is good, the Anti-Federalists emphasize its commonality and its public aspects; they

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repeatedly assert that it consists in equal application or sharing by all or it ceases to remain truly

public or good. The question is how, exactly, did they understand it to be good?

Like the Federalists, they are not referring to material public goods; the public good

seems to refer to a unitary good that is or ought to be shared in equally in some way by all

citizens. Like the Federalists they verbally tie the public good to liberty, prosperity, safety,

virtue, peace, justice, and happiness. Yet they also heavily emphasize the protection of

individual liberties and freedom even as they make the homogeneity of the populace and

democratic rule of the people necessary conditions of the public good.

Pangle is right to point out that that “the opponents of the Constitution were, by and

large, much more eager to recur to philosophic first principles than were the authors of The

Federalist Papers” whether or not one thinks that “in this appeal to ultimate grounds they were

more, not less, emphatically Lockean.”843 Take, for instance, the Federal Farmer’s statement that

“[i]n free governments the people, or their representatives, make the laws; their execution is

principally the effect of voluntary consent and aid; the people respect the magistrate, follow their

private pursuits, and enjoy the fruits of their labour with very small deductions for the public

use.”844 When one combines this sort of speech with their description of “mirror” re-presentation

and their minimization of the problem of majority rule and licentiousness, it is not difficult to

make a case that their notion of the public good is little more than the majority will to secure an

interdependent network of private goods.

Both sides believe that government is based on the consent of the people at some

fundamental level, but the Anti-Federalists do not seem to deal directly with the obvious

objection to consent: does the might of majority consent make that majority right? The Anti-

Federalist conception of representation in relation to the consent of the people reveals a certain

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ambivalence towards the public good. At least in their language throughout the ratification

debate, their democratic ideals seem to drift toward the underlying idea that, politically speaking,

at least, what is good for all is what all desire; their statements concerning representation seems

to leave no room for deliberation, instead calling for representatives to merely possess the

integrity to re-present the will of the majority. While what is good is traditionally defined as

what is truly desirable in itself, and not what happens to be the choice of the one, the few, or the

many, the Anti-Federalists do not seem to see a need for the federal political structure to take

into account the distinction between what is thought or said to be good for all and what is truly

good for all. They rely on a structure of government that assumes the people are able to

determine for themselves en masse what the public good consists in. When it comes to their

understanding of representation the Anti-Federalists seem very much like unthinking supporters

of a monarch or an aristocracy in that they assume that the people, rather than the king or the

aristocracy, are good enough to rule by unfiltered majority will (on “external,” federal matters

and “internal,” domestic matters alike) without any sort of check other than, perhaps, a bill of

rights.

While the Anti-Federalists sometimes admit that licentiousness, or the immoral and

lawless misuse of liberty on the part of the people is a potential problem, they do not seem to

consider the morality of the people or the justice of state governments to be problems that the

federal government ought to deal with, if they even consider these issues contemporary problems

that need to be faced at all. The fact that they suggest that the federal government ought to

consider only what might be called an “instrumental” public good, or what is merely needful for

the states to do their job, reveals that their understanding that the federal government’s purpose

ought to be as “closed” as possible to “higher” ends.” In other words, they want the federal

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government to take care of a few carefully defined functions that are necessary for the good of

the states. As Storing says, summarizing the Anti-Federalist position:

The governments instituted to secure the rights spoken of by the Declaration of

Independence are the state governments. They do the primary business that governments

are supposed to do. The government of the Union supplements the state governments,

especially by giving them an external strength that none of them could manage on its

own. But in principle the general government is subordinate to the state governments.845

Thus they believe the federal government ought to primarily support the individual states while

the states perform the primary tasks of government, much like in a simplistic liberal conception

of government exists merely to protect the rights of the individual. They reject the idea of a true

union of the states though a national government that would seek to fulfil a common purpose in

the manner of the state governments. Without a strong and in some sense complete union of the

people of the states, and one government that rules directly over them, any conception of a public

good for all Americans combined is severely enervated.

At the national level then, the Anti-Federalists cannot bring themselves to support a

constitutional structure that backs up their occasional lip service for the need for a real harmony

or unity between the states. In other words, they cannot support a government structured around

an understanding of a true unitary public good for the nation as a whole. The Anti-Federalists

seem to want the federal government to act instrumentally for the sake of the states, and they are

heavily focused on the liberty and the protection of rights of the people, which they think the

states can secure but the Constitution as proposed will seriously threaten. The public good seems

to consist in the securing of liberty and rights; the federal government should be severely limited,

as we have seen in chapter eight, such that it deals with strictly “external” functions of

government that support the “internal” governments of the states. For all these reasons, Storing’s

footnote seems correct.

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It is, of course, unquestionable that both sides of the debate understand individual rights

to be tied to the foundation of government, which is ordered, at least in part, to protecting those

rights. Although the securing of rights was held to be an end of government by both sides in the

debate, by the mere fact that the Anti-Federalists were arguing against a centralized government

it stands to rhetorical reason, at least, that they would provide principled appeals to individual

rights and liberty more often than the Federalists. Yet the context of these stated liberal

principles and purposes beg the question of what the function of government is other than

protecting individual rights.

The Anti-Federalists desired a bill of rights because they recognized a complete form of

“internal” government in the Constitution. In the states, they repeatedly claimed that all power

belonged to the state government except what the people expressly reserved, especially via bills

of rights. This reveals the depth of their understanding of the internal purposes of the state

government, which in their view could legislate about virtually anything. From this fact, a

serious objection arises to Storing’s footnote. As we have seen, the Anti-Federalists understood

the government within each state as the most important part of government—as the heart of what

government was and ought to be—and within the states they often suggest that morality or virtue

ought to be promoted and taken into account by government.

Thus, while the Anti-Federalist insistence on the protection of individual rights is well

within what is generally called the liberal conception of government, this insistence does not

necessarily foreclose the possibility of the public good when it comes to the government of the

states because the Anti-Federalist understanding of the protection of the individual and liberty

does not prevent those governments from pursuing or individuals from sharing in a common

good. The Anti-Federalist indicate that government in the fullest sense, in theory and practice,

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but perhaps especially in practice, requires the people under it to give over all power not

expressly kept by them via written agreement. What is “kept” by the people are, indeed,

individual rights—but these are not the only end of government, and they are generally referred

to as something protected to prevent abuse, the protection of which is necessary en route to

government striving to attain other purposes. It is thus false to characterize virtually any

interlocutor in the ratification debate as thinking that the purpose of government is merely to

protect individual rights without qualification. All the interlocutors considered above seem to

hold that government seeks to promote individual rights while fulfilling other needed functions

of government. The question is whether the purpose of government beyond the protection of

individual rights, that is, the purpose of government in promoting these other functions, amounts

to merely establishing the conditions for individuals to separately enjoy the use of their rights as

individuals or if these other functions are ordered to the public good.

As we have seen, the Anti-Federalists speak approvingly from time to time about the

promotion of a non-instrumental public good as the purpose of the government of the states. The

problem of interpretation is most obvious in case of Anti-Federalists like Brutus, who speaks in

seemingly Lockean terms of the origins of government: “In a state of nature every individual

pursues his own interest; in this pursuit it frequently happened, that the possessions or

enjoyments of one were sacrificed to the views and designs of another; thus the weak were a

prey to the strong, the simple and unwary were subject to impositions from those who were more

crafty and designing.”846 Yet, as we have seen in chapter eight in his descriptions of the ends of

state government he says “[t]he state governments are entrusted with the care of administering

justice among its citizens”847; “[t]he preservation of internal peace and good order, and the due

administration of law and justice, ought to be the first care of every government”848; “true glory”

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comes to a regime by means of “diffusing…knowledge, and establishing, and cultivating the arts

of life”849; “[w]e ought to furnish the world with an example of a great people, who in their civil

institutions hold chiefly in view, the attainment of virtue, and happiness among ourselves.”850

Does Brutus think that, although arising from need and self-preservation, the purpose of

government expands to something higher; in other words, is his conception of the origins of

government and the end of government necessarily intrinsically contradictory? Or is he at one

time using ideological language and at another expressing his true opinion based on

experience—and which statement is which? Regardless, we find similar ambiguity even in far

more “modern” sounding authors like Agrippa.

Agrippa provides a telling test case because he is so easily identifiable as a proponent of

an extremely weak confederal arrangement. As Storing describes Agrippa’s argument, Agrippa

think that “[t]he function of the presiding political authority ought to be merely to serve the

commercial intercourse among the states.”851 Yet even Agrippa gives the careful reader cause to

wonder whether he thinks the same way about state and local government. This is representative

of the riddle of the ratification debate and the public good: it is not clear what Federalists or

Anti-Federalists think of government’s purpose simply speaking since they are defending or

attacking a unique form of federal government rather than writing a treatise on what government

is and ought to be in the fullest sense.

Within individual states Agrippa speaks of government in a very different manner than

his vision for the union—a notion of government whose purpose is more than the promotion of

commerce and the securing of rights. Whether or not he understands them as means or ends, he

seems to think that religion, morals, and education are a vital enough part of a healthy society

that the governments of the states should take such matters into consideration. As we have seen,

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he thinks the interests of the states are too varied to be unified by means of a powerful federal

government. In order to keep the people happy, “it is necessary that there should be local laws

and institutions; for a people inhabiting various climates will unavoidably have local habits and

different modes of life…It is much easier to adapt the laws to the manners of the people, than to

make manners conform to laws.” For instance, “[m]any circumstances render us an essentially

different people from the inhabitants of the southern states.” As opposed to the southern states,

the importance placed on education and “[a]ttention to religion and good morals is a

distinguishing trait in our character.”852

This “distinguishing trait” is in some way caused by government regulation: Agrippa

seems to have no problem with state governments limiting immigration for the sake of religion,

morals, and education. He clearly sees governmental consideration of such issues as appropriate

and important for the wellbeing of society. With the exception of Rhode Island, “[t]he eastern

states have, by keeping separate from the foreign mixtures, acquired, their present greatness in

the course of the last century and an half, and have preserved their religion and morals. They

have also preserved that manly virtue which is equally fitted for rendering them respectable in

war, and industrious in peace.” Other states—Pennsylvania, for instance—by letting in “all that

would come there” are not the equal in “morals” and “education” of the eastern states, having

grown “at the expense of religion and good morals.”853 When it comes to religion federally,

Agrippa complains that “the framers of this new constitution did not even think it necessary that

the president should believe that there is a God, although they require an oath of him. It would

be easy to shew the propriety of a general declaration upon that subject.”854 Given that Rahe

justifiably highlights ancient republicanism’s use of religious oaths to reveal the difference

between ancient and modern republics, this sentence is particularly striking even if it reflects a

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rare sentiment in Anti-Federalist thought. Needless to say, such statements as those above are

seemingly impossible to reconcile with the modern, scholarly notion of liberalism.

Consider Agrippa’s argument that although “[i]t is impossible for one code of laws to suit

Georgia and Massachusetts,” the Constitution “is…a consolidation of all the states into one large

mass, however diverse the parts may be of which it is to be composed…” He says “[t]he idea of

an uncompounded republick” as large as the United States “all reduced to the same standard of

morals, or habits, and of laws, is in itself an absurdity, and contrary to the whole experience of

mankind.”855 Note that this Anti-Federalist complaint, which is representative of other authors,

that the Constitution will not allow for various laws in accordance with differing morals itself

assumes that law and morality are very much related—that laws reflect morals, at least. This

statement implies that smaller republics, or those republics “compounded” in the appropriate

manner, can be and already are reduced to the same standard of morals, habits, and laws at the

state and local level. In continuing this passage he makes clear that part of the reason this cannot

be done across the states is because, much like other Anti-Federalists, he sees representation to

be impossible on a larger scale than exists within the states. Agrippa is thus not necessarily

denying there is a civic virtue to be cultivated or a common good to be promoted by government,

but he does think that nationally such ends must be limited based on his understanding of

representation and the homogeneity of the individual states.

Agrippa asserts that “[i]t is universally agreed, that the object of every just government is

to render the people happy.”856 He exhorts his readers to seek to “secure the happiness and

freedom of the present and future ages,” and like other Anti-Federalists such as the Impartial

Examiner he frequently refers to happiness (along with but separate from the protection of rights

and economic prosperity) as an end of government.857 Ideally, the federal government would in

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its own, more limited manner “secure…internal happiness, and the blessings and prosperity of all

succeeding generations.”858 He tries to judge whether the new constitution is “consistent with the

happiness of the people and their freedom,”859 and determines that “[u]nhappiness would be the

uniform product” of the new constitution, “for no state can be happy, when the laws contradict

the general habits of the people.”860 Or again, “[t]he idea of promoting the happiness of the

people by opposing all their habits of business, and by subverting the laws to which they are

habituated, appears to me to be at least a mistaken proceeding”861 and “[t]o promote the

happiness of the people it is necessary that there should be local laws” which, presumably, will

have related to habits of living and virtue.862

Agrippa exhorts his readers to “have wisdom and virtue enough to preserve [the

confederation] inviolate.”863 He says that “injustice never can be the basis of good

government”864 and that it is “essentially necessary to the happiness of a free people, that the

constitution of government should be established in principles of truth.”865 Even though Agrippa

thinks that the securing of rights and liberty is a primary end of government, he also seems to

thinks that justice limits individual liberty. He says at one point that the people ought to listen to

“those who have uniformly exerted themselves to establish limited government, and to secure to

individuals all the liberty that is consistent with justice, between man and man.”866 Justice is thus

an end of government that limits individual liberty. On the other hand, when the use of power or

force “is pushed beyond the degree necessary for rendering justice between man and man, it

debases the character of individuals, and renders them less secure in their persons and

property.”867 There is thus less reason to think that Agrippa thinks that certain sacrifices on the

part of individuals are not necessary in order to create a healthy society, or that the common

good is merely the name for a sum of individual self-interests, than might appear from the

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sentence Rahe cites. Agrippa says of his own writings that “[p]ersonal interest was not my

object…a man who owes allegiance to the state is bound…to propose such inquiries as tend to

promote the publick good.”868

Besides referring to habits fitting local laws, in determining what he means by happiness,

“the welfare of the whole” and other terms indicating a common good used above, it is certainly

instructive that his essays are overwhelmingly focused on economic concerns. Further, part of

how government renders the people happy is “by securing their persons and possessions from

wrong”; at least as far as the federal government is concerned he seeks the “kind of government

best adapted to the object of securing our persons and possessions from violence.”869 Yet while

it is true that for Agrippa the happiness and shared goods that the federal government ought to

promote are intimately connected to commerce and the securing of rights, this does not mean

(and nowhere does he say) that happiness is necessarily or exclusively related to commerce and

the securing of rights, especially as it relates to government within the states. In fact, as we have

seen, he gives some indications that much more is involved when it comes to state government

than what he sees as appropriate ends for the “confederation” of states together.

The above is not intended as a definitive assertion concerning Agrippa’s political

philosophy, nor a definitive rebuttal of Paul Rahe’s monumental work, but an example of the

danger of interpreting the participants in the ratification debates without fully confronting their

contexts. In order to prove one’s case about any sort of underlying political philosophy, one

must confront this context head on, and this confrontation entails more in depth commentary on

the relevant texts than the structure of the articles and books making wide sweeping claims in

much of the scholarly literature often allows. In one sense it would be odd to criticize Rahe (or

Pangle) in this respect, because they have done more than many to delve into these texts and

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made exceedingly rich—albeit different—contributions to our understanding; nonetheless the

problem of the complexity of the historical context of the ratification debate remains, and

federalism can obscure our attempts at understanding it. Yet whether one thinks that Agrippa is

contradicting himself or that Rahe is misunderstanding him, Rahe’s use of the text needs to

confront these contextual issues in order to stand firm, as the burden of proof in interpreting any

text as contradictory ought to lie with the interpreter rather than its author.

How then can one understand the Anti-Federalist conception of the public good in a way

that comprehends all their varied statements on the matter? It is clear that, at least for most of

the Anti-Federalists, like nearly all early Americans, they do not think that the government ought

to determine and enforce the ultimate purpose of man, insofar as the government ought not

declare and force allegiance to a particular religion or violate the conscience of the individual.

Nor, obviously, is their public good the strict public good of ancient Sparta. Their understanding

of the consent of the people as the ground of government, the content of their many appeals for a

bill of rights and their language about the role of liberty and rights as the principle and end of

government makes this clear enough. Yet just because their conception of government—

especially and most clearly, federal government—does not include the enforcement of an exact

or total and complete way of life, it is difficult to conclude with certainty that they hold the state

governments to be merely concerned with the material needs of the people or that virtue is

completely subservient to individual liberty.

While the Anti-Federalists often use Lockean language to describe the foundations of

government, these formulations make clear that even in coming together to secure rights,

government must secure justice: that is, government must establish a right relation, or establish

justice, to use a common formulation, “between man and man.” Liberty and the securing of

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rights are a central purpose of government, yet at the level of state and local governments the

people give the government power to order their community, which is to order their relations to

each other, and this ordering necessitates a relationship between virtue and the law. What is

truly good for one is good for all, and the Anti-Federalist notion of the public good refers to the

ways in which the government must care for the shared, nonphysical good of all the people of

each state combined.

What is odd about Storing’s footnote is that in other parts of the same text he seems to

exaggerate the extent of the Anti-Federalist opposition to liberalism, and it is not clear how he

makes his final determination, or why this determination is most clearly made in a long footnote.

His work on the other Federalists as well as his writings on the Anti-Federalist often seem to be a

wide ranging, mixed working out of the writing of the ratification debate that is not yet fully

formed or determined. For instance, the Anti-Federalist warnings of luxury do not seem to be

warnings against a “commercial republic” that the Constitution will establish; the Anti-

Federalists themselves tout the benefits of something akin to commercial republic as opposed to

a martial republic. In fact, the Anti-Federalist complaint generally is often that the Federalists

seek to establish a national government that will potentially deal with much more than

commerce, not that it will set loose an unrestrained acquisitiveness. In these often misinterpreted

statements, the Anti-Federalists, at best, warn of how the particular vices attendant upon

prosperity will lead to the rule of an elite, usually because the Constitution in the Anti-Federalist

view does not tie the federal government closely enough to the people. It ought to be noted that

this argument seems contradictory, since a government tied closely to a people plagued by the

vice of luxury would seem to be doomed to be deeply affected by this vice according to the Anti-

Federalist logic of representation—but the Anti-Federalists are very consistent in evading any

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argument that would blame the people. The Federalists, on the contrary, see the need for the

Constitution arising in part to counter the attendant vices of a regime based on consent, some of

which are the vices of the people related to economic injustice that they think have plunged the

flawed governments of the states into crisis.

What is clear is that the Anti-Federalists do not seem to desire a unitary government over

all the states that goes “all the way down,” establishing a truly architectonic or intrinsic order of

a nation. They are suspicious of national purposes considered as a unitary public good that

draws the nation together causally. They do not think that the states or the people should be

considered as true parts of national whole.

The Anti-Federalists underlying political philosophy is obscured by the fact that the

debate is focused on a unique form of federal government and is not about government simply

speaking. Even the Federal Farmer’s Lockean statement above about the people’s enjoyment of

the fruits of their labor is not a definitive statement about the end of government. As he says

elsewhere, “[t]he organization of the government presented proves, that we cannot form a

general government in which all power can be safely lodged; and a little attention to the parts of

the one proposed will make it appear very evident, that all the powers proposed to be lodged in

it, will not be then well deposited, either for the purposes of government, or the preservation of

liberty.”870 Given the enormous depth and breadth of the “purposes of government” at the state

level in the 1780s—a depth and breadth which Federal Farmer and all the other Anti-Federalists

seem to support—the Anti-Federalist position is not entirely clear. A more thorough

investigation of their deepest understanding of the public good, besides looking to more Anti-

Federalist writings during ratification, would need to look closely at what those who became

Anti-Federalists thought of the purpose of local and state government outside of the ratification

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debate: an examination of the stance of the parties they belonged to (the Constitutionalist party in

Pennsylvania, for instance), and the state constitutions and local laws of the states in theory and

practice. Their rejection of the Constitution alone does not give us enough to go on; although

they speak about the public good more frequently than the Federalists, beneath the surface of

their words the substance of their thought is more ambiguous. In the midst of their talk of

jealously guarding the freedom of the people, the Anti-Federalists do not make the reason why or

how they also seem to hold that the states ought to pursue the public good in much more direct

manner than the federal government. Their reluctance to accept national union does not

necessarily reject the notion of the public good at the state and local level, but considered

alongside their notion of representation and their focus on rights and liberty, Storing’s judgment

seems plausible—but not definitive.

Federalists Could Diamond’s statement that the meaning of happiness or justice as understood by Publius

“seems to consist primarily in physical preservation from external and internal danger and in the

comforts afforded by a commercial society” be applied to the thick slice of the ratification debate

we have considered above?871 Chapters 7 and 9 present plenty of evidence that happiness and

justice for the other Federalists manifestly do not consist primarily in the physical preservation

from danger and the comforts afforded by commercial society. It is difficult to conceive of how

one could explain either of those chapters in Diamond’s terms. The Federalists provide us with

far more evidence than the Anti-Federalists in their explanations of the rationale for the

Constitution. Even if their positive arguments are often obscured within their responses to

common Anti-Federalist objections, they make a positive case that reveals far more of an

underlying understanding of the purpose of government writ large than one finds in the Anti-

Federalist authors considered here.

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Although the Federalists are somewhat less likely to give philosophic, rights based

accounts of the foundations of human governance than the Anti-Federalists, they too speak of the

end of government as the protection of rights and liberty, even if they oppose a federal bill of

rights. It is clear that the Federalists do not think that the federal government ought to determine,

promote, and enforce a total and complete way of life based on a set and specific understanding

of the last and highest end of man. They manifestly do not seek to establish a federal

government that attempts to enforce specific religious beliefs or directly act to make men holy;

they manifestly do not hold up ancient Sparta as the sort of model for what they are trying to

establish either. The nation of United States they seek to establish is not an ancient Greek polis,

nor a high medieval Church-State conglomeration. The public good does not consist in an

attempt to create a specific kind of spiritual community, nor is it found in a definitive and

specific way of life in which sacrifice to and for the polis is understood to be the ultimate

fulfillment of human nature. Yet neither does a contractual relationship among autonomous

individuals seeking individual ends that are politically and morally neutral make an appearance

in their thought; they repeatedly and explicitly deny that liberty is the absent of constraint and

that the might of the majority makes right. In so doing they repeatedly and explicitly point to a

unitary, irreducible notion of the public good that, while remaining in many ways open as to

man’s last end, encourages deliberation about what is prudentially good for the political life of

the people of the states united.

As we have seen throughout the previous chapters, the Federalists frequently refer to

more than the comfortable self-preservation and the protection of property as an end of

government. One cannot understand their support of the Constitution without understanding

their view of representation requiring good and wise leaders in a structure that promotes actual

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deliberation about the content of the public good over and against the immoral misuse of liberty

on the part of the people and the states. One cannot understand their support of the Constitution

without understanding their view that the authority of a supreme body of law over and against

the states was needed by means of a government that united the people and the states into one

body sharing in a unitary public good. Finally, one cannot understand their support of the

Constitution without understanding their view that the union was in some way perfective of the

people and the states.

One could best describe the Federalist notion of the public good by calling it open ended

as to the final end of man or the highest of human questions, even if they hint that it points

towards theism or a general Christianity, with a rough and ready acknowledgement of the

traditional western notion of virtues, especially as it relates to political life, in addition to a

special emphasis on those less traditional virtues that are particularly important in a popular form

of government with free and varied commerce, such as industry and frugality. To maintain,

politically and legally speaking, an open ended notion of what, finally, the ultimate good for man

consists in and what is necessary for him to achieve it does not necessarily foreclose the

existence or possibility of the public good. As Aristotle noted, what it means to be a good man

and what it means to be a good citizen are two different things, except in the perfect regime,

which would perfectly understand what it means to be a good human being. If a government

does not legislate with a detailed and total agreed upon understanding as to what the heights of

human flourishing consist in, it does not necessarily thereby deny that human flourishing consists

in more than providing for material need, or fail to provide support for non-material flourishing,

or prohibit the citizenry from ordering their laws in one direction as opposed to another. There is

plenty of gradation short of perfect knowledge and agreement within which, in a government

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based on consent, agreement could be reached concerning much more than the maximization of

individual liberty.

The Federalists never deny a relation between virtue and what they considered the best

possible form of human governance to be. In fact, they suggest that they think that the best

possible government in America will require and even promote virtue, albeit in a limited way.

One can only define and therefore legislate about virtue to the extent that one has an agreed upon

answer to the question of what man’s purpose is, as virtue consists in the various habits or ways

of being ordered to achieving that end. Even those with widely varying understanding of what

human beings highest purpose is may, of course, agree on much as regards human behavior (the

importance of honest and responsibility, etc.), but the closer the agreement as one move towards

the higher perceived purpose or purposes of human action, the more possible it is to agree on

laws regarding human behavior. The Federalist understanding of virtue’s relation to government

is limited insofar as they thought American government ought not fully define and enforce what

man’s end finally consists in. It is also limited insofar as government is based on consent, but for

the Federalists this is more complicated and in some ways less limiting a condition than it is for

the Anti-Federalists.

For example, the Constitution says that “no religious test shall ever be required as a

qualification to any office” and the Federalists seem to universally agree. Oliver Ellsworth’s

argument against a religious test is revelatory of the peculiar, open ended conception of the

public good in early America. He says that “[t]he business of civil government is to protect the

citizen in his rights, to defend the community from hostile powers, and to promote the general

welfare. Civil government has no business to meddle with the private opinions of the people.”

One’s opinion about man’s highest and last end, in other words, is not to be legislated by

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government; he even refers to this as a mere “private” opinion. In this instance, as in so many

others, one cannot rip this quotation out of its context in the reason of an argument and the

historical reality in which Ellsworth is speaking.

He alludes to four reasons for his position. First, he does not say that he has an ultimate

right to think whatever he wishes about God, but that when it comes to this sort of speculative or

contemplative truth about God and man’s highest last end, “I am accountable, not to man, but to

God, for the religious opinions which I embrace, and the manner in which I worship the supreme

being.” The ultimate authority in opinions about God, in other words, is God, and presumably

all are accountable to God—but government is not the judge of such matter. As Tench Coxe said

of the prohibition against religious tests: “The convention has the honor of proposing the first

public act, by which any nation has ever divested itself of a power, every exercise of which is a

trespass on the Majesty of Heaven.”872 Moreover, if mankind espoused religious liberty, Ellsworth

says that “persecution, the bane of truth and nurse of error, with her bloody axe and flaming

hand, would never have turned so great a part of the world into a field of blood.”873 Thus,

second, if government seeks to enforce a specific conception of the final purpose of human

beings in relation to God by persecuting those who disagree, the truth itself inevitably becomes a

casualty. Also, third, the power to proclaim man’s ultimate purpose is used by fallen human

beings in such a way that violence results, seemingly in part because people disagree about what

the final end of man is. Given this disagreement, and given the dignity and freedom of the

individual and the human mind that is spoken of throughout the ratification debates, human

beings rightly rebel vehemently against being forced to accept an account of the highest of truths.

Fourth, “[t]est laws are useless and ineffectual” as well as being “unjust and tyrannical.”874 That

is, they do not guarantee that government officials will be God fearing men; rather, “[a] test-law

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is the parent of hypocrisy” as unjust men will merely lie or stretch the truth in order to obtain

office.875 None of the reasons Ellsworth gives are similar to the autonomous, self-determining

individual of scholarly mythology.

Ellsworth is not speaking of a solely rights based republic; as is usual throughout the

ratification debates, he refers above to the promotion of general welfare as an end of government

in addition to the protection of rights and the defense against “hostile powers.” And it is no

doubt this promotion of the general welfare that leads him to qualify his support of religious

liberty in a tellingly matter of fact manner, as if it is nearly self-evident:

But while I assert the right of religious liberty; I would not deny that the civil power has a

right, in some cases, to interfere in matters of religion. It has a right to prohibit and

punish gross immoralities and impieties; because the open practice of these is of evil

example and public detriment. For this reason, I heartily approve of our laws against

drunkenness, profane swearing, blasphemy, and professed atheism.876

Of course, this is not a controversial statement for him to make; rather, it is a reassurance, and a

defense against knee jerk objections that he sought to cut off before they could be made in

response. No less than the Anti-Federalists, the Federalists seem to assume the propriety of most

laws related to morality that were already in existence at the time of the ratification debates.

Ellsworth explicitly relates here how the law supports morality or virtue by means of punishing

vice. It seems that Ellsworth think that “drunkenness, profane swearing, blasphemy, and

professed atheism” are universally acknowledged to be “gross immoralities and impieties” and

that everyone knows that “open practice of these is of evil example and public detriment.” If this

is merely a blatant exception to a general rule among the Federalists given Diamond’s

understanding, it is a stunning one: one would need to make an extensive argument proving it to

be so. Otherwise, in context, it seems to be yet another piece of evidence that both sides in the

debate assumed that such law was perfectly appropriate to the ends of the state and local

governments, and these ends were not morally neutral. Oddly, such revealing examples in

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Federalist thought are rarely dealt with, if at all, in most scholarly literature investigating the

period, perhaps because they are considered mere anomalies. Texts like this do not seem

anomalous to me, but deeply revelatory of what was generally and uncontroversially assumed to

constitute a good life and was therefore part of the purpose of government.

As we have seen, in order to achieve the public good, the repeated insistence on the part

of the Federalists is both that a) the people are already virtuous enough to initiate the popular

form of government of the Constitution and b) they must remain so if American government is to

survive. This insistence ought to demolish any serious claim that the Federalists thought the

Constitution did not require virtue. These statements are treated as boilerplate statements only if

one argues that the central thrust of Federalist thought was merely checks and balances, and the

direction of self-interest against self-interest such that interests were neutralized and defused

enough to allow for individual self-preservation and bodily comfort. Perhaps the most common

and deeply flawed account of Federalist thought is just this sort of narrative, in which

constitutional design is said to take the place of virtue and the public good is considered a mere

aggregate of individual private goods. Any close study of the ratification debates ought to reveal

such a narrative for what it is: a grossly anachronistic misreading of Federalist thought. At least,

an argument that the Federalists did not take virtue or the public good into account ought to

directly confront the statements of every major Federalist that the Constitution was dependent on

virtue.

Storing makes a curious statement when he says that James “Wilson, for example, seems

willingly to trust in the vigor, good sense, and patriotism of the American people, without

troubling himself very much to the extent to which the trust is justified.”877 This is an

anachronistic objection in the sense that the Anti-Federalists manifestly and uniformly thought

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that James Wilson and the Federalists did not trust in the people enough; Wilson was particularly

an object of scorn for this very reason. He was “strongly tainted with the spirit of high

aristocracy” and “despising what he calls the inferior order of the people,” it was said that

“[p]opular liberty and popular assemblies offer to his exalted imagination an idea of meanness

and contemptibility which he hardly seeks to conceal,” as one among many other Anti-

Federalists put it. “Men of sublime minds, he conceives, were born a different race from the rest

of the sons of men. To them, and them only, he imagines, high heaven intended to commit the

reins of earthly government; the remaining part of mankind he sees below at an immense

distance; they, he thinks, were born to serve, to administer food to the ambition of their

superiors, and become the footstool of their power.”878 The reason for such strong reactions goes

beyond any quirks of Wilson’s personality; as we have seen, the Federalists routinely proposed

that the people could not always be trusted, and this was very much a part of their explanation

for the need for the Constitution itself. The Anti-Federalists, on the other hand, did not question

their own near total reliance on the people, and they certainly never troubled themselves about

anyone else relying on them too much. Yet, although mostly indirectly under the Constitution as

it was originally proposed, the people are to elect the government officials who will govern. The

implication of the Federalist argument is that if the rulers are not virtuous or forced to act as if

they were, things will go poorly.

Virtue, Constitutional Design, and Representation

The Federalists relate representation to the public good in at least three ways. First, they

thought federal lawmakers would more likely possess better information and knowledge, talent,

virtue, and wisdom, and they explicitly said so; such men were more likely to seek out and

accomplish what would better achieve the public good. The federal system would act as a filter,

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drawing upwards a better sort of individual into national lawmaking and administration of the

federal government.879 Second, the mere existence of a strong central government would begin

to force those who worked within it towards real deliberation concerning the public good. The

existence of such a structure with real power would open the door to the possibility of providing

for what was truly common by the very act of putting men in offices and roles that were ordered

to the good of the entire nation. Third, the particular designs of the Constitution itself—from

bicameralism to large district elections—would help alternatively push and pull the politicians

selected towards achieving the public good.

Let us take up the least obvious example: the Federalists thought that better constitutional

design would assist in encouraging government officials to act virtuously and deliberate for the

sake of the public good. There is no need to posit a dichotomy between an understanding of

constitutional structure that requires and promotes virtue and is ordered towards the public good

on the one hand and an understanding that the constitutional structure ought to take into account

that less than virtuous human beings will be both ruled and rulers on the other. These are far not

mutually exclusive conceptions. The Federalists thought both were true. In common sense

understanding, no less than in practical Christian theology, for instance, one might include

avoiding the “occasion of sin” as part of the path to virtue: to take an obvious example, if an

alcoholic is trying not to drink, he should avoid spending time in a crowded bar on a Friday

night. Would it be fair to him to maintain that on account of his avoiding the bar we can

conclude that he holds virtue of no account because he does not depend upon its exercise?

Imagine a teacher who tells his class before their exam that he is leaving for the entire class

period, and noticeably leaves the answer key on his desk as he walks out the door. Is this a

salutary reliance on virtue? In real life, of course, teachers take measures to prevent cheating.

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Does this mean they hold virtue of no account? If parents operate on the “trust, but verify”

principle by ensuring that the websites their children visit online are monitored, are they taking a

morally neutral stance that is unconcerned with virtue? Is not precisely on account of the fact

that virtue is desired in these cases the reason that auxiliary measures are taken to encourage

virtuous actions, if not habits? Does not the very need for criminal law assume a lack of virtue in

human beings? In part, the Federalists think that the constitutional structure ought to help the

people and those in governance “avoid the near occasion of sin.” It would be odd to categorize

the Federalists complex and substantial efforts to prevent political vice as somehow unrelated to

political virtue, and yet that is often how the Federalists are interpreted.

For instance, as we have seen, the legislative supremacy within the unicameral system of

Pennsylvania was recognized as an evil by Wilson and other members of his party as well as by

most Federalists. This evil was not to be replicated in the federal Constitution: “In order, sir, to

give permanency, stability, and security to any government, I conceive it of essential importance,

that its legislature should be restrained; that there should not only be what we call a passive, but

an active power over it; for of all kinds of despotism, this is the most dreadful and the most

difficult to be corrected. With how much contempt have we seen the authority of the people

treated by the legislature of this state—and how often have we seen it making laws in one

session, that have been repealed the next, either on account of the fluctuation of party or their

own impropriety.” This is in many ways an astonishing claim, coming as it did little more than a

decade after the end of the Revolution. For Wilson, the most “dreadful and the most difficult

despotism” was that of an excessively democratic legislature, and it was essential that such

bodies—which were in Anti-Federalist parlance most responsible to the people—be restrained.

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Such claims were part of the reason Wilson was so often attacked and mocked as an arrogant

aristocrat by the Anti-Federalists. Yet it reflects the prevailing sentiment of the Federalists.

Wilson says that such despotism as existed in unicameral Pennsylvania “could not have

been the case in a compound legislature; it is therefore proper to have efficient restraints upon

the legislative body.”880 Wilson draws out the reasoning for the way in which a “compound

legislature” will restrain such “despotism” in terms that transcend a mere “check” or balance,”

based on a general understanding of human nature. “I believe, sir, that the observation which I

am now going to make will apply to mankind in every situation; they will act with more caution,

and perhaps more integrity, if their proceedings are to be under the inspection and control of

another, than when they are not.”881 Unlike other accounts of bicameralism considered in the

last chapter, Wilson is not relying here on the goodness of the legislators directly; the principle

does not depend on a higher virtue in one body or the other, and yet it induces virtuous action

and good policy. “Though two bodies may not possess more wisdom or patriotism than what

may be found in a single body, yet they will necessarily introduce a greater degree of

precision.”882 As with Gyges and his ring, without the “inspection and control” of other human

beings, people will proceed in a much different manner than they would otherwise. In the

proposed Constitution, the Senate and House cannot make new laws without each other, and thus

“the proceedings of Congress will be conducted with a degree of circumspection not common in

single bodies, where nothing more is necessary to be done, than to carry the business through

amongst themselves, whether it be right or wrong. In compound legislatures, every object must

be submitted to a distinct body, not influenced by the arguments or warped by the prejudices of

the other.”

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Wilson is not rendering virtue or wisdom of no account, but helping to guide men to act

with more reason and virtue than they would otherwise, helping to ensure they take “right or

wrong” into account through a more rigorous deliberative process. “As there will be more

circumspection in forming the laws, so there will be more stability in the laws when made.

Indeed one is the consequence of the other; for what has been well considered, and founded in

good sense, will, in practice, be useful and salutary, and of consequence will not be liable to be

soon repealed.” Wilson is speaking about a particular way to “take the most effectual

precautions for keeping [legislators] virtuous”883 and truly deliberative which does not somehow

prescind from a reliance on virtue, but based on a principle of human nature known and used by

religious and political authority in western tradition since time immemorial, even if not in this

specific context. Human being are more apt to ignore what they regard to be right and good in

favor of whatever they happen to desire if given the opportunity to so act without consequence; if

their actions are watched, and they are potentially held accountable for wrong or evil actions and

they are more apt to do what they deem is right and good. This goes to the heart of what

criminal law is, based as it is upon the reality that human beings will not always do what is right.

As we have seen, the focus of the Federalist argument for the representational system of the

Constitution is to help ensure that the best sort of men are chosen, and then to help ensure that

they create good—and therefore stable—law. Similarly, the branches are to check each other,

not merely to cancel out interests, but to ensure that rulers act virtuously, deliberate well, and

make decisions for the sake of the true good of the whole.

Licentiousness and Commerce

The problem was not merely legislative supremacy, unicameral or otherwise; rather,

legislative supremacy was a problem because of the people. Gordon Wood says of the 1780s

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that “[a]s the supposedly representative legislatures drifted away from the people, men more and

more spoke of the legislators’ being just other kinds of rulers, liable to the same temptations and

abuses rulers through history had shown—all of which made comprehensible the intensifying

desire to make the representatives more dependent on the opinion of their constituents and

increasing invocations of ‘the collective body of the people’ to set against the legislatures.” This

was, in fact, the Anti-Federalist rallying cry, and we have seen at length how this idea, which left

the morality of the people unquestioned, undergirded their theory of representation. It was not

the response of the Federalists. Wood continues:

Yet there were some Americans who perceived that the problems of the 1780s were not

due to the drifting and unrepresentative character of the legislatures, but were rather due

to the legislatures’ very representativeness…The evils and vices of state legislation, said

James Madison, were not based, as some said, on the temporary deceit of a few designing

men who were perverting their representative authority for their own selfish ends. Such

vices actually sprang from the emergent nature of American society, and therefore

brought “into question the fundamental principle of republican Government, that the

majority who rule in such governments are the safest Guardians both of public Good and

private rights.” “According to Republican Theory,” said James Madison, ‘Right and

power being both vested in the majority, are held to be synonymous’”884

Yet it was clear to Madison and many other Federalists that they were not, in fact, synonymous,

and they did not hide their view behind the closed doors in Philadelphia; throughout the

ratification debates they spoke it out loud, in grave and serious tones. Despite prevailing

interpretations of key pieces of Federalist writings, central pieces of evidence such as Federalist

10 do not merely speak about national defense, foreign affairs, and “external” function of

government. Federalist 10 is concerned with the potentially fatal flaw at the heart of republican

government, in which the will of the majority operates with unconstrained liberty to do as it

wishes. As Wood says, for the Federalists, “[t]he people, it seemed, were as capable of

despotism as any prince; public liberty was not guarantee after all of private liberty.”885 Thus, as

Storing says, “[t]he characteristic problem of republican government is, in the words of Publius,

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majority faction,” which “is not the traditional problem of popular licentiousness leading to a

resistance of law and anarchy. Majority faction is the particular danger of popular government

precisely because under popular government majorities can tyrannize under cover of law.”886

This problem, of course, is far worse than the traditional one, since in this case the licentious are

officially licensed, becoming the ruling principle of government. As Wood says, “Americans

thus experienced in the 1780s not merely a crisis of authority—licentiousness leading to

anarchy—which was a comprehensible abuse of republican liberty, but also a serious shattering

of older ways of examining politics and a fundamental questioning of majority rule that

threatened to shake the foundations of their republican experiment.”887 In fact, it was not

licentiousness leading to anarchy that was the problem, but licentiousness leading to legally

sanctioned despotism in overly democratic states. For the Federalists, the Constitution is not

merely an addition to the government of the states for the sake of limited “external” functions for

the Federalists, but a vital “internal” correction to a threat to the very existence of republic

government.

While the goal of the Federalist conception of representation was to keep the rulers

virtuous and deliberative, they also sought to help ensure that lawmakers would check majority

faction. As Storing says of the Federalist understanding:

One of the characteristics of constitutional government is that it restrains the people as

well as the government. If a constitutional government is strong it is, in principle and

practice, independent of immediate popular impulses. This describes precisely the

government under the new Constitution...The Constitution provides a government with

the vigor, competence, and independence that can resist popular licentiousness and secure

individual liberty.”888

The central example of the problem of majority rule for the Federalists related to commercial or

financial policies that even many Anti-Federalists deemed immoral, unjust, and politically

disastrous. Tench Coxe says after a typical Federalist summary that: “This then is the condition

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of our country, in regard to private business, to the utter subversion of common honesty, and the

rights of property. ’Tis a posture of affairs, that would corrupt the angels of light, and the friends

of virtue, and our country must shudder at the consequences of these alarming facts.”889 The

Federalist saw the Constitution in large part as a sensible reaction to an economic political crisis.

It is one of the ironies of historiography that the Federalists are often presented as the

creators of a system in which morality is purposefully disconnected from economics by means of

the creation of an appetitive, amoral commercial republic that they somehow unleashed and

encouraged by means of the Constitution. The Federalists actual words and historical actions

reveal their hope that the Constitution would solve what they regarded as very real moral and

political crisis. The solution is written straight into the Constitution in no uncertain terms. As

Bessette says:

Reflecting their lack of confidence in the ability of the relatively small democracies of the

states to withstand the demands of unjust majorities, the framers wrote into the new

national Constitution major prohibitions on state power. Most important, the

Constitution prohibits states from coining money, emitting bills of credit, making

anything but gold or silver a tender in payment of debts, or passing any laws impairing

the obligation of contracts. These are sweeping prohibitions on the whole range of

irresponsible state action that had culminated in the paper money “rage” of 1785-86.

None of these prohibitions, however, is also placed against the new national government,

although other restrictions—like no bills of attainder and no ex post facto law—are

applied to both states and nation. Indeed, the Constitution specifically vests Congress

with authority to borrow money on the credit of the government, to coin money, and to

pass bankruptcy laws.

Thus, through express prohibitions on the states and explicit grants to Congress, the

framers raised to the national level the decisive authority over currency and contracts.890

Although the Federalists understood that most laws dealing directly with virtue in the traditional

sense (via the criminal law, education, and religion) would be made and enforced at the state and

local level, one cannot understand Federalist thought without meditating upon the fact that they

removed all serious powers related to the one area in which they had the greatest moral and

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political concern—laws and policy concerning commerce and finance—out of state hands and

gave that power to the federal government. As Bessette points out, they did not merely prohibit

specific activities on the part of the states, but they gave the near entirety of those powers over to

Congress.

The claim that Anti-Federalists were against the Constitution on account of its potential

to lead to what many intellectuals over the last century believe are the post-industrial revolution

excesses of a commercial republic gone wrong is an anachronistic fallacy. For the Federalists,

economic matters were not spoken of as if they were divorced from morality or politics, but

rather as if they were subsumed by them. The Federalists sought to establish a national

government that would regulate what they repeatedly refer to as the explicitly moral evils of

commercial excess or economic injustice of their era by taking fiscal policy writ large away from

the states and thus away from the unstable rule of tyrannical majorities looking out for their own

interests over and above the demands of justice and the public good. The Constitution would

establish justice in commercial dealings, extending a stable rule of law over the commerce of all

the states with an eye to what was good for the whole of the states united.

Union

As Brutus noted, the fact that “one of the great ends of the constitution is, ‘to establish

justice’” assumes that “this cannot be done under the existing governments of the states.”891 As

should be abundantly clear, this was indeed the Federalist understanding. As Storing says, “the

means, the Federalists argued again and again, must be proportioned to the end, and the end in

the case of the general government cannot be limited in advance.”892 In order to establish justice,

however, a lawful authority is needed to enforce it, and thus the federal government of the

Constitution had the full powers of government, emanating in its origins from the people

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themselves and extending over and against state laws and even the state constitutions. The Anti-

Federalists “charged that the Federalists were more or less deliberately using an argument about

means to enlarge the ends of government, shifting their gaze from individual liberty to visions of

national empire and glory.”893 In other words, the Anti-Federalists thought that giving the federal

government full “internal” powers of government, however hedged in by enumeration,

necessarily expanded the potential purposes of that government. Yet the most immediate result

of the strong aspects of the federal government was not an expansion towards purposes of

“national empire and glory” in the sense of international relations, but an expansion of the

internal purposes and power of the federal government. The Federalists present this unification

of the states into one empire, as it were, as a glorious development.

Both sides realized, if sometimes only vaguely, that the powers and structure of the

Constitution would create a unity among the states that was different in kind from the unity of

the states under the Articles, even if they ostensibly shared many of the same abstract ends (i.e.,

union, justice, tranquility, etc.). The more perfect union would be attained precisely because of

the total power the Constitution granted the new federal government over the states; even if the

federal government would remain “partly federal,” the fact that it was even “partly national”

meant that it was an essentially different kind of government than that of the Articles. The

Federalists repeatedly praise this vital aspect of the Constitution as its strength and glory, while

the Anti-Federalists consistently attack it, albeit sometimes indirectly, as a central and fatal flaw.

As Storing points out, “the provision for ratifying the Constitution rested, in the main, on the

contrary assumption [from that of the Anti-Federalists] that the American states are not several

political wholes, associated together according to their several wills and for the sake of their

several interests, but are, and always were from the moment of their separation from the King of

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England, parts of one whole.”894 Whereas this point might have been disputed under the Articles

as a theoretical matter, the Anti-Federalists realized that the states would indeed become part of

one whole under the Constitution.

The Federalists, especially Wilson and Dickinson, plainly announce the new reality: the

federal government must, within its sphere, take absolute precedence over the states for the good

of the whole; their arguments rely on the fact that the states will be transformed via the unitary

government of the Constitution into parts, just as individuals become parts of a whole when they

give up some of their liberty and consent to be ruled. In both cases, the good of the whole is

superior and trumps that of the states or the individuals, but the states and the individuals do not

thereby disappear. On the contrary, they are made whole and healthy, and in some sense

perfected as part of the whole, receiving more good than they would have otherwise. Whereas

the Anti-Federalists claim that the national government could and should serve the good of the

states instrumentally, Wilson says that by the states submitting to the government of the union “I

think we may promise security, stability, and tranquility to the governments of the different

states. They will not be exposed to the danger of competition on questions of territory or any

other that have heretofore disturbed them.”895

As Pangle notes of Anti-Federalists, in some sense “[t]he security of liberty does require

the subordination (not, in the usual case, ‘sacrifice’) of individual interest to common good.”

Both sides do speak of sacrifice, yet the totality of their remarks on the matter reveals that they

think that ultimately the public good is shared by the individual to whom it is common. John

Dickinson’s analogy of the political body to the individual human body—which, as Wood notes,

is common in writings of the time—reveals an understanding of the relation of individuals and

states to the overarching regime that underlies and overarches the sacrifices sometimes required

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of the parts to the whole. The entire thrust of the analogy of the body is that each part ultimately

finds its good in accepting the overall order under the “concentered” head or rule of law.

Certainly, for the Federalists, the analogy breaks down when it comes to political life in that the

parts must consent to such a rule, and the parts retain no small measure of liberty and sovereignty

even when they give this consent—but this does not necessarily contradict the fact that the good

of the parts, or the states and the people of them, is achieved via the constitutional order. Both

Wilson and Dickinson, as we have seen in chapter 9, suggest that the new system of government

will even provide the grounds for and point towards good religious practice and man’s ultimate

end.

The Public Good The preamble of the Constitution says the Constitution exists to “form a more perfect Union,

establish Justice, insure domestic Tranquility, provide for the common defense, promote the

general Welfare, and secure the Blessings of Liberty.” Leaving aside whatever the blessings of

liberty might be, it is clear enough that union, justice, domestic tranquility (i.e., peace) and the

general welfare (public good) are all irreducible public goods that are only good to one insofar as

they are good to others; the common defense is also clearly a public good that is good to many at

the same time while remaining itself. Over the course of the previous pages we have touched

upon the various ways in which the Federalists argue the Constitution will achieve these ends

through the federal government it establishes, although perhaps it is not yet clear if these public

goods are treated as instrumental to the good of the individual or not. It is difficult to conceive

of how each of these public goods could be considered simply instrumental to individual liberty,

although it is easy to understand how they are good for individuals insofar as they are possessed

in common, and it is easy to see how participating in them would bring about individual

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happiness. We have seen examples throughout the previous chapters. There is one aspect,

however, of the public good that has been neglected.

How, exactly, does the individual participate in the public good? In other words, how

will we know if the public good is considered instrumental to the individual good, or if the

individual good is considered instrumental to the public good? Recall that in chapter 1, I noted

that as one moves through the spectrum of possible meanings signified by a common good

towards a more perfect common good, the less bodily that good becomes, and the more it seems

to pertain to the rational nature of human beings. It is more perfect because it remains what it is

while being shared by many. In fact, it increases, rather than diminishes, as it is shared, and yet

it does not exist “out there” in the abstract ether, but within the individuals that share it.

That by which human beings participate in these more perfect common goods, in our

case, these public goods, is by means of their rational nature. As we have seen, the Federalists

are consistently pointing to the rule of reason in human life. It is this reason which allows for the

sort of community that strives for the public good—the specifically political community. The

ratification debate itself furnishes a preeminent example in the annals of mankind of just such a

participation in the public good, if we think that participation in rational argument about the

order of the political community could be considered good. In the traditional understanding of

citizenship, it was just this sort of participation that made one truly a citizen; further, the good

order of the community is itself a public good. Consider Tench Coxe’s words addressed to the

New York Convention, expressing thoughts that, throughout the course of the debate, become

near routine exhortations and admonitions by both sides, often made before or after giving the

substance of their argument:

By the permission of divine providence, and from that large proportion of freedom which

has been dispensed to the United States, your honorable body is very soon to deliberate

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on the nature and consequences of the proposed fœderal constitution. The performance of

a duty such as this is the most dignified temporal act of human nature. The temper and

dispositions, therefore, with which it should be undertaken, ought to be as pure as those

with which a pious man would approach the temple of the Deity. Moderation, candor,

patience, mutual deference, and a kind conciliating spirit should suggest and govern

every thought, word and deed.896

Tench Coxe is probably the least known of the Federalists considered here, perhaps in part

because his arguments are not as meaty as his peers, and yet this makes his remarks all the more

significant. Centinel was no philosopher either, and no one would accuse him of exhibiting a

kind, conciliating spirit in his essays—which is why his pro forma language is worth paying

attention to as well. He calls “good government, the greatest earthly blessing”897 and says “[t]he

formation of a good government, is the greatest effort of human wisdom, actuated by

disinterested patriotism.”898 And his remarks are typical. The act of political participation is

exalted, such that when deciding on the very framework of government one is discharging a

“duty” that “is the most dignified temporal act of human nature.” The sort of virtues Coxe

proposes as appropriate are both reasonable and communal. They are reasonable in that they

suggest calming the passions will allow for clarity of thought; they are communal in the sense

that they are meant to assist deliberation about what is truly good between fellow citizens. The

debate over the Constitution is a debate about whether or not there is a public good of the states

united and, if there is, how that good ought to be sought; participation in that debate over the

public good is itself a public good—an act of citizenship of the highest order.

A common good is most obviously and simply understood as a good that is good for

many. It remains good even as it is participated in or attained by multiple people. The public

good most obviously and simply understood refers to something that is good for all the people of

a political body and remains the same or undiminished as a good while being good for all. In

order to argue about what is ultimately good for all the people together, one must have some idea

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as to what is good for human beings simply speaking. Substantial notions of the common or

public good relate to a shared acknowledgement about what the purpose of human life is, and

what habits or virtues help encourage and bring that sort of life to fruition.

Both Anti-Federalists and Federalists suggest that, at the state and local level, through

laws relating to religion, education, and the crime, government in America will deal most

directly with matters related to these habits, or virtue and vice. In other words, the purposes of

government universally understand to be consonant with a substantial understanding of

irreducible public goods relating to inculcating a certain way of life above others are most likely

in the American system to be enforced at the local level. A sign of this is that even today, in

many parts of the country, blue laws are still in effect. Of course, neither Anti-Federalist nor

Federalist condemn these sorts of laws; in fact, whenever something like them comes come up,

they are usually praised or assumed in passing. What both sides explicitly eschew in the debate

is the idea that the government should take a stance as to which denomination of Christianity, or

even which religion more generally, at least at the federal level, best leads to man’s highest end.

They indicate that this is consonant with Christianity itself. James Wilson and John Dickinson

see the aims of the federal government as at least pointing towards and harmonious with religion.

Dickinson asks whether any government could be “more conformed to the nature and

understanding, to the best and the last end of man?”899 and Wilson sees “liberty, virtue, and

religion go hand in hand, harmoniously, protecting, enlivening, and exalting all!”

Union, justice, tranquility or peace, and the general welfare are all explicitly brought up

throughout the ratification debate as ends of the federal government that serve as public goods

for the entirety of the nation, both to the people and the states, and they are not merely treated as

instrumental goods any more than they are in the Constitution’s preamble. Of course, these must

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be good for each individual participating in them, otherwise they would not be common or

public. The fact that “national justice,” say, would be enforced by the federal government and

brought about through federal commercial regulation would be good for the states and the

individuals who made them up. In this sense, justice is “instrumental” to the individual’s

happiness insofar as that happiness arises from participating in justice as a public good. Yet

justice as a public good is not merely instrumental to individual liberty, but was referred to

repeatedly as if it was a good in itself leading to peace or tranquility—another good in itself.

The Federalist understanding, as we have seen, argued the Constitution would provide

better rulers in a structure that would encourage right rule, empowering a government with

authority to supersede the states precisely on the matters in which licentious majorities were

threatening the foundations of republican government through the legislative supremacy of many

of the state governments. The foundation upon which this structure was built, however, was the

unitary government the Constitution formed that would by its very structure transform the states

and the people of them into parts of one greater whole. Taken as a whole, the Federalist

understanding of representation, their worry about morality and lawlessness, and their strong

conception of union present a notion of authority in democratic or republican governance that is

consonant with the notion of the public good. While the Anti-Federalists sought to preserve the

“individual rights” of the states by keeping the federal government limited to instrumental ends,

the Federalists did not. The public good, for the Federalists, consists in both the order of the

Constitution itself and in the ends which it seeks to establish, and these ends subsumed any

notion of the individual or the states as absolute sovereigns unto themselves. At the same time, it

expanded the dignity and meaning of citizenship for the individual and the government of the

states by making them part of a greater whole.

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In the Federalist understanding, however, to a large degree the ends of government

remain open insofar as the government is ultimately based on the consent of the people. While it

is certainly the case that they claim the Constitution exists for limited purposes, they never close

these purposes by restricting the power of the federal government as it pertains to them. Nor are

these purposes very specific. The Anti-Federalists seem justified in their worry that the Federal

government has ample leeway to seek great and glorious projects. Moreover, the federal

government has ample leeway to deal directly with matters of virtue and justice between man

and man and as they relate to the good of the whole in various ways. Subsequent history reveals

this to be the case. The Constitution is at one point even used as a vehicle to ban alcohol

nationally, never mind the federal disputes from slavery to civil rights to abortion and same sex

marriage. The Federalists advocated a system in which the public good is assumed to exist, and

the structure of the system is ordered to promoting it throughout all the parts of the nation that

make up the whole. Yet this system is based on the consent of the people, and thus the meaning

of the public good is not set in stone.

Conclusion

Regardless of what one thinks of Bailyn’s interpretation, he offers a remarkable claim as

opposed to both Wood and the liberalism camp described above. At the end of Bailyn’s 1991

preface to Ideological Origins, he denied that the new Constitution constituted a “sudden break

in the ideological history of our national origins,” and while “modifications in the basic doctrines

had to be made,” and “fundamental beliefs has to be tested, refine, modernized, and ingeniously

reapplied,” these doctrines “were not repudiated.” His point, over and against proponents of

liberalism and Wood himself, was that “[t]he essential spirit of eighteenth century reform—its

idealism, its determination to free the individual from the power of the state, even a reformed

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state—lived on, and lives on still.”900 While Wood and the proponents of liberalism have

sometimes made similar claims (notably, Wood has suggested that the modern day “Tea Party”

bears resemblance to a continuing strain of thought born of the Anti-Federalists), they have also

often spoken as if it is a foregone conclusion that today’s rhetoric has anything to do with that of

the early founding era, especially when it comes to notions of virtue and the public good. No

doubt they are to some extent right in this assessment. Much of modern scholarship, at least,

would find Bailyn’s claim to be a silly, if quaint remark by an aging historian making an

ahistorical claim, anachronistically superimposing his particular area of study upon the present

day.

Political rhetoric, of course, often conceals as much as it reveals, and there is little doubt

that today the very idea of natural rights and a public good that consists in more than material

goods is often denied, and this denial might be found in the words of both nominees running for

president in 2012. Yet political rhetoric is also intended to persuade its audience, and thus

presents a trustworthy indicator of the underlying ideas that appeal to its audience.

In 2012, the American people voted in party primaries within a party system that was

admittedly unlike anything the founding generation ever experienced.

Yet despite the proliferation of thousands of institutions of higher learning in a greatly

expanded America in over two centuries since the founding era, and despite the underlying

exponential increase in population, both presidential nominees in 2012 attended graduate

programs at an institution not unknown to the natural aristocracy of the founding era. The

Republican candidate, Mitt Romney, a wealthy business man, was born into a prominent family

and yet in terms of wealth was a largely self-made man with political experience. The

Democratic candidate, Barak Obama, running for a second term in the office Washington made,

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had by force of rhetoric and intelligence moved in elite circles for some time before entering

politics, ultimately convincing such circles to support his candidacy for president instead of their

party’s frontrunner.

At the convention held to nominate Mitt Romney, speaker after speaker spoke of his

virtues, extolling the man as a model citizen and a virtuous leader—manifesting the ability to

deliberate well and make the right decisions—who loved and cared about the good of America

itself. It was said repeatedly that he would defend the rights of various groups and individuals—

rights which his opponent was said to deny and ignore. In fact, many Romney supporters accuse

the President of denying the idea of natural rights itself, thus debasing the idea of individual

rights and paradoxically giving the government unjust power over the individual. Moreover,

Romney’s opponent, it was said, sought government control over matters properly left to the

individual, and his economic policies were immoral, unjust and crippling the good of the regime.

In his speech accepting the nomination, Romney’s opponent said:

As Americans, we believe we are endowed by our Creator with certain inalienable rights,

rights that no man or government can take away. We insist on personal responsibility,

and we celebrate individual initiative. We're not entitled to success. We have to earn it.

We honor the strivers, the dreamers, the risk- takers, the entrepreneurs who have always

been the driving force behind our free enterprise system, the greatest engine of growth

and prosperity that the world's ever known.

But we also believe in something called citizenship — [cheers, applause] — citizenship,

a word at the very heart of our founding, a word at the very essence of our democracy,

the idea that this country only works when we accept certain obligations to one another

and to future generations.

***

Because -- because America, we understand that this democracy is ours.

We, the People, recognize that we have responsibilities as well as rights; that our

destinies are bound together; that a freedom which asks only what's in it for me, a

freedom without a commitment to others, a freedom without love or charity or duty or

patriotism, is unworthy of our founding ideals, and those who died in their defense.

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As citizens, we understand that America is not about what can be done for us. It's about

what can be done by us, together — [cheers, applause] — through the hard and

frustrating but necessary work of self-government. That's what we believe.901

At the convention held to nominate President Obama, speaker after speaker praised his

record, hailing it as good for all Americans while decrying his opponent for seeking only to

protect the interests of the wealthy few. In fact, Obama supporters accuse Romney and his vice-

presidential running mate of denying the very existence of a common good in favor of a radical

individualism. It was said repeatedly at the Democratic convention that Obama would defend

the rights of various groups and individuals—rights which his opponent was said to deny and

ignore. His opponent sought government control over matters properly left to the individual, and

his economic policies were unjust and would cripple the good of the regime. President Obama, it

was said, had shown the virtues of leadership, deliberation, and good decision making, and these

attributes were recounted at length to make clear he was no ordinary man. In his speech

accepting the nomination, Obama’s opponent said:

[Immigrants] came [to America] not just in pursuit of the riches of this world but for the

richness of this life.

Freedom. Freedom of religion. Freedom to speak their mind. Freedom to build a life.

***

When we were new to the community it was welcoming and as the years went by, it was

a joy to help others who had just moved to town or just joined our church. We had

remarkably vibrant and diverse congregants from all walks of life and many who were

new to America. We prayed together, our kids played together and we always stood ready

to help each other out in different ways.

And that’s how it is in America. We look to our communities, our faiths, our families for

our joy, our support, in good times and bad. It is both how we live our lives and why we

live our lives. The strength and power and goodness of America has always been based

on the strength and power and goodness of our communities, our families, our faiths.

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That is the bedrock of what makes America, America. In our best days, we can feel the

vibrancy of America’s communities, large and small.

***

And does the America we want succumb to resentment and division? We know the

answer.

The America we all know has been a story of the many becoming one, uniting to preserve

liberty, uniting to build the greatest economy in the world, uniting to save the world from

unspeakable darkness.

Everywhere I go in America, there are monuments that list those who have given their

lives for America. There is no mention of their race, their party affiliation, or what they

did for a living. They lived and died under a single flag, fighting for a single purpose.

They pledged allegiance to the UNITED States of America.

***

That America, that united America, will uphold the constellation of rights that were

endowed by our Creator, and codified in our Constitution.

That united America will care for the poor and the sick, will honor and respect the

elderly, and will give a helping hand to those in need.902

One wonders if, two centuries hence, a historian reading these speeches and the collected words

of the media of our day, much like Bailyn when reading the pamphlets of the founding era,

amidst all the ambiguity and seeming contradictions of political speech, will begin “to suspect

that they meant something very real to both the writers and their readers.”

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Endnotes

1 Bernard Bailyn, The Ideological Origins of the American Revolution (Cambridge, Mass.: Belknap Press of Harvard University Press, 1992), 327. 2 See the projected volumes listed at http://www.virginia.edu/pjm/description1.htm 3 See the “Forthcoming Volumes” listed at http://www.wisconsinhistory.org/ratification/ 4 John P Kaminski et al., The Documentary History of the Ratification of the Constitution Digital Edition (Charlottesville, Va.: University of Virginia Press, 2009), Volume XIX, 105. http://rotunda.upress.virginia.edu/founders/RNCN.html. All subsequent citations from the Documentary History will consist of the Volume and page number; using the entry above as an example, they will appear like this: XIX, 105. 5 XIX, 155. 6 XIV, 178. 7 Noah Webster, A Compendious Dictionary of the English Language (Crown, 1970), 240. This book is a facsimile of the original 1806 edition; the page numbers are the same as the original 1806 edition. 8 Ibid., 129. 9 Ibid., 58. 10 Johnson, Samuel. A dictionary of the English language; in which the words are deduced from their originals, explained in their different meanings, And Authorized BY The Names Of The Writers In Whose Works They Are Found. Abstracted from the folio edition, by the author, Samuel Johnson, LL.D. To which is prefixed a grammar of the English language. Vol. Volume 2.The eleventh edition, corrected and revised; with considerable additions from the eighth edition of the original. London, 1799. Page 185, “Publick” entry. Eighteenth Century Collections Online. Gale. Claremont College Library. 3 Sept. 2013 <http://find.galegroup.com.ccl.idm.oclc.org/ecco/infomark.do?&source=gale&prodId=ECCO&userGroupName=claremont_main&tabID=T001&docId=CW3312523290&type=multipage&contentSet=ECCOArticles&version=1.0&docLevel=FASCIMILE>. 11 Webster, A Compendious Dictionary of the English Language, 239. 12 Ibid., 348. 13 Ibid., 347. 14 Ibid., 58. 15 Ibid., 139. 16 Paul A. Samuelson, “The Pure Theory of Public Expenditure,” The Review of Economics and Statistics 36, no. 4 (November 1, 1954): 387, doi:10.2307/1925895.

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17 Michael Pickhardt, “Fifty Years After Samuelson’s ‘the Pure Theory of Public Expenditure’: What Are We Left With?,” Journal of the History of Economic Thought 28, no. 4 (2006): 439–460, doi:10.1080/10427710601013939. 18 R.A. Musgrave, “Provision for Social Goods,” in: Margolis, J./Guitton, H. (eds.), Public Economics (London: McMillan, 1969), pp. 134-135. 19 Nor is this a necessarily modern development. Thomas Aquinas, for instance, spoke similarly on occasion. 20 Murray Dry and Herbert J. Storing, The Anti-Federalist: An Abridgement, by Murray Dry, of the Complete Anti-Federalist, Edited, with Commentary and Notes, by Herbert J. Storing (University of Chicago Press, 1985), 275–276. 21 IV, 304 22 Collections of the Massachusetts Historical Society (The Society, 1843), 78. https://play.google.com/store/books/details?id=3K8yAQAAMAAJ 23 Herbert J. Storing and Murray Dry, The Complete Anti-Federalist: Massachusetts and New England (University of Chicago Press, 1981), Volume 4, p. 68. 24 William Barclay Allen, Gordon Lloyd, and Margie Lloyd, The Essential Antifederalist (Rowman & Littlefield, 2002), 4. 25 XIII, 411. 26 XIX, 104. 27 Storing and Dry, The Complete Anti-Federalist, Volume 2, 363. 28 Cecelia M. Kenyon, The Antifederalists (Bobbs-Merrill, 1966), lxxxviii. 29 Ibid., 323. 30 Murray Dry and Herbert J. Storing, The Anti-Federalist: An Abridgement, by Murray Dry, of the Complete Anti-Federalist, Edited, with Commentary and Notes, by Herbert J. Storing (University of Chicago Press, 1985), 103. 31 Morton Borden (ed), The Antifederalist Papes. Edited with an Introd. by Morton Borden, 1965, 42. 32 Ralph Louis Ketcham, The Anti-Federalist Papers ; The Constitutional Convention Debates (New York: Signet Classic, 2003). 33 XIX, 104. 34 Yates was present at the Philadelphia Convention from the time it opened, on May 25th, 1787 until he and his fellow New York delegate, John Lansing, citing their disagreement with the direction of the proceedings, left on July 10th well before the Convention concluded on September 17th. 35 Bernard Bailyn, The Ideological Origins of the American Revolution (Cambridge, Mass.: Belknap Press of Harvard University Press, 1992), 333, 334. 36 XVI, 376. 37 XX, 203. 38 J. Kent McGaughy, “The Authorship of the Letters from the Federal Farmer, Revisited.” New York History (April 1989): 153-170. 39 Robert H. Webking, “Melancton Smith and the Letters from the Federal Farmer,” The William and Mary Quarterly 44, no. 3 (July 1, 1987): 510–528, doi:10.2307/1939768. 40 Michael P Zuckert and Webb, The Anti-federalist Writings of the Melancton Smith Circle (Indianapolis: Liberty Fund, 2009). 41Colleen A. Sheehan, Friends of the Constitution: Writings of the “Other” Federalists, 1787-1788, edited by Colleen

A. Sheehan and Gary L. McDowell (Indianapolis: Liberty Fund, 1998). Accessed from http://oll.libertyfund.org/title/2069 on 2013-04-20 42 XIX, 484; XX 553. 43 Alan Ray Gibson, Interpreting the Founding: Guide to the Enduring Debates Over the Origins And Foundations of the American Republic (University Press of Kansas, 2006); Alan Ray Gibson, Understanding the Founding: The Crucial Questions (University Press of Kansas, 2007). 44 Gibson, Interpreting the Founding, 13-14. 45 Rogers M. Smith, Civic Ideals: Conflicting Visions of Citizenship in U.S. History (Yale University Press, 1997). 46 Gibson, Understanding the Founding, 218. 47 Woodrow Wilson, Constitutional Government in the United States (Transaction Publishers, 1908), 14. https://play.google.com/store/books/details?id=W0IiAQAAIAAJ&rdid=book-W0IiAQAAIAAJ&rdot=1

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48 Carl Lotus Becker, The Declaration of Independence: A Study on the History of Political Ideas (New York: Harcourt, Brace and Co., 1922); Carl Lotus Becker, The Heavenly City of the Eighteenth-century Philosophers (Yale University Press, 2003). http://oll.libertyfund.org/title/1177 49 Charles Austin Beard, An Economic Interpretation of the Constitution of the United States (Macmillan, 1921), 155. 50 See the discussion of this passage in Harry V. Jaffa, A New Birth of Freedom: Abraham Lincoln and the Coming of the Civil War (Rowman & Littlefield, 2004). 51 Gunnar Myrdal, An American Dilemma: The Negro Problem and Modern Democracy (Harper, 1944). 52 Louis Hartz, The Liberal Tradition in America: An Interpretation of American Political Thought Since the Revolution (Harcourt Brace Jovanovich, 1955); Louis Hartz, “American Political Thought and the American Revolution,” The American Political Science Review 46, no. 2 (June 1, 1952): 321–342, doi:10.2307/1950832; Louis Hartz, “The Coming of Age of America,” The American Political Science Review 51, no. 2 (June 1, 1957): 474–483, doi:10.2307/1952203; Louis Hartz, “American Historiography and Comparative Analysis: Further Reflections,” Comparative Studies in Society and History 5, no. 4 (July 1, 1963): 365–377, doi:10.2307/177777. 53 Richard Hofstadter. The American Political Tradition and the Men Who Made It (1948; reprint, New York: Vintage Books, 1974). 54 Douglas Adair (T. Colbourn ed), Fame and the Founding Fathers (Williamsburg, 1974); Douglass Adair, The Intellectual Origins of Jeffersonian Democracy: Republicanism, the Class Struggle, and the Virtuous Farmer (Lexington Books, 2000). 55 Martin Diamond, “Ethics and Politics: The American Way,” in Robert H. Horwitz, ed., The Moral Foundations of the American Republic, 3d ed. (Charlottesville, 1986), 75-108; Diamond, “Democracy and The Federalist: A Reconsideration of the Framers' Intent,” American Political Science Review Vol. 53, No. 1 (March 1959). 56 Forrest McDonald, We the People: The Economic Origins of the Constitution (Chicago, 1958). 57 Robert E. Brown, Charles Beard and the Constitution (Princeton University Press, 1956). 58 Clinton Rossiter, 1787: The Grand Convention (New York, 1966), 294-295. 59 Cecilia Kenyon, “Men of Little Faith: The Antifederalists on the Nature of Representative Government,” William & Mary Quarterly, 3rd Ser., Vol. 12 (January, 1955) 60 An early review of the demise of Beard can be found in Elkins and McKitrick’s “The Founding Fathers: Young Men of the Revolution,” Political Science Quarterly, Vol. 76, No. 2. (Jun., 1961), pp. 181-216. 61 Hartz, The Liberal Tradition in America, 62. 62 Hartz, “The Coming of Age of America,” 476. 63 Ibid., 480. 64 Hartz, The Liberal Tradition in America, 14. 65 Robert H. Horwitz, The Moral Foundations of the American Republic (University of Virginia Press, 1986), 95. 66 Martin Diamond, “Democracy and the Federalist: A Reconsideration of the Framers’ Intent,” The American Political Science Review 53, no. 1 (March 1, 1959): 63, doi:10.2307/1951730. 67 Ibid., 63–64. 68 Ibid., 67. 69 Kenyon, “Men of Little Faith,” 37-38. 70 Ibid., 22-23. 71 Herbert J. Storing, What the Anti-Federalists Were For: The Political Thought of the Opponents of the Constitution: The Political Thought of the Opponents of the Constitution (University of Chicago Press, 2008), 83 n7. 72 Ibid., 71. 73 Ibid., 72. 74 Ibid., 76. 75 Colleen A. Sheehan, James Madison and the Spirit of Republican Self-Government (Cambridge University Press, 2009), 170–173. 76 Ibid., 173. 77 Gibson, Understanding the Founding, 131. 78 Thomas L. Pangle, The Spirit of Modern Republicanism: The Moral Vision of the American Founders and the Philosophy of Locke (University of Chicago Press, 1988); Thomas L. Pangle, The Ennobling of Democracy: The Challenge of the Postmodern Age (Johns Hopkins University Press, 1992).

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79 Paul Anthony Rahe, Republics Ancient and Modern: Classical Republicanism and the American Revolution (Chapel Hill: University of North Carolina Press, 1992); Paul A Rahe, Republics, Ancient and Modern 3, 3, (Chapel Hill: Univ. of North Carolina Pr., 1994). 80 Michael P. Zuckert, The Natural Rights Republic: Studies in the Foundation of the American Political Tradition (University of Notre Dame Press, 1996); Michael P. Zuckert, Natural Rights and the New Republicanism (Princeton University Press, 1998); Michael P. Zuckert, Launching Liberalism: On Lockean Political Philosophy (University Press of Kansas, 2002). 81 Zuckert, Launching Liberalism, 282, 283. 82 Pangle, The Spirit of Modern Republicanism, 33–34. 83 Ibid., 94. 84 Ibid., 27. 85 Ibid., 48. 86 Thomas L. Pangle, The Ennobling of Democracy: The Challenge of the Postmodern Age (JHU Press, 1993), 203. 87 Ibid., 155. 88 Pangle, The Spirit of Modern Republicanism, 286. 89 Ibid., 34. 90 VIII, 390. Unless otherwise noted, all italics in quotations appear in the original text. 91 VIII, 420. 92 Ibid. 93 VIII, 420-421. 94 VIII, 421. 95 Ibid. 96 X, 1577. 97 Rahe, Republics, Ancient and Modern 3, 3,, 351. 98 Ibid. 99 Gibson, Understanding the Founding, 131. 100 Bernard Bailyn, The Ideological Origins of the American Revolution (Cambridge, Mass.: Belknap Press of Harvard University Press, 1992). 101 Gordon S. Wood, “Rhetoric and Reality in the American Revolution,” The William and Mary Quarterly 23, no. 1 (January 1, 1966): 4–32, doi:10.2307/2936154; Gordon S Wood and Va.) Institute of Early American History and Culture (Williamsburg, The Creation of the American Republic, 1776-1787, (Chapel Hill: Published for the Institute of Early American History and Culture at Williamsburg, Va., by the University of North Carolina Press, 1969). 102 J. G. A. Pocock, “Virtue and Commerce in the Eighteenth Century,” The Journal of Interdisciplinary History 3, no. 1 (July 1, 1972): 119–134, doi:10.2307/202465; John Greville Agard Pocock, The Machiavellian Moment: Florentine Political Thought and the Atlantic Republican Tradition (Princeton University Press, 1975); John Greville Agard Pocock and Richard Ashcraft, John Locke: Papers Read at a Clark Library Seminar, 10 December, 1977 (William Andrews Clark Memorial Library, University of California, 1980). 103 Robert E. Shalhope, “Toward a Republican Synthesis: The Emergence of an Understanding of Republicanism in American Historiography,” The William and Mary Quarterly 29, no. 1 (January 1, 1972): 56, doi:10.2307/1921327. 104 Ibid., 61; Robert E. Shalhope, “Republicanism and Early American Historiography,” The William and Mary Quarterly 39, no. 2 (April 1, 1982): 334–356, doi:10.2307/1918756. 105 James H. Hutson, “Country, Court, and Constitution: Antifederalism and the Historians,” The William and Mary Quarterly 38, no. 3 (July 1, 1981): 364, doi:10.2307/1921952. Hutson takes his British terms from Pocock: he calls the Anti-Federalists the “Country” party and the Federalists the “Court” party. Hutson disagrees with Wood in that Hutson does not think the Anti-Federalists were democrats. 106 Bailyn, The Ideological Origins of the American Revolution, 1. 107 Gordon S. Wood, “The Empire Strikes Out,” New Republic 214, no. 8 (February 19, 1996): 36. 108 Ibid., 36–37. 109 Ibid., 37. 110 Bailyn, The Ideological Origins of the American Revolution, xiii.

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111 The Creation of the American Republic, 1776-1787 (UNC Press Books, 1998), 53. 112 Ibid., 54. 113 Ibid., 68. 114 Steven F. Hayward, “The Liberal Republicanism of Gordon Wood,” Bibliographic Essay 7, no. 1 (December 15, 2006): 27–30. http://www.claremont.org/publications/crb/id.1274/article_detail.asp 115 Bailyn, The Ideological Origins of the American Revolution, vi. 116 The Creation of the American Republic, 1776-1787, xi. 117 Ibid., xiii. 118 Ibid., xi. 119 Ibid., vii. 120 Paul A. Rahe, “Gordon Wood Reconsidered,” Discussion of The Liberal Republicanism of Gordon Wood, by Steven F. Hayward; with Reply 7, no. 2 (April 15, 2007): 4–5. 121 James W. Ceaser, “Looking Backward,” Claremont Review of Books 7, no. 1 (December 15, 2006): 24–26. 122 Gordon S. Wood, “The Fundamentalists and the Constitution,” The New York Review of Books, February 18, 1988, http://www.nybooks.com.ccl.idm.oclc.org/articles/archives/1988/feb/18/the-fundamentalists-and-the-constitution/. 123 Rahe, “Gordon Wood Reconsidered.” 124 The Creation of the American Republic, 1776-1787, 60–61. 125 Ibid., 61. 126 Charles S. Hyneman, American Political Writing During the Founding Era: 1760-1805, ed. Charles S. Hyneman and Donald Lutz (Indianapolis: Liberty Fund, 1983). 2 vols. Volume 1. Chapter: [25]: Levi Hart 1738-1808: Liberty Described and Recommended: in a Sermon Preached to the Corporation of Freemen in Farmington, 11. Accessed from http://oll.libertyfund.org/?option=com_staticxt&staticfile=show.php%3Ftitle=2066&chapter=188633&layout=html&Itemid=27 on 2013-08-04 127 Hyneman, American Political Writing, Vol. 1, 14. http://oll.libertyfund.org/?option=com_staticxt&staticfile=show.php%3Ftitle=2066&chapter=188633&layout=html&Itemid=27 128 Hyneman, American Political Writing, Vol. 1, 16. http://oll.libertyfund.org/?option=com_staticxt&staticfile=show.php%3Ftitle=2066&chapter=188633&layout=html&Itemid=27 129 The Creation of the American Republic, 1776-1787, 61 FN30. 130 Paul Leicester Ford, ed., John Dickinson, The Writings of John Dickinson: Political Writings, 1764-1774 (The Historical Society of Pennsylvania, 1895), 400. https://play.google.com/store/books/details?id=DJBLAAAAYAAJ&rdid=book-DJBLAAAAYAAJ&rdot=1 131 Ford, ed., Dickinson, Writings, 400. 132 Ford, ed., Dickinson, Writings, 401. 133 Ibid. 134 Ibid. 135 Ford, ed., Dickinson, Writings, 400. 136 Ford, ed., Dickinson, Writings, 401, 402. 137 Theophilus Parsons, Memoir of Theophilus Parsons: Chief Justice of the Supreme Judicial Court of Massachusetts (Ticknor and Fields, 1861), 365. http://books.google.com/books/about/Memoir_of_Theophilus_Parsons.html?id=IQUCAAAAYAAJ 138 Parsons, Memoir, 366. 139 Parsons, Memoir of Theophilus Parsons, 374. 140 Samuel Adams, The Writings of Samuel Adams: 1778-1802, vol. 4 (G.P. Putnam’s Sons, 1908), 255. http://books.google.com/books/about/The_Writings_of_Samuel_Adams_1778_1802.html?id=jaj61jLytIoC 141 Edwin Doak Mead, The Old South Leaflets (Old South Meeting House, 1906) no. 173: 417-428, 418. 142 XIII, 49. 143 Ibid.

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144 Four Letters on Interesting Subjects. (Steiner, Melchior, d. 1807?, printer., 1776), 20, http://docs.newsbank.com/openurl?ctx_ver=z39.88-2004&rft_id=info:sid/iw.newsbank.com:EAIX &rft_val_format=info:ofi/fmt:kev:mtx:ctx&rft_dat=0F30143C416FB4D0&svc_dat=Evans:eaidoc&req_dat=0D0CB4F037B4F60A 145 Ibid., 19. 146 Ibid., 21–22. 147 Charles R. Kesler, Saving the Revolution: The Federalist Papers and the American Founding (Free Press, 1987), 28. 148 Ibid., 33. 149 Ibid., 38. 150 Ibid., 36. 151 Joseph M. Bessette, The Mild Voice of Reason: Deliberative Democracy and American National Government (University of Chicago Press, 1997). 152 Colleen A. Sheehan, James Madison and the Spirit of Republican Self-Government (Cambridge University Press, 2009), 167. 153 Ibid., 99. 154 Ibid., 169. 155 Bessette, The Mild Voice of Reason, 27. 156 Ibid., 27–28. 157 Ibid., 28. 158 Herbert J. Storing and Murray Dry, The Complete Anti-Federalist: Massachusetts and New England (University of

Chicago Press, 1981), 68. 159 V, 823. 160 Ibid. 161 Ibid. 162 V, 824. 163 Ibid. 164 V, 863. 165 Ibid. 166 V, 722. 167 V, 579. 168 V, 741-742. 169 IV, 427. 170 V, 484. 171 IV, 305. 172 VIII, 393. 173 VIII, 390. 174 VIII, 391. 175 VIII, 462. 176 X, 1647. 177 VIII, 389. 178 Ibid. 179 VIII, 390. 180 VIII, 387-388. 181 IX, 887. 182 Ibid. 183 X, 1645. 184 VIII, 461. 185 VIII, 460. 186 X, 1647.

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187 Ibid. 188 VIII, 390. 189 VIII, 389. 190 VIII, 420. 191 VIII, 421. 192 VIII, 420. 193 X, 1577. 194 VIII, 525. 195 Ibid. 196 XX, 617-618. 197 XIX, 155. 198 Ibid. 199 XIX, 111. 200 XIX, 110. 201 XIX, 472. 202 XIX, 313. 203 Ibid. 204 XIX, 316. 205 XIX, 314. 206 Ibid. 207 XX, 622. 208 XIX, 316. 209 XIX, 318. 210 XIX, 471. 211 XX, 619. 212 XX, 594. 213 XX, 618. 214 XX, 758. 215 XX, 759. 216 XIX, 411. 217 XIX, 411-412. 218 XIX, 470-471. 219 XIX, 107. 220 XIX, 471. 221 XIX, 109. 222 XX, 681; see also XX, 684. 223 XIX, 217. 224 XX, 983. 225 XIX, 233-234. 226 XX, 1052. 227 XIX, 216. 228 XX, 983-984. 229 XIV, 39. 230 XVII, 322. 231 XVII, 306. 232 XVII, 320. 233 XVII, 361.

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234 XVII, 273. 235 XIV, 42. 236 XVII, 294. 237 XVII, 360. 238 XVII, 355. 239 XV, 99-100. 240 XIII, 344. 241 XV, 100. 242 XVII, 59. 243 XIII, 329. 244 XV, 387. 245 XV, 389. 246 XIV, 344. 247 XIII, 330. 248 XIII, 459. 249 XVII, 55. 250 XV, 310. 251 XV, 389. 252 XVII, 57. 253 XVI, 476-478. 254 XIV, 56. 255 XIII, 331. 256 XIII, 464. 257 XV, 507. 258 XIII, 332-333. 259 XIV, 344. 260 XVI, 219-220. 261 XIV, 400. 262 XVI, 367. 263 XIV, 140. 264 XIV, 139. 265 III, 352. 266 XIV, 94. 267 XIV, 451. 268 XIV, 139. 269 XIV, 95. 270 XV, 191. 271 XVI, 407. 272 XIII, 471. 273 XV, 274. 274 XIX, 490. 275 XX, 555. 276 XX, 553. 277 XX, 554-555. 278 Colleen A. Sheehan and Gary L. McDowell, Friends of the Constitution: Writings of the “Other” Federalists, 1787-

1788 (Liberty Fund, 1998), 396. 279 XX, 789.

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280 Sheehan and McDowell, Friends of the Constitution, 383. 281 Ibid., 385. 282 Ibid., 383. 283 XX, 738. 284 Sheehan and McDowell, Friends of the Constitution, 388. 285 Ibid., 389. 286 Ibid., 391. 287 II, 356-357. 288 II, 388, 390, 391, 517. 289 XIII, 339-340. 290 II, 388. 291 II, 570. 292 XIII, 343. 293 II, 581. 294 II, 345. 295 II, 359. 296 II, 560. 297 II, 563. 298 II, 346. 299 II, 359. 300 II, 560. 301 II, 359. 302 II, 359. 303 II, 448. 304 II, 449. 305 II, 476. 306 II, 566. 307 II, 558. 308 II, 481-482. 309 II, 485. 310 XVII, 168-169. 311 XVII, 168. 312 XVII, 169. 313 XVII, 169. 314 XVII, 168. 315 XVII, 180. 316 XVII, 183.

316See also Hamilton’s words from The Farmer Refuted in 1775: “The sacred rights of mankind are not to be

rummaged for, among old parchments, or musty records. They are written, as with a sun beam, in the whole

volume of human nature, by the hand of the divinity itself; and can never be erased or obscured by mortal power.”

316http://press-pubs.uchicago.edu/founders/documents/v1ch3s5.html

317 XVI,195. 318 III, 251. 319 XVII, 170.

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320 XVII, 224. 321 XVII, 81. 322 XVII, 264. 323 XVII, 223. 324 XVII, 124. 325 XVII, 248. 326 XII, 249. 327 XII, 434. 328 XV, 174. 329 XX, 1147. 330 XV, 175. 331 XV, 508-509. 332 II, 146. 333 XV, 457. 334 XX, 1142. 335 Aristotle, Jowett translation, Politics, Book VI, chapter 2. 336 Aristotle, Jowett translation, Politics, Book VI, chapter 2. 337 Aristotle, Jowett translation, Politics, Book III, chapter 6. 338 See, for instance: Joel A. Johnson, “Disposed to Seek Their True Interests: Representation and Responsibility in

Anti-Federalist Thought,” The Review of Politics 66, no. 4 (October 1, 2004): 662, doi:10.2307/4149166. 339 A plausible case, however, can also be made that the divergence in the ratification debates reveals a deep

division that played itself through the ensuing century of American history, even leading to the Civil War. For instance, see David Broyles, “Federalism and Political Life,” in Charles R. Kesler, ed., Saving the Revolution: The Federalist Papers and the American Founding (Free Press, 1987). 340 XIV, 297. 341 XIX, 280. Besides the sheer bulk of Federalist responses, amongst the Anti-Federalists one will find references

such as are in Cato in the example cited above. 342 XIV, 297. 343 XIX, 254. 344 XIV, 122. 345 XIV, 122. 346 XIV, 122. 347 XIX, 121; XIII, 429-430. 348 XIV, 178. 349 XIV, 297. 350 XIII, 418. 351 XIV, 297. 352 Herbert J. Storing, What the Anti-Federalists Were For: The Political Thought of the Opponents of the

Constitution: The Political Thought of the Opponents of the Constitution (University of Chicago Press, 2008), 39. 353 XIII, 418. 354 XIII, 418. 355 XII, 418. 356 Noah Webster, A Compendious Dictionary of the English Language (Crown, 1970), 162. 357 XIV, 122. 358 XIV, 123. 359 XIV, 298. 360 XIV, 298-299.

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361 XIII, 418-419. 362 XIV, 299-300. 363 XIV, 302. 364 XIV, 302-303. 365 XIV, 303. 366 XIV, 122. 367 XIV, 302. 368 XIX, 105. 369 XIV, 297. 370 XX, 570. 371 XIX, 473. 372 XX, 776. 373 XX, 797. 374 XV, 115. 375 XV, 115. 376 XIII, 420. 377 XIII, 418. 378 XIII, 418. 379 XIII, 418-419. 380 XIX, 110. 381 XIV, 300. See Wilson Carey McWilliams, “Anti-Federalists, Representation, and Party,” Northwestern University

Law Review 84 (1990 1989): 12. 382 XV, 507. 383 XIII, 331. 384 XVIII, 331. 385 XV, 99. 386 XV, 100. 387 XV, 507. 388 XIII, 464. 389 XVI, 347 390 XIV, 99. 391 XV, 507. 392 XIII, 331. 393 XIII, 331, 332, 332, 332, 332, 335, 465; XV, 100, 100, 507. 394 Agrippa does not use the word at all; the Impartial Examiner uses the term 3 times; Brutus uses the term 7

times; the Federal Farmer uses the term 8 times. Among the Federalists, James Wilson does not use the word at all; John Dickinson uses the word twice; Oliver Ellsworth uses the word twice; Tench Coxe uses the word twice; Noah Webster uses the word twice in his essays and once negatively in a footnote he added after the ratification debates. 395 Webster, A Compendious Dictionary of the English Language, 256. 396 Ibid., 218. 397 Ibid., 256. 398 Ibid., 13. 399 Webster’s ninth new collegiate dictionary (1984) 400 XV, 100.

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401 See, for instance, 98-99 in Maier’s Ratification see also:

http://history.wisc.edu/csac/documentary_resources/ratification/attachments/pa%20intro%20essay.pdf 402 XV, 308-309. 403 XIII, 332. 404 XIV, 347-348. 405 XV, 100. 406 XIII, 331. 407 XV, 507 408 XIII, 460; XIV, 347; XIV, 347; XV, 99; XV, 100; XV, 100; XV, 100; XV, 178; XV, 308. 409 XIII, 329, 190. 410 XIII, 329-330. 411 XIV, 59. 412 XIV, 321. 413 XV, 99. 414 XV, 233. 415 XIII, 329-330. 416 XV, 100. 417 XX, 1017. 418 XIX, 242. 419 XIX, 228. 420 XIV, 314-315. 421 XIV, 314. 422 XIV, 277. 423 XIX, 220. 424 XX, 988. 425 XX, 989-990. 426 XX, 989. 427 XX, 990. 428 XVII, 280. 429 XX, 1028. 430 XIX, 220. 431 XIX, 220. 432 XVII, 280. 433 XX, 991. 434 XX, 1000. 435 Johnson, “Disposed to Seek Their True Interests.” 436 XX, 999-1000. 437 XX, 991. 438 XIX, 238. 439 XX, 996-997. 440 XX, 997. 441 XX, 989. 442 XIX, 240-241. 443 XIX, 241. 444 XIX, 228. 445 XX, 988.

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446 XX, 1017. 447 XX, 1028. 448 XX, 1064. 449 XX, 1069. 450 XX, 1016. 451 XIV, 321. 452 XIV, 304. 453 XIV, 303. 454 XX, 1030. 455 XX, 1065. 456 Colleen A. Sheehan and Gary L. McDowell, Friends of the Constitution: Writings of the “Other” Federalists, 1787-

1788 (Liberty Fund, 1998), 373. 457 Ibid., 374. 458 Ibid. 459 Ibid., 374–375. 460 Ibid., 376. 461 Ibid., 375. 462 Noah Webster, A Collection of Essays and Fugitiv Writings: On Moral, Historical, Political and Literary Subjects

(Printed at Boston, for the author, by I. Thomas and E.T. Andrews, 1790), 77, http://books.google.com/books?id=pcIgAAAAMAAJ&dq=fugitiv%20writings%20webster&pg=PP11#v=onepage&q=fugitiv%20writings%20webster&f=false. 463 Sheehan and McDowell, Friends of the Constitution, 376–377. 464 Ibid., 377. 465 XX, 787. Read the DHRC editorial notes for this entry for their argument that the author was Webster; in my

judgment the style and argument are consonant with Webster. 466 Sheehan and McDowell, Friends of the Constitution, 392. 467 XV, 201. 468 Sheehan and McDowell, Friends of the Constitution, 377–378. 469 Ibid., 378. 470 XX, 742. 471 XX, 742. 472 Terence S. Morrow, “Representation and Political Deliberation in the Massachusetts Constitutional Ratification

Debate,” Rhetoric &amp; Public Affairs 3, no. 4 (2000): 529–553, doi:10.1353/rap.2000.0010. 473 Webster, A Collection of Essays and Fugitiv Writings, 78. 474 XIII, 418. 475 V, 1022; Webster, A Collection of Essays and Fugitiv Writings, 78. 476 Ibid., 76–77. 477 Ibid., 77. 478 Ibid., 79. 479 Sheehan and McDowell, Friends of the Constitution, 383. 480 XX, 742-743. 481 Sheehan and McDowell, Friends of the Constitution, 383. 482 Ibid. 483 Webster, A Collection of Essays and Fugitive Writings, 78–79. 484 Ibid. 485 XIX, 493. 486 XX, 738.

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487 XX, 738-739. 488 XX, 743. 489 XX, 739.

490 XX, 741.

490Webster’s footnote to this passage reads: “This detestable error subverts the whole foundation of government.

It resembles the practice of some Gentlemen in the country, who hire a poor strolling vagabond to keep a school, and then let the children know that he is a mere servant. The consequence is the children despise him and his rules, and a constant war is maintained between the master and his pupils. The boys think themselves more respectable than the master, and the master has the rod in his hand, which he never fails to exercise. A proper degree of respect for the man and his laws, would prevent a thousand hard knocks. This is government in miniature. Men are taught to believe that their rulers are their servants, and then are rewarded with a prison and a gallows for despising their laws.” XX, 743.

491 Webster, A Collection of Essays and Fugitiv Writings, 80. 492 XV, 195. 493 XV, 196. 494 XX, 553. See also XX, 554-555. 495 XIII, 432. 496 XIII, 432. 497 II, 143. 498 II, 142. 499 XX, 1141. 500 XVIII, 281. 501 XVIII, 281. 502 II, 142. 503 II, 143. 504 XIII, 272. 505 II, 146. 506 II, 143. 507 II, 143-144. 508 XIV, 95. 509 XIV, 234. 510 XIV, 232. 511 XIV, 233. 512 XIV, 94. 513 II, 354 (Lloyd version). 514 II, 343-344; Lloyd version II, 354-355; cf. Tench Coxe, 433, although he speak in terms of taxation and

representation, and not representation itself. 515 II, 363. Wilson was not shy about speaking of the advantages of various forms of government. Elsewhere, citing

Montesquieu while speaking about the Constitutional Convention, he says: “The idea of a confederate republic presented itself. This kind of constitution has been thought to have ‘all the internal advantages of a republican, together with the external force of a monarchical government.’” Lloyd version: “confederate republic…is the most eligible system that can be proposed. By adopting this system, the vigor and decision of a wide-spreading monarchy may be joined to the freedom and beneficence of a contracted republic. “In this dilemma, a federal republic naturally presented itself to our observation as a species of government which secured all the internal advantages of a republic, at the same time that it maintained the external dignity and force of a monarchy. The definition of this form of government may be found in Montesquieu.” II, 341-342. 516 Sheehan and McDowell, Friends of the Constitution, 203.

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517 II, 363. 518 II, 580. 519 II, 465-66. 520 II, 466. 521 Sheehan and McDowell, Friends of the Constitution, 203. 522 Ibid. 523 II, 351. 524 II, 351-352. 525 Sheehan and McDowell, Friends of the Constitution, 203–204. 526 Ibid., 204. 527 II, 564. 528 XVIII, 245-246. 529 Herbert J. Storing, What the Anti-Federalists Were For: The Political Thought of the Opponents of the

Constitution: The Political Thought of the Opponents of the Constitution (University of Chicago Press, 2008), xxxv. 530 Ibid., 41. 531 http://www.thepublicdiscourse.com/2013/03/9458/ 532 A Latin Dictionary. Founded on Andrews' edition of Freund's Latin dictionary. revised, enlarged, and in great

part rewritten by. Charlton T. Lewis, Ph.D. and. Charles Short, LL.D. Oxford. Clarendon Press. 1879. 532http://www.perseus.tufts.edu/hopper/text?doc=licentia&fromdoc=Perseus%3Atext%3A1999.04.0059 533 licentious, adj. 533Second edition, 1989; online version June 2012. <http://www.oed.com/view/Entry/107959>; accessed 24

August 2012. Earlier version first published in New English Dictionary, 1902. 534 licentiousness, n.

Second edition, 1989; online version June 2012. <http://www.oed.com/view/Entry/107961>; accessed 24

August 2012. Earlier version first published in New English Dictionary, 1902. 535 A Latin Dictionary. Founded on Andrews' edition of Freund's Latin dictionary. revised, enlarged, and in great

part rewritten by. Charlton T. Lewis, Ph.D. and. Charles Short, LL.D. Oxford. Clarendon Press. 1879. 535http://www.perseus.tufts.edu/hopper/text?doc=Perseus:text:1999.04.0059:entry=licentiosus&highlight=licentiosus 536 Noah Webster, A Compendious Dictionary of the English Language (Crown, 1970), 176. 537 Ibid., 334. 538 Ibid., 179. 539 Ibid, 235. 540 Ibid, 176. 541 Ibid, 256. 542 Ibid, 74. 543 Ibid, 300. 544 II, 423. 545 XVI, 190. 546 XV, 387. 547 XV, 388. 548 XV, 100. 549 XIX, 242. 550 XIV, 282. 551 V, 864. 552 Herbert J. Storing, What the Anti-Federalists Were For: The Political Thought of the Opponents of the

Constitution: The Political Thought of the Opponents of the Constitution (University of Chicago Press, 2008), 39.

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553 Ibid., 40. 554 XX, 986. 555 XX, 983 556 Thomas L. Pangle, The Spirit of Modern Republicanism: The Moral Vision of the American Founders and the

Philosophy of Locke (University of Chicago Press, 1988), 98. 557 V, 742. 558 V, 516. 559 V, 726. 560 V, 541 561 IV, 305. 562 V, 721. 563 5.14.10 564 VIII, 465. 565 Webster, A Compendious Dictionary of the English Language, 181. 566 Pangle, The Spirit of Modern Republicanism, 98. 567 See Deneen’s egregious use of Impartial Examiner here: 567http://patrickdeneen.blogspot.com/2009/03/wisdom-of-anti-federalists.html 568 VIII, 465. 569 XIX, 277-278. 570 XIV, 57. 571 XV, 98-99. 572 II, 362. 573 II, 515. 574 XVIII, 245. 575 XVII, 181-182. 576 Webster, A Compendious Dictionary of the English Language, 184. 577 XVII, 181. 578 XVII, 181. 579 Webster, A Compendious Dictionary of the English Language, 183. 580 XVII, 181. 581 XVII, 183. 582 XVII, 183. 583 XVII, 261. 584 XVII, 264. 585 XVII, 172. 586 XVII, 182. 587 XVII, 223. 588 XVII, 223. 589 XX, 787 See the editorial notes making the case for Webster’s authorship; the style and argument are

consonant with Webster in my judgment. 590 XIII, 66. “We shall be left nearly in a state of Nature, or we may find by our own unhappy experience, that there

is a natural and necessary progression, from the extreme of anarchy to the extreme of Tyranny; and that arbitrary power is most easily established on the ruins of Liberty abused to licentiousness.” 591 XX, 941. “Let us also be mindful that the cause of freedom greatly depends on the use we make of the singular

opportunities we enjoy of governing ourselves wisely; for if the event should prove, that the people of this country either cannot or will not govern themselves, who will hereafter be advocates for systems, which however charming in theory and prospect, are not reducible to practice. If the people of our nation, instead of consenting to

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be governed by laws of their own making, and rulers of their own choosing, should let licentiousness, disorder, and confusion reign over them, the minds of men every where, will insensibly become alienated from republican forms, and prepared to prefer and acquiesce in Governments, which, though less friendly to liberty, afford more peace and security.” 592 IX, 990. VA Convention, June 5th: “He [Patrick Henry] has suggested that licentiousness, has seldom produced

the loss of liberty; but that the tyranny of rulers has almost always effected it. Since the general civilization of mankind, I believe there are more instances of the abridgment of the freedom of the people, by gradual and silent encroachments of those in power, than by violent and sudden usurpations: but, on a candid examination of history, we shall find that turbulence, violence, and abuse of power, by the majority trampling on the rights of the minority have produced factions and commotions, which, in republics, have more frequently than any other cause, produced despotism. If we go over the whole history of ancient and modern republics, we shall find their destruction to have generally resulted from those causes. If we consider the peculiar situation of the United States, and what are the sources of that diversity of sentiment which pervades its inhabitants, we shall find great danger to fear, that the same causes may terminate here, in the same fatal effects, which they produced in those republics. This danger ought to be wisely guarded against. Perhaps, in the progress of this discussion, it will appear, that the only possible remedy for those evils and means of preserving and protecting the principles of republicanism, will be found in that very system which is now exclaimed against as the parent of oppression.” 592 592X, 1283.June 14th VA Convention: “The establishment of such in America was my most ardent desire. I have

considered attentively (and my consideration has been aided by experience) the tendency of a relaxation of laws, and a licentiousness of manners.

592If we review the history of all republics, we are justified by the supposition, that if the bands of the government

be relaxed, confusion will ensue. Anarchy ever has, and I fear ever will, produce despotism. What was the state of things that preceded the wars and revolutions in Germany? Faction and confusion. What produced the disorders and commotions of Holland? The like causes. In this commonwealth, and every state in the union, the relaxed operation of the government has been sufficient to alarm the friends of their country. The rapid increase of population in every state is an additional reason to check dissipation and licentiousness.”

593Alexander Hamilton, The Works of Alexander Hamilton, ed. Henry Cabot Lodge (Federal Edition) (New York: G.P.

Putnam’s Sons, 1904). In 12 vols. Vol. 1. Chapter: THE CONTINENTALIST 593 593Accessed from http://oll.libertyfund.org/title/1378/64156 on 2013-09-03 593 593Continentalist, 2: “History is full of examples where, in contests for liberty, a jealousy of power has either

defeated the attempts to recover or preserve it, in the first instance, or has afterward subverted it by clogging government with too great precautions for its felicity, or by leaving too wide a door for sedition and popular licentiousness. In a government framed for durable liberty, not less regard must be paid to giving the magistrate a proper degree of authority to make and execute the laws with rigor, than to guard against encroachments upon the rights of the community.” 593

http://oll.libertyfund.org/?option=com_staticxt&staticfile=show.php%3Ftitle=1378&chapter=64156&layout=html&Itemid=27#c_lf0249-01_footnote_nt046 593 593XIV, 343. Federalist 16: “If opposition to the national government should arise from the disorderly conduct of

refractory or seditious individuals, it could be overcome by the same means which are daily employed against the same evil under the State governments. The magistracy, being equally the ministers of the law of the land, from whatever source it might emanate, would doubtless be as ready to guard the national as the local regulations from the inroads of private licentiousness. “

594 XIII, 46. “We detested the British name; and unfortunately refused to copy some things in the administration of

justice and power, in the British government, which have made it the admiration and envy of the world. In our

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opposition to monarchy, we forgot that the temple of tyranny has two doors. We bolted one of them by proper restraints; but we left the other open, by neglecting to guard against the effects of our own ignorance and licentiousness.

594Most of the present difficulties of this country arise from the weakness and other defects of our governments.”

595 Storing, What the Anti-Federalists Were For, xlvi.

596 II, 347. See also II, 359-360: “To the iron hand of tyranny, which was lifted up against her, she manifested,

indeed, an intrepid superiority. She broke in pieces the fetters, which were forged for her, and showed that she was unassailable by force. But she was environed with dangers of another kind, and springing from a very different source. While she kept her eye steadily fixed on the efforts of oppression, licentiousness was secretly undermining the rock on which she stood.”

597 II, 359-360. 598 Webster, A Compendious Dictionary of the English Language, 12. 599 II, 360. 600 II, 360. 601 II, 360-361. 602 XVII, 222. 603 XVII, 194. 604 XVII, 168, see also XVII, 194, 195. 605 XV, 99-100. 606 XIV, 336. 607 XV, 190. 608 XIV, 232. 609 XV, 279. 610 II, 172. 611 XVII, 80.

612 This was fairly common among Federalist writers. For instance, Cassius spoke of Richard Henry Lee’s “licentious

pen” IX, 716; Atticus says: “The first of these factions [the populace] arises from the impatience and uneasiness, which they who compose it feel, under their embarrassed circumstances, which they commonly attribute to the rich men, and the officers of the State. From this uneasiness arises their licentious humour and their envy of the rich, and powerful…” Colleen A. Sheehan and Gary L. McDowell, Friends of the Constitution: Writings of the “Other” Federalists, 1787-1788 (Liberty Fund, 1998), 333.

613 XIV, 139. See also: III, 519: “Liberty, a word that has charms sufficient to captivate a generous mind, is revered in

the Constitution; and is totally different from licentiousness. Many have no other idea of liberty, but for everyone to

do as he pleases—to be as honest as he pleases—to be as knavish as he pleases—to revere the laws and authority of

the state as much as he pleases—and to traduce and revile the rulers as much as he pleases. Such a liberty, which to

our shame has for several years been our idol, ought to be done away and never more stop the progress of justice or

with its foul streams pollute this beautiful country. Every government which is worth having and supporting must

have a competent degree of power in it to answer the great ends of its creation—the happiness of the people, the

protection of their persons, and security of their property. A government without such a power is only a burden. That

government, provided for us by the concentered wisdom of the states, secures all our liberties that ought to be

secured.”

614 XIV, 94. 615 XIV, 139-140. 616 Colleen A. Sheehan and Gary L. McDowell, Friends of the Constitution: Writings of the “Other” Federalists, 1787-

1788 (Liberty Fund, 1998), 396.

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617 XVII, 195. 618 XVII, 195. 619 XVII, 222. 620 XVII, 195.

621 XVII, 195. Literal translation of Latin is mine.

622 XVII, 196. 623 XVII, 122. 624 XVII, 123. 625 XVII, 124. 626 XVII, 124. 627 XVII,124-125. 628 Sheehan and McDowell, Friends of the Constitution, 378. 629 Ibid., 375. 630 Ibid. 631 Ibid. 632 Ibid., 385. 633 XX, 740. 634 Sheehan and McDowell, Friends of the Constitution, 509. 635 Ibid., 507–508. 636 Gordon S. Wood, The Idea of America: Reflections on the Birth of the United States (Penguin, 2011), 162–168. 637 XVII, 223-224. 638 CANNOT FIND THE LOCATION OF THE QUOTE 639 Sheehan and McDowell, Friends of the Constitution, 507. 640 XVI, 472-473. 641 XVI, 473. 642 XV, 190-191. 643 XVI, 406. 644 XVI, 407. 645 Sheehan and McDowell, Friends of the Constitution, 391. 646 Noah Webster, A Collection of Essays and Fugitiv Writings: On Moral, Historical, Political and Literary Subjects

(Printed at Boston, for the author, by I. Thomas and E.T. Andrews, 1790), 105, http://books.google.com/books?id=pcIgAAAAMAAJ&dq=fugitiv%20writings%20webster&pg=PP11#v=onepage&q=fugitiv%20writings%20webster&f=false. 647 Ibid., 107. 648 Ibid., 112. 649 Ibid., 113. 650 Ibid., 115–116. 651 Ibid., 117. 652 Publius’s remarks in Federalist 44 are representative of this theme: “The extension of the prohibition to bills of

credit must give pleasure to every citizen in proportion to his love of justice, and his knowledge of the true springs of public prosperity. The loss which America has sustained since the peace, from the pestilent effects of paper money, on the necessary confidence between man and man; on the necessary confidence in the public councils; on the industry and morals of the people, and on the character of Republican Government, constitutes an enormous debt against the States chargeable with this unadvised measure, which must long remain unsatisfied; or rather an accumulation of guilt, which can be expiated no otherwise than by a voluntary sacrifice on the altar of justice, of the power which has been the instrument of it.” XV, 469. 653 Webster, A Collection of Essays and Fugitiv Writings, 198.

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654 Ibid., 114. 655 Ibid. 656 XIII, 433. 657 XV, 174-175. 658 XX, 838. 659 XIII, 103. 660 Storing, What the Anti-Federalists Were For, xxxii.

661 See, for instance, Cato: “In the present crisis of our public affairs I confess with the frankness [of] a free man

and the concern of a patriot, that I apprehend more danger from a licentious democracy, than from aristocratic oppression.” XIX, 396.

661Or Brutus (Federalist): “So prevalent is the spirit of democracy that there is ten times more danger of a national

government degenerating into licentious anarchy than of its ending in an aristocracy or a monarchy.” VII, 215-216.

661 662 I admit that one might make a case that a small handful of figures might have inclined towards this extreme,

but even so it would be difficult to argue that even someone like Alexander Hamilton thought that the federal government ought to take over all the policing powers and matters related to religion and education in the states. 663 See Oliver Ellsworth’s speech at the Philadelphia Convention and Federalist 39. 664 For instance, there are few major scholarly works to complement these two efforts: G. Alan Tarr,

Understanding State Constitutions (Princeton, N.J.: Princeton University Press, 2000); Willi Paul Adams, The First American Constitutions: Republican Ideology and the Making of the State Constitutions in the Revolutionary Era (Lanham, Md.: Rowman & Littlefield Publishers, 2001). 665 Michael P. Zuckert, “Federalism and the Founding: Toward a Reinterpretation of the Constitutional

Convention,” The Review of Politics 48, no. 2 (April 1, 1986): 166–210, doi:10.2307/1407128. 666 Noah Webster, A Compendious Dictionary of the English Language (Crown, 1970), 163. 667 Ibid., 111. 668 Ibid., 229. 669 Ibid., 63. 670 X, 1648. 671 VIII, 464. 672 VIII, 393. 673 X, 1578. 674 VIII, 421. 675 VIII, 463. 676 X, 1647-1648. 677 VIII, 393-394. 678 IX, 888. 679 XIV, 24-25. 680 XIV, 214. 681 XIV, 214. 682 XIV, 243. 683 XIV,224. 684 XIV, 224. 685 XIV, 226. 686 XIV, 229. 687 XIV, 228. 688 XIV, 217-218.

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689 XVII, 272. 690 XX, 1070. 691 XIX, 212. 692 XIX, 221. 693 XIX, 218. 694 XVII, 371 695 XIX, 213. 696 XV, 110-111. 697 XV, 111. 698 XV, 116. 699 XV, 116. 700 XV, 117. 701 XV, 235-236. 702 XV, 235-236. 703 XV, 235-236. 704 XV, 114. 705 XV, 114-115. 706 XX, 758. 707 XX, 758. 708 XX, 758. 709 XX, 759. 710 XIX, 411. 711 XVI, 434. 712 XIV, 57. 713 XIII, 334. 714 XIII, 334. 715 XIV, 61. 716 XIV, 319. 717 XVII, 249. 718 XVII, 170-171. 719 XVII, 249. 720 XV, 455. 721 XV, 1149. 722 XV, 456. 723 XV, 457. 724 XV, 508. 725 XV, 509-510. 726 XV, 510. 727 XV, 458. 728 II, 167-168. 729 II, 357. 730 June 18th, King Notes: Wilson. I do not apprehend that the General Govt. will swallow up that of the States-the

States and their separate Governments must be preserved-they will harmonize with the Genl. Govt. The U. S. are too extensive for one & a free Govt. No Despot has governed a Country so extensive. Persia is divided into 20 subordinate Govts. and the Roman Empire & Republic was divided between the Proconsuls. Alfred divided England into societies of 10. persons, 100 persons & into Towns and Counties. http://avalon.law.yale.edu/18th_century/king.asp#june18

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Madison’s Notes: Mr. WILSON observed that by a Natl. Govt. he did not mean one that would swallow up the State Govts. as seemed to be wished by some gentlemen. He was tenacious of the idea of preserving the latter. He thought, contrary to the opinion of [Col. Hamilton] that they might not only subsist but subsist on friendly terms with the former. They were absolutely necessary for certain purposes which the former could not reach. All large Governments must be subdivided into lesser jurisdictions. As Examples he mentioned Persia, Rome, and particularly the divisions & subdivisions of England by Alfred. http://avalon.law.yale.edu/18th_century/debates_619.asp It is also true, however, that when arguing against the equality of the Senate he referred on June 30th to “imaginary beings called states”: “It would be in the power then of less than 1/3 to overrule 2/3 whenever a question should happen to divide the States in that manner. Can we forget for whom we are forming a Government? Is it for men, or for the imaginary beings called States? Will our honest Constituents be satisfied with metaphysical distinctions?” http://avalon.law.yale.edu/18th_century/debates_630.asp 731 Colleen A. Sheehan and Gary L. McDowell, Friends of the Constitution: Writings of the “Other” Federalists, 1787-

1788 (Liberty Fund, 1998), 237–238. 732 II, 355 733 XV, 234-235. 734 II, 359. 735 II, 359. 736 Sheehan and McDowell, Friends of the Constitution, 387. 737 XIX, 491. 738 Sheehan and McDowell, Friends of the Constitution, 390. 739 Ibid., 388–389. 740 Ibid., 393. 741 Ibid., 388. 742 Ibid. 743 Ibid., 389. 744 XIV, 234. 745 XIV, 337. 746 XIV, 233. 747 Herbert J. Storing, What the Anti-Federalists Were For: The Political Thought of the Opponents of the Constitution: The Political Thought of the Opponents of the Constitution (University of Chicago Press, 2008), 33. 748 Ibid., 32. 749 Ibid., 33. 750 Yves Rene Marie Simon, Philosophy of Democratic Government (Notre Dame: University of Notre Dame Press, 1993), 50. See also: http://www3.nd.edu/Departments/Maritain/etext/pdg.htm 751 Ibid., 56–57. See also: http://www3.nd.edu/Departments/Maritain/etext/pdg.htm 752 XIII, 103-104. 753 XIII, 104. 754 XX, 788. 755 Colleen A. Sheehan and Gary L. McDowell, Friends of the Constitution: Writings of the “Other” Federalists, 1787-1788 (Liberty Fund, 1998), 387–388. 756 Ibid., 395–396. 757 Ibid., 396. 758 Ibid., 388. 759 Ibid., 388–389.

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760 Ibid., 391. 761 Ibid., 402–403. 762 Ibid., 403. 763 XIV, 139. 764 XV, 279. 765 XV, 245. 766 XIV, 92-93. 767 XVI, 368. 768 XIII, 563. 769 XIV, 337. 770 XIV, 337-338. 771 XIV, 338. 772 III, 542. 773 XV, 279. 774 III, 542. 775 XIV, 139-140. 776 XIV, 140. 777 XIV, 140. 778 XVII, 170. 779 XVII, 225. 780XVII, 81. 781 XVII, 81. 782 XVII, 170. 783 XVII, 249. 784 XVII, 81-82. 785 XVII, 223. 786 XVII, 198. 787 XVII, 223. 788 XVII, 82. 789 XVII, 247. 790 XVII, 248-249. 791 XVII, 248. 792 XVII, 168. 793 XVII, 171 794 XVII, 248-249 795 XVII, 170. 796 XVII, 170-171. 797 XVII, 171. 798 XVII, 171. 799 XVII, 171-172. 800 XVII, 169. 801 XVII, 169. 802 XVII, 248. 803 XVII, 250-251. 804 XVII, 251. 805 XVII, 80. 806 XVII, 249.

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807 http://avalon.law.yale.edu/18th_century/debates_619.asp

See also: Wilson. I do not apprehend that the General Govt. will swallow up that of the States-the States and their separate Governments must be preserved-they will harmonize with the Genl. Govt. The U. S. are too extensive for one & a free Govt. No Despot has governed a Country so extensive. Persia is divided into 20 subordinate Govts. and the Roman Empire & Republic was divided between the Proconsuls. Alfred divided England into societies of 10. persons, 100 persons & into Towns and Counties. http://avalon.law.yale.edu/18th_century/king.asp#june18

808 II, 351.

See also the Dallas version: “…in a country which, presenting a coast of 1500 miles to the Atlantic, is composed of 13 distinct and independent states, varying essentially in their situation and dimensions, and in the number and habits of their citizens. Their interests too, in some respects really different, and in many apparently so; but whether really or apparently, such is the constitution of the human mind, they make the same impression, and are prosecuted with equal vigor and perseverance.” II, 340.

809 II, 351. 810 II, 358. 811 II, 346. 812 II, 355. 813 II, 355-356. 814 II, 357. 815 II, 358. 816 II, 344. 817 II, 478. 818 II, 476. 819 II, 560. 820 Noah Webster, A Compendious Dictionary of the English Language (Crown, 1970), 283. 821 II, 356. 822 II, 356-357. 823 II, 357. 824 II, 357. 825 II, 361. 826 Sheehan and McDowell, Friends of the Constitution, 211. 827 II, 358-359. 828 II, 359. 829 II, 359. 830 Sheehan and McDowell, Friends of the Constitution, 241. 831 II, 352. 832 II, 581. 833 II, 582

834 Sheehan and McDowell, Friends of the Constitution, 506. 835 Ibid., 510. 836 Storing, What the Anti-Federalists Were For, xxx–xxxi. 837 XVII, 249. 838 Sheehan and McDowell, Friends of the Constitution, 510. 839 Herbert J. Storing, What the Anti-Federalists Were For: The Political Thought of the Opponents of the

Constitution: The Political Thought of the Opponents of the Constitution (University of Chicago Press, 2008), 83. 840 XIII, 335. 841 XVII, 275.

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842 XIV, 37. 843 Thomas L. Pangle, The Spirit of Modern Republicanism: The Moral Vision of the American Founders and the

Philosophy of Locke (University of Chicago Press, 1988), 33–34. 844 XX, 987. 845 Storing, What the Anti-Federalists Were For, 15. 846 XIII, 525. See also Chapter Four of this dissertation, particularly Brutus on rights. 847 XX, 236. 848 XX, 236. 849 XX, 236. 850 XX, 235. 851 Storing, What the Anti-Federalists Were For, 25. 852 V, 695. 853 V, 540. 854 V, 868. 855 IV, 383. 856 V, 694. 857 V, 742.

858 V, 579. 859 IV, 382. 860 V, 695. 861 IV, 304. 862 IV, 382. 863 V, 825. 864 V, 822. 865 V, 822-23. 866 IV, 324. 867 V, 515. 868 V, 579. 869 V, 720. 870 XIX, 222-223. 871 Martin Diamond, “Democracy and the Federalist: A Reconsideration of the Framers’ Intent,” The American

Political Science Review 53, no. 1 (March 1, 1959): 63, doi:10.2307/1951730. 872 XIII, 432. 873 XIV, 451. 874 XIV, 452. 875 XIV, 451. 876 XIV, 451. 877 Storing, What the Anti-Federalists Were For, xlvii. 878 II, 213. 879 Gordon S Wood and Va.) Institute of Early American History and Culture (Williamsburg, The Creation of the

American Republic, 1776-1787, (Chapel Hill: Published for the Institute of Early American History and Culture at Williamsburg, Va., by the University of North Carolina Press, 1969), 506 and following section. 880 II, 450. 881 II, 451-452. 882 II, 452. 883 XVI, 145; Federalist 57.

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884 Wood and Institute of Early American History and Culture (Williamsburg, The Creation of the American Republic,

1776-1787,, 409–410. 885 Ibid., 410. 886 Storing, What the Anti-Federalists Were For, 39. 887 Wood and Institute of Early American History and Culture (Williamsburg, The Creation of the American Republic,

1776-1787, 411. 888 Storing, What the Anti-Federalists Were For, xlvii. 889 XX, 1147. 890 Joseph M. Bessette, The Mild Voice of Reason: Deliberative Democracy and American National Government

(University of Chicago Press, 1997), 15. 891 XX, 774. 892 Storing, What the Anti-Federalists Were For, 29. 893 Ibid. 894 Ibid., 13. 895 II, 583. 896 XX, 1140. 897 XV, 389. 898 XIV, 55. 899 XVII, 249. 900 Bernard Bailyn, The Ideological Origins of the American Revolution (Cambridge, Mass.: Belknap Press of Harvard

University Press, 1992), viii. 901 “Transcript: Barack Obama’s Acceptance Speech : NPR,” NPR.org, accessed September 3, 2013,

http://www.npr.org/templates/story/story.php?storyId=94087570. 902 “Transcript: Mitt Romney’s Acceptance Speech  : NPR,” NPR.org, accessed September 3, 2013,

http://www.npr.org/2012/08/30/160357612/transcript-mitt-romneys-acceptance-speech.