the public good in the rhetoric of ratification
TRANSCRIPT
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.
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
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.
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.
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
1
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
2
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
3
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
4
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
5
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.
6
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
7
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
8
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
9
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
10
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.
11
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
12
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
13
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,
14
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
15
“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
16
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.
17
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
18
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
19
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
20
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
21
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
22
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.
23
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
24
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
25
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.
26
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
27
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.
28
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
29
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.
30
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-
31
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
32
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
33
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
34
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
35
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
36
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.
37
…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
38
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
39
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:
40
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
41
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
42
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
43
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
44
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
45
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
46
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
47
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
48
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
50
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
344
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
345
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
346
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
347
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
348
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.
349
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
350
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,
351
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.
352
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.
353
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.”
354
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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.
365
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.
367
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.
368
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 & 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.
370
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
378
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.
381
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.
382
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.