The following is a cross-post from Dumb Looks Still Free.
Anyone who has dropped by once or twice has read some of the 'Anti-Federalist' works and what were pointed out to be perceived problems in the Constitution both before and after the Bill of Rights were talked about. Unlike some of the portrayals by modern civics classes, the 'Anti-Federalists' could not all be heaped into one single pile. Some, very few, were against the need to strengthen the Nation by government or sought to do so by reverting to a Monarchy or Oligarchy. Truly the debt of the Revolution was causing unrest, and the winter of 1786-87 saw the Shaysites come very close to staging a successful attack to gather more than just personal arms together for those farmers and others in the rural areas who were being oppressed by high State taxation to pay off the State's debt for the Revolution. The more solvent southern States had fewer such problems, but were not immune to taxation based rebellion showing up. What was recognized was that some more centralized way of spreading the debt over the Nation and paying it off was necessary and that would require either strengthening the Confederation or creating a new form of government which was proposed at the Philadelphia Constitutional Convention of 1787.
The draft Constitution, pre-ratification, was the main item that people talked about and the number of publications on it were varied and spread far and wide. Criticism went from those who saw intrigue and conspiracy amongst the drafters, even to the point of questioning if George Washington was part of a cabal, to those who had basic agreement with the outline of the Constitution and had problems with what they saw were structural flaws. While some of the most trenchant and vitriolic observations were held by those who disagreed with the Constitution entirely, they did not rely on purely personal attacks to get their point across, but related the failures in human nature and the human condition to the Constitution and would often ask pointed questions about the fate of liberty and freedom if those without good will were to get in power. The Federalist camp would respond via Madison, Hamilton, Jay and others, but a number of the technical points brought up were never properly addressed, and even some of the longer term problems of post-Revolution generations not having the direct affinity to the struggle being enticed down paths other than those set in the Constitution.
Some of these insights remain keen observations about the human condition and the structural flaws that were not addressed during the ratification process or by the Bill of Rights nor by any subsequent amendment. That wide ranging conversation has been stopped in the modern era, and the assumption that freedom will always be with us and our liberty left to us are ones that are not true for the overwhelming majority of mankind then or now. Even with representative democracies in place in many, many Nations, the majority of humanity remains at peril to authoritarian governments, despots, dictators and tyrants. As these are our fellow man and part of the human condition, we must recognize that we, too, have the same failings that caused them to get such governments and that we are not immune from those same failings. Yet that is what so many do assume: that history has so blessed us that we may ignore it, scorn it, say that it is valueless and without merit. It is that history that allows one to speak that way, and by denying it the individual gives no honor to those who fought so that we may have that ability to speak and think without being put at peril by our government. The 'Anti-Federalist' and Federalist camps both have the antecedent of history and both groups use the voluminous works before their generation to help found their thoughts and bring critical thinking skills when looking at the Constitution. For all of that, it is one of the Revolutionaries that summed up our relationship to government the best, before Jefferson and Franklin had worked out the text of the Declaration of Independence. The commonness of thought shows clearly from the man who wrote that work mere months before:
Some writers have so confounded society with government,
as to leave little or no distinction between them;
whereas they are not only different, but have different origins.
Society is produced by our wants, and government by our wickedness;
the former promotes our POSITIVELY by uniting our affections,
the latter NEGATIVELY by restraining our vices. The one
encourages intercourse, the other creates distinctions.
The first a patron, the last a punisher.
That writers is Thomas Paine and the quote is from Common Sense (via the Gutenberg Project), written mere months before the Declaration and he would add a forward as it went to print to comment on the Declaration. Yet here is the first part of all the self-evident truths about man: that we create society and then create government to curb the excesses to which society is prone to have. This is neither new nor startling, and in Power, Faith and Fantasy, Michael Oren recounts how Common Sense was read in the Middle East, in many places by those visited by Americans visiting the region Antebellum. These are universal understandings and anyone, from any part of the earth from any Nation can understand what Thomas Paine put down. That is why having something be self-evident is just that: it depends on no single religion, race, ethnic practice nor indeed any one particular part of mankind as it is an expression that crosses ALL of mankind.
Jefferson would work out this understanding with Franklin into the following:
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, --That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.
This is the quintessential understanding of the Revolution - that society is the basis for creating government, and that society has the right to change, alter or abolish any government that abuses it. The Declaration would also include that huge portion after the upper two paragraphs that would state, in detail, what each and every abuse was. This is necessary as it shows an understanding of the rights of citizens under the Crown and the rights of ANY citizen under ANY form of government, and why a government that abuses those rights and the liberty of the populace is harmful to it and worthy of being changed or abolished. Neither Common Sense or the Declaration of Independence are political documents or manifestos: they are documents showing the basic and foundational concepts of how governments are made, why they are made and what the best form of government should be and that any form is absolutely beholden to society... not the other way around.
Coming through the Revolution and through the Confederation, then, there is a basis of understanding in the New Nation that is held across the Colonies. It may not have been there before the Revolution but was definitely there after it. Yet the basic humanity of these documents left the New Nation that had two distinct views of humanity, itself, at odds with each other. One would see all men as created equal and the other portion would not do so: the cleft hewn by slavery would remain a dark chasm that the Constitution would attempt to bridge, and offer strange paradoxes in what the rights of men were and were not. That place is a good one to start when seeing how the 'Anti-Federalists' were not just against the Constitution, but held a form of rigor to it based on commonly read and understood works at the time. Here is Brutus talking about this in Brutus III on 15 NOV 1787:
The words are "representatives and direct taxes, shall be apportioned among the several states, which may be included in this union, according to their respective numbers, which shall be determined by adding to the whole number of free persons, including those bound to service for a term of years, and excluding Indians not taxed, three fifths of all other persons." — What a strange and unnecessary accumulation of words are here used to conceal from the public eye. what might have been expressed in the following concise manner. Representatives are to be proportioned among the states respectively, according to the number of freemen and slaves inhabiting them, counting five slaves for three free men.
"In a free state." says the celebrated Montesquieu, "every man. who is supposed to be a free agent, ought to be concerned in his own government. therefore the legislature should reside in the whole body of the people, or their representatives." But it has never been alledged that those who are not free agents, can, upon any rational principle, have any thing to do in government, either by themselves or others. If they have no share in government. why is the number of members in the assembly, to be increased on their account? Is it because in some of the states, a considerable part of the property of the inhabitants consists in a number of their fellow men, who are held in bondage, in defiance of every idea of benevolence, justice, and religion, and contrary to all the principles of liberty, which have been publickly avowed in the late glorious revolution? If this be a just ground for representation, the horses in some of the states, and the oxen in others, ought to be represented — for a great share of property in some of them. consists in these animals; and they have as much controul over their own actions, as these poor unhappy creatures, who are intended to be described in the above recited clause, by the words, "all other persons." By this mode of apportionment, the representatives of the different pans of the union, will be extremely unequal: in some of the southern states, the slaves are nearly equal in number to the free men; and for all these slaves, they will be entitled to a proportionate share in the legislature — this will give them an unreasonable weight in the government, which can derive no additional strength, protection, nor defence from the slaves, but the contrary. Why then should they be represented? What adds to the evil is, that these states are to be permitted to continue the inhuman traffic of importing slaves, until the year 1808 — and for every cargo of these unhappy people, which unfeeling. unprincipled, barbarous, and avaricious wretches, may tear from their country, friends and tender connections, and bring into those states, they are to be rewarded by having an increase of members in the general assembly.
Here, then, is a technical complaint and that plays out for the greater society as Brutus points out that free citizens will be outweighed by slaves who are not considered citizens because of the disproportional number of slaves held in the southern states. That dichotomy, that those free with rights are weighted against those without them and their owners points to the flaw in the Constitution that would lead to further problems as the Nation grew. Industry in the North, however, would prove a great attraction to foreigners willing to become citizens and to slaves seeking to be free: the ready jobs at this point in the industrial revolution would be a great beacon and start to outweigh the monetary power of plantations in the South. The reason that this was entered into the Constitution was to keep the country from having a rift while it was still insolvent, and the can of actually backing concepts of human personal freedom was kicked down the road with the hope that society would cure this ill peacefully.
Yes there is hyperbole and pointed attacks, but the criticism is sound and justified. While Brutus would cite Montesquieu others could cite John Locke in this instance as well in his Second Treatise published in 1690:
21. The natural liberty of man is to be free from any superior power on earth, and not to be under the will or legislative authority of man, but to have only the law of Nature for his rule. The liberty of man in society is to be under no other legislative power but that established by consent in the commonwealth, nor under the dominion of any will, or restraint of any law, but what that legislative shall enact according to the trust put in it. Freedom, then, is not what Sir Robert Filmer tells us: "A liberty for every one to do what he lists, to live as he pleases, and not to be tied by any laws"; but freedom of men under government is to have a standing rule to live by, common to every one of that society, and made by the legislative power erected in it. A liberty to follow my own will in all things where that rule prescribes not, not to be subject to the inconstant, uncertain, unknown, arbitrary will of another man, as freedom of nature is to be under no other restraint but the law of Nature.
22. This freedom from absolute, arbitrary power is so necessary to, and closely joined with, a man's preservation, that he cannot part with it but by what forfeits his preservation and life together. For a man, not having the power of his own life, cannot by compact or his own consent enslave himself to any one, nor put himself under the absolute, arbitrary power of another to take away his life when he pleases. Nobody can give more power than he has himself, and he that cannot take away his own life cannot give another power over it. Indeed, having by his fault forfeited his own life by some act that deserves death, he to whom he has forfeited it may, when he has him in his power, delay to take it, and make use of him to his own service; and he does him no injury by it. For, whenever he finds the hardship of his slavery outweigh the value of his life, it is in his power, by resisting the will of his master, to draw on himself the death he desires.
23. This is the perfect condition of slavery, which is nothing else but the state of war continued between a lawful conqueror and a captive, for if once compact enter between them, and make an agreement for a limited power on the one side, and obedience on the other, the state of war and slavery ceases as long as the compact endures; for, as has been said, no man can by agreement pass over to another that which he hath not in himself a power over his own life.
I confess, we find among the Jews, as well as other nations, that men did sell themselves; but it is plain this was only to drudgery, not to slavery; for it is evident the person sold was not under an absolute, arbitrary, despotical power, for the master could not have power to kill him at any time, whom at a certain time he was obliged to let go free out of his service; and the master of such a servant was so far from having an arbitrary power over his life that he could not at pleasure so much as maim him, but the loss of an eye or tooth set him free (Exod. 21.).
When one is using only the restraint of the Law of Nature, they are not acting within the agreed-upon bounds of civilization. Man can and does revert to these basic Laws when threatened as they are the basis for survival: when attacked you have the right of self-defense and no law made by man can take that from you. When one takes arbitrary power over the life of another, in that area they have reverted to the Law of Nature - red of tooth and claw, and the only way out is to revert to such savagery to attack... and often have one's life ended, but no longer as a slave but a man declaring himself to be free. Man does not need legislation to mandate such freedom or restrict it: anything done that way is a trust amongst the individuals in society to act in a certain way and to foreswear reverting to the Law of Nature so as to form society. Government may not change that, only restrict the excesses and ensure that the Law of Nature is kept from full sway, but recognize that the ability of each individual to be free and have liberty is beyond any measure that can be taken by government. In comparison the legal contract of servitude to a given individual or State is cited, with the Jewish people in Egypt doing work for the Pharoah under the civil laws, and the Jews were treated with doctors and given care while the slaves were not. Working a set time for civil works is seen as different than slavery, although, to Moses, the corrupting power of the State changing the ways of his people was one that needed to be walked away from lest his people get lost in the throngs of Egypt.
In Federalist No. 54 on 12 FEB 1788, James Madison skillfully does not take up the question, but presents a generic Southern view of slavery that he, himself, admits that one cannot view slaves as both property and person and yet comes to accept that this is the way forward. Still he does not answer all the questions of Brutus, but the most basic chasm from the view of Locke could not be breached because it is foundational. The attempts to do so were long and I will present the main one, here, as I did that of Brutus previously:
All this is admitted, it will perhaps be said; but does it follow, from an admission of numbers for the measure of representation, or of slaves combined with free citizens as a ratio of taxation, that slaves ought to be included in the numerical rule of representation? Slaves are considered as property, not as persons. They ought therefore to be comprehended in estimates of taxation which are founded on property, and to be excluded from representation which is regulated by a census of persons. This is the objection, as I understand it, stated in its full force. I shall be equally candid in stating the reasoning which may be offered on the opposite side.
"We subscribe to the doctrine," might one of our Southern brethren observe, "that representation relates more immediately to persons, and taxation more immediately to property, and we join in the application of this distinction to the case of our slaves. But we must deny the fact that slaves are considered merely as property, and in no respect whatever as persons. The true state of the case is that they partake of both these qualities: being considered by our laws, in some respects, as persons, and in other respects as property. In being compelled to labor, not for himself, but for a master; in being vendible by one master to another master; and in being subject at all times to be restrained in his liberty and chastised in his body, by the capricious will of another—the slave may appear to be degraded from the human rank, and classed with those irrational animals which fall under the legal denomination of property. In being protected, on the other hand, in his life and in his limbs, against the violence of all others, even the master of his labor and his liberty; and in being punishable himself for all violence committed against others—the slave is no less evidently regarded by the law as a member of the society, not as a part of the irrational creation; as a moral person, not as a mere article of property. The federal Constitution, therefore, decides with great propriety on the case of our slaves, when it views them in the mixed character of persons and of property. This is in fact their true character. It is the character bestowed on them by the laws under which they live; and it will not be denied that these are the proper criterion; because it is only under the pretext that the laws have transformed the Negroes into subjects of property that a place is disputed them in the computation of numbers; and it is admitted that if the laws were to restore the rights which have been taken away, the Negroes could no longer be refused an equal share of representation with the other inhabitants.
Here, then, is the concept that is contrary to Locke and others that have looked at humanity and liberty - that laws cannot reduce man to property nor remove from him his liberty save for transgression against society. People cannot be adjudged as property at all, and yet this concept that the law can create a class that is property is one that is ill founded as it repudiates the concept that all men are created equal as a self-evident truth. Being 'protected' by a Master is no boon as it removes the right to decide who and how one is defended for oneself. We do allow that the negative liberty of personal war and war of the State are given to the State, but those are negative liberties. The positive liberty of self-defense cannot be shorn by an act of law from the individual EVER. No matter what the argument about taxation, later given, or comparative wealth of the States, the plain instance is not enough to outweigh the essential liberty of having cognizance to oneself and using one's liberty without threat of punishment or coercion to act on behalf of another man. Indeed, if the States could gain a great boon by liberating its citizens to get FULL CITIZENSHIP and greater representation and say in government then why does it not do so? The rationale for slavery is ill-founded, but to bring that up in the Constitution would be to destroy the economic class that was vital to the survival of the Union in the south. Madison acquiesces that the Constitutional 3/5 is about as good as can be done. After presenting the numerous arguments this is how he follows up:
Such is the reasoning which an advocate for the Southern interests might employ on this subject; and although it may appear to be a little strained in some points, yet on the whole, I must confess that it fully reconciles me to the scale of representation which the convention have established.
In one respect, the establishment of a common measure for representation and taxation will have a very salutary effect. As the accuracy of the census to be obtained by the Congress will necessarily depend, in a considerable degree on the disposition, if not on the co-operation of the States, it is of great importance that the States should feel as little bias as possible to swell or to reduce the amount of their numbers. Were their share of representation alone to be governed by this rule, they would have an interest in exaggerating their inhabitants. Were the rule to decide their share of taxation alone, a contrary temptation would prevail. By extending the rule to both objects, the States will have opposite interests which will control and balance each other and produce the requisite impartiality.
That is the balancing act: to hope that the steady increase in the number of slaves will finally change the equation down the road and that by having the federal government involved, that level of recognitions will continue to point out the problem that is created by the non-recognition of basic human liberty.
It did, too.
The dead of the Civil War attest to it.
That is one of the not so minor problems in the Constitution, and it would have a long-term effect. That, however, was not the only one cited, although it was the most egregious of them. Another main contention is the nature of man, himself, as seen through the ages, and how government can be made to protect against such corruption over time. This is a very hard point to address as society does create organs known as government, and those very organs are corruptible due to the whims of society, itself: the Punisher to keep societal excesses at bay may also become the inquisitor or persecutor due to society, also. Just, moderate and fair government that will not be swayed by the moment, but uphold longer term values and change very slowly is extremely difficult to achieve, and when it can be changed easily it becomes a tool for those in it to use as they wish. On 03 JAN 1788 Federal Farmer III takes this up, and examines where previous Nations have fallen into traps of authoritarian and despotic government and how that relates to the Constitution as it stood:
We may amuse ourselves with names; but the fact is, men will be governed by the motives and temptations that surround their situation. Political evils to be guarded against are in the human character, and not in the name of patrician or plebian. Had 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. True liberty stands in need of a fostering hand; from the days of Adam she has found but one temple to dwell in securely; she has laid the foundation of one, perhaps her last, in America; whether this is to be compleated and have duration, is yet a question. Equal liberty never yet found many advocates among the great: it is a disagreeable truth, that power perverts mens views in a greater degree, than public employments inform their understandings - they become hardened in certain maxims, and more lost to fellow feelings. Men may always be too cautious to commit alarming and glaring iniquities: but they, as well as systems, are liable to be corrupted by slow degrees. Junius well observes, we are not only to guard against what men will do, but even against what they may do. Men in high public offices are in stations where they gradually lose sight of the people, and do not often think of attending to them, except when necessary to answer private purposes.
The body of the people must have this true representative security placed some where in the nation; and in the United States, or in any extended empire, I am fully persuaded can be placed no where, but in the forms of a federal republic, where we can divide and place it in several state or district legislatures, giving the people in these the means of opposing heavy internal taxes and oppressive measures in the proper stages. A great empire contains the amities and animosities of a world within itself. We are not like the people of England, one people compactly settled on a small island, with a great city filled with frugal merchants, serving as a common centre of liberty and union: we are dispersed, and it is impracticable for any but the few to assemble in one place: the few must be watched, checked, and often resisted - tyranny has ever shewn a prediliction to be in close amity with them, or the one man. Drive it from kings and it flies to senators, to dicemvirs, to dictators, to tribunes, to popular leaders, to military chiefs, &c.
De Lo[l]me well observes, that in societies, laws which were to be equal to all are soon warped to the private interests of the administrators, and made to defend the usurpations of a few. The English, who had tasted the sweets of equal laws, were aware of this, and though they restored their king, they carefully delegated to parliament the advocates of freedom.
I have often lately heard it observed, that it will do very well for a people to make a constitution, and ordain, that at stated periods they will chuse, in a certain manner, a first magistrate, a given number of senators and representatives, and let them have all power to do as they please. This doctrine, however it may do for a small republic, as Connecticut, for instance, where the people may chuse so many senators and representatives to assemble in the legislature, in an eminent degree, the interests, the views, feelings, and genuine sentiments of the people themselves, can never be admitted in an extensive country; and when this power is lodged in the hands of a few, not to limit the few, is but one step short of giving absolute power to one man - in a numerous representation the abuse of power is a common injury, and has no temptation - among the few, the abuse of power may often operate to the private emolument of those who abuse it.
Federal Farmer is, perhaps, the strongest of the Constitutional critics as the citations given are those to problems in humanity, itself, not to any single system of government. He was, in part, responding to Alexander Hamilton in Federalist No. 26 on 22 DEC 1787, who was examining this issue here with regards to government using the military, but the larger case of any power grab does apply:
Schemes to subvert the liberties of a great community require time to mature them for execution. An army, so large as seriously to menace those liberties, could only be formed by progressive augmentations; which would suppose not merely a temporary combination between the legislature and executive, but a continued conspiracy for a series of time. Is it probable that such a combination would exist at all? Is it probable that it would be persevered in, and transmitted along through all the successive variations in a representative body, which biennial elections would naturally produce in both houses? Is it presumable that every man the instant he took his seat in the national Senate or House of Representatives would commence a traitor to his constituents and to his country? Can it be supposed that there would not be found one man discerning enough to detect so atrocious a conspiracy, or bold or honest enough to apprise his constituents of their danger? If such presumptions can fairly be made, there ought at once to be an end of all delegated authority. The people should resolve to recall all the powers they have heretofore parted with out of their own hands, and to divide themselves into as many States as there are counties in order that they may be able to manage their own concerns in person.
If such suppositions could even be reasonably made, still the concealment of the design for any duration would be impracticable. It would be announced by the very circumstance of augmenting the army to so great an extent in time of profound peace. What colorable reason could be assigned in a country so situated for such vast augmentations of the military force? It is impossible that the people could be long deceived; and the destruction of the project and of the projectors would quickly follow the discovery.
It has been said that the provision which limits the appropriation of money for the support of an army to the period of two years would be unavailing, because the executive, when once possessed of a force large enough to awe the people into submission, would find resources in that very force sufficient to enable him to dispense with supplies from the acts of the legislature. But the question again recurs, upon what pretense could he be put in possession of a force of that magnitude in time of peace? If we suppose it to have been created in consequence of some domestic insurrection or foreign war, then it becomes a case not within the principles of the objection; for this is leveled against the power of keeping up troops in time of peace. Few persons will be so visionary as seriously to contend that military forces ought not to be raised to quell a rebellion or resist an invasion; and if the defense of the community under such circumstances should make it necessary to have an army so numerous as to hazard its liberty, this is one of those calamities for which there is neither preventative nor cure. It cannot be provided against by any possible form of government; it might even result from a simple league offensive and defensive, if it should ever be necessary for the confederates or allies to form an army for common defense.
But it is an evil infinitely less likely to attend us in a united than in a disunited state; nay, it may be safely asserted that it is an evil altogether unlikely to attend us in the former situation. It is not easy to conceive a possibility that dangers so formidable can assail the whole Union as to demand a force considerable enough to place our liberties in the least jeopardy, especially if we take into our view the aid to be derived from the militia, which ought always to be counted upon as a valuable and powerful auxiliary. But in a state of disunion (as has been fully shown in another place), the contrary of this supposition would become not only probable, but almost unavoidable.
Of course no form of government can protect against such a scheme: that is the point that Hamilton brings up and Federal Farmer AGREES to it, and then points out that the necessary prerequisites are not so hard to find at all in history and require far less than Hamilton is supposing. Federal Farmer in Federal Farmer I on 08 OCT 1787 looks at the different types of governments that can work to secure liberty, and again I will reformat just a bit for better reading:
The first interesting question, therefore suggested, is, how far the states can be consolidated into one entire government on free principles. In considering this question extensive objects are to be taken into view, and important changes in the forms of government to be carefully attended to in all their consequences. The happiness of the people at large must be the great object with every honest statesman, and he will direct every movement to this point. If we are so situated as a people, as not to be able to enjoy equal happiness and advantages under one government, the consolidation of the states cannot be admitted.
There are three different forms of free government under which the United States may exist as one nation; and now is, perhaps, the time to determine to which we will direct our views. 1. Distinct republics connected under a federal head. In this case the respective state governments must be the principal guardians of the peoples rights, and exclusively regulate their internal police; in them must rest the balance of government. The congress of the states, or federal head, must consist of delegates amenable to, and removable by the respective states: This congress must have general directing powers; powers to require men and monies of the states; to make treaties; peace and war; to direct the operations of armies, &c. Under this federal modification of government, the powers of congress would be rather advisory or recommendatory than coercive.
2. We may do away the federal state governments, and form or consolidate all the states into one entire government, with one executive, one judiciary, and one legislature, consisting of senators and representatives collected from all parts of the union: In this case there would be a complete consolidation of the states.
3. 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 complete consolidation, quoad certain objects only.
Respectively these are Confederation, Unitary Nation and Federation. Federal Farmer really doesn't advocate the first area, that of Confederation, as it is disruptive to commerce and gives rise to confusion to other Nations. The second is a one-way street and you must get it right the very first time or the Nation will fall to pieces with internal dissension and liberties will be lost when government tries to restrain such. Thus he comes to advocate the Federation concept:
The third plan, or partial consolidation, is, in my opinion, the only one that can secure the freedom and happiness of this people. I once had some general ideas that the second plan was practicable, but from long attention, and the proceedings of the convention, I am fully satisfied, that this third plan is the only one we can with safety and propriety proceed upon. Making this the standard to point out, with candor and fairness, the parts of the new constitution which appear to be improper, is my object. The convention appears to have proposed the partial consolidation evidently with a view to collect all powers ultimately, in the United States into one entire government; and from its views in this respect, and from the tenacity of the small states to have an equal vote in the senate, probably originated the greatest defects in the proposed plan.
What the complaint with the proposed Constitution is, derives from its structure not being one to ensure the long-term power structure held in tension between the States, National government and the people. By vesting so much into the federal government and not giving the States and people sufficient say in the use of those powers, the final government may start as one thing and then slowly morph into the central, Unitary government model. This will be his main point of worry during his writings on the Constitution.
Between Federalist No. 26 and Federal Farmer VIII there is Federal Farmer VII on 31 DEC 1787, which looks at the class based structural problems in the Constitution. This is a tough section in the original and I will break it up a bit to get it a bit more readable, but the order and language is left as-is:
1. The representation is unsubstantial and ought to be increased. In matters where there is much room for opinion, you will not expect me to establish my positions with mathematical certainty; you must only expect my observations to be candid, and such as are well founded in the mind of the writer. I am in a field where doctors disagree; and as to genuine representation, though no feature in government can be more important, perhaps, no one has been less understood, and no one that has received so imperfect a consideration by political writers. The ephori in Sparta, and the tribunes in Rome, were but the shadow; the representation in Great-Britain is unequal and insecure. In America we have done more in establishing this important branch on its true principles, than, perhaps, all the world besides: yet even here, I conceive, that very great improvements in representation may be made. In fixing this branch, the situation of the people must be surveyed, and the number of representatives and forms of election apportioned to that situation. 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. It is the first of all among the political balances, to preserve in its proper station each of these classes. We talk of balances in the legislature, and among the departments of government; we ought to carry them to the body of the people. Since I advanced the idea of balancing the several orders of men in a community, in forming a genuine representation, and seen that idea considered as chemerical, I have been sensibly struck with a sentence in the marquis Beccaria's treatise: this sentence was quoted by congress in 1774, and is as follows: - "In every society there is an effort continually tending to confer on one part the height of power and happiness, and to reduce the others to the extreme of weakness and misery; the intent of good laws is to oppose this effort, and to diffuse their influence universally and equally." Add to this Montesquieu's opinion, that "in a free state every man, who is supposed to be a free agent, ought to be concerned in his own government: therefore, the legislative should reside in the whole body of the people, or their representatives." It is extremely clear that these writers had in view the several orders of men in society, which we call aristocratical, democratical, merchantile, mechanic, &c. and perceived the efforts they are constantly, from interested and ambitious views, disposed to make to elevate themselves and oppress others. Each order must have a share in the business of legislation 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 men from among themselves, and genuinely like themselves.
I wish you to take another idea along with you; we are not only to balance these natural efforts, but we are also to guard against accidental combinations; combinations founded in the connections of offices and private interests, both evils which are increased in proportion as the number of men, among which the elected must be, are decreased. To set this matter in a proper point of view, we must form some general ideas and descriptions of the different classes of men, as they may be divided by occupations and politically: the first class is the aristocratical. There are three kinds of aristocracy spoken of in this country - the first is a constitutional one, which does not exist in the United States in our common acceptation of the word. Montesquieu, it is true, observes, that where a part of the persons in a society, for want of property, age, or moral character, are excluded any share in the government, the others, who alone are the constitutional electors and elected, form this aristocracy; this according to him, exists in each of the United States, where a considerable number of persons, as all convicted of crimes, under age, or not possessed of certain property, are excluded any share in the government; the second is an aristocratic faction, a junto of unprincipled men, often distinguished for their wealth or abilities, who combine together and make their object their private interests and aggrandizement; the existence of this description is merely accidental, but particularly to be guarded against. The third is the natural aristocracy; this term we use to designate a respectable order of men, the line between whom and the natural democracy is in some degree arbitrary; we may place men on one side of this line, which others may place on the other, and in all disputes between the few and the many, a considerable number are wavering and uncertain themselves on which side they are, or ought to be. In my idea of our natural aristocracy in the United States, I include 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 - the other persons and orders in the community form the natural democracy; this includes in general the yeomanry, the subordinate officers, civil and military, the fishermen, mechanics and traders, many of the merchants and professional men. It is easy to perceive that men of these two classes, the aristocratical, and democratical, with views equally honest, have sentiments widely different, especially respecting public and private expences, salaries, taxes, &c. Men of the first class associate more extensively, have a high sense of honor, possess abilities, ambition, and general knowledge: men of the second class 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, while that of the former is principally on the emoluments of large estates, and of the chief offices of government. Not only the efforts of these two great parties are to be balanced, but other interests and parties also, which do not always oppress each other merely for want of power, and for fear of the consequences; though they, in fact, mutually depend on each other; yet such are their general views, that the merchants alone would never fail to make laws favourable to themselves and oppressive to the farmers, &c. the farmers alone would act on like principles; the former would tax the land, the latter the trade. The manufacturers are often disposed to contend for monopolies, buyers make every exertion to lower prices, and sellers to raise them; men who live by fees and salaries endeavour to raise them, and the part of the people who pay them, endeavour to lower them; the public creditors to augment the taxes, and the people at large to lessen them.
Thus, in every period of society, and in all the transactions of men, we see parties verifying the observation made by the Marquis; and those classes which have not their centinels in the government, in proportion to what they have to gain or lose, must infallibly be ruined. Efforts among parties are not merely confined to property; they contend for rank and distinctions; all their passions in turn are enlisted in political controversies - Men, elevated in society, are often disgusted with the changeableness of the democracy, and the latter are often agitated with the passions of jealousy and envy: the yeomanry possess a large share of property and strength, are nervous and firm in their opinions and habits - the mechanics of towns are ardent and changeable, honest and credulous, they are inconsiderable for numbers, weight and strength, not always sufficiently stable for the supporting free governments; the fishing interest partakes partly of the strength and stability of the landed, and partly of the changeableness of the mechanic interest. As to merchants and traders, they are our agents in almost all money transactions; give activity to government, and possess a considerable share of influence in it. It has been observed by an able writer, that frugal industrious merchants are generally advocates for liberty. It is an observation, I believe, well founded, that the schools produce but few advocates for republican forms of government; gentlemen of the law, divinity, physic, &c. probably form about a fourth part of the people; yet their political influence, perhaps, is equal to that of all the other descriptions of men; if we may judge from the appointments to Congress, the legal characters will often, in a small representation, be the majority; but the more the representatives are encreased, the more of the farmers, merchants, &c. will be found to be brought into the government.
Yes, as far back as 1787 the schools and areas of higher education were already seen as enemies of republican forms of government, instilling, as they do, beliefs of differences amongst men and that the higher callings to those forms of education raise individuals above their fellow man. Education gives one the ability to discern distinctions, identify them and classify them, and thus feel as if action needs to be taken on them. As pointed out by Thomas Paine, that is the role of government, the Punisher, and those who become enamored of education and the feeling that this ability to discern, categorize and qualify things is a supreme virtue are those that feel they should govern because of that ability. Federal Farmer points to this as a problem as the common man is NOT represented by the educated classes, by and large. Those of the Yeomanry, mechanics, merchants, tradecrafters, farmers, etc. must be brought in on a basis that allows their weight in society to be felt in government. These are, famously, the people with little time on their hands as they are busy 'working for a living', thus the separation of the educated and the well-off to positions of power become endemic over time. To solve that problem, greater representation is needed, not less: expanding the proportion of the House is an answer to the problem of too few representatives to include those we would consider the working class and small businessmen. By giving the power of the Punisher to the educated and wealthy, they begin to feel as if they DESERVE to have such power.
When using representative democratic means to run a republic, this is a problem. It can easily be abused via such democratic means to shift the basis of power within the Nation. To him that is a flaw within the system that is not addressed by the Constitution in a robust manner.
Federal Farmer does not see himself as an 'Anti-Federalist' but as a Federalist critic offering insight and advice on the Constitution and the flaws of it as he sees them. In Federal Farmer V on 13 OCT 1787 he lauds the many things that the Constitution embodies and in Federal Farmer 6 on 25 DEC 1787 he castigates those who take on Federalist. Now, bear that in mind when you see this from his No. 6 to see who he puts in which camp:
Some of the advocates, I believe, will agree to recommend good amendments; but some of them will only consent to recommend indefinite, specious, but unimportant ones; and this only with a view to keep the door open for obtaining in some favourable moment, their main object, a complete consolidation of the states, and a government much higher toned, less republican and free than the one proposed. If necessity, therefore, should ever oblige us to adopt the system, and recommend amendments, the true friends of a federal republic must see they are well defined, and well calculated, not only to prevent our system of government moving further from republican principles and equality, but to bring it back nearer to them — they must be constantly on their guard against the address, flattery, and manoeuvres of their adversaries.
The gentlemen who oppose the constitution, or contend for amendments in it, are frequently, and with much bitterness, charged with wantonly attacking the men who framed it. The unjustness of this charge leads me to make one observation upon the conduct of parties, &c. Some of the advocates are only pretended federalists; in fact they wish for an abolition of the state governments. Some of them I believe to be honest federalists, who wish to preserve substantially the state governments united under an efficient federal head; and many of them are blind tools without any object. Some of the opposers also are only pretended federalists, who want no federal government, or one merely advisory. Some of them are the true federalists, their object, perhaps, more clearly seen, is the same with that of the honest federalists; and some of them, probably, have no distinct object. We might as well call the advocates and opposers tories and whigs, or any thing else, as federalists and anti-federalists. To be for or against the constitution, as it stands, is not much evidence of a federal disposition; if any names are applicable to the parties, on account of their general politics, they are those of republicans and anti-republicans. The opposers are generally men who support the rights of the body of the people, and are properly republicans. The advocates are generally men not very friendly to those rights, and properly anti-republicans.
To be straightforward, he puts many on the 'Federalist' side in the anti-republican camp due to the number of 'pretend federalists' and those who are tools of the convention. Included in that are the learned men involved, which he gives due honesty for their work and position to retain the higher level of State government position in the Union. These are the anti-republicans. Those that we term 'Anti-Federalist' today, who also have a number of scoundrels amongst them, but who uphold a more republican form of government by placing the States in a major check role in the National government. Thus, to him. our 'Federalist' designation goes to those wanting to shift the base of power out of the States and into the federal government, which he terms 'anti-republican' at its base. Those supporting keeping a primary role for the States in National government are 'republicans'. From his era, having the Swiss Canton system and Dutch system, as well as that of Venice to examine, we get a feeling that the ability of localized or regional government to hold National government in check is a sign-post of being a 'republican'. It is not only the divided powers but where the power resides within the Nation as a whole.
This is a second societal flaw that comes up from Federal Farmer, an ardent federalist of, to his eyes, the republican stripe, which, unfortunately, lands him in our 'Anti-Federalist' venue instead of the 'Federalist Critic' venue. That is due to those who seek to classify and categorize people and then add definitions to the labels at the tops of the categories and classifications, so as to impugn a set of distinct characteristics to those that, in theory, share commonality at some level. But that is not the case, and Federal Farmer points this out as well as Brutus: Some 'Anti-Federalists' were scoundrels, and there were similar on the 'Federalist' side, but there is not broad classification that can be given to the 'Anti-Federalists' as a whole, as they do not all share a common set of ideals, goals, objectives, objections and thought.
In No. V Federal Farmer puts in his areas of agreement on the Constitution, in broad scope:
There are, however, in my opinion, many good things in the proposed system. It is founded on elective principles, and the deposits of powers in different hands, is essentially right.-The guards against those evils we have experienced in some states in legislation are valuable indeed: but the value of every feature in this system is vastly lessened for the want of that one important feature in a free government, a representation of the people. Because 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 into the administration of government.
The objection he raises here, and later more explicitly, is the lack of cross-class representation. In the next two centuries this idea would get twisted to radicalist means to subvert it, so that class warfare would be 'waged' to help those doing the waging, namely politicians. The point taken by Federal Farmer is that it is those drawn to the political class from the highly educated and well off upper echelons of society that are the problem and need to be balanced out by the average working man or Yeoman class. To him this gives a solid basis for republican government: representation beyond just those who can afford time off to be in office. This is representative democracy of the cross-section of the population, not just by winning district votes, and is a damned hard thing to address as it leads to proportion given by class instead of by community. Yet the fear is well justified: those with college education, law degrees and having wealth have been a large segment of the continually re-elected political class in the 20th and now early 21st century. To address the defect is to acknowledge that the system is set up to be available to those who do not sacrifice a livelihood to represent a district. We have tried laws to address this, which ultimately serve those in power and not their challengers. We have heard of 'term limits' which works as a mechanism for immediate causes, but then that does not address the high barrier to entry problem that would still exist under a term-limited system: you are exchanging one set of rich, over-educated elites for another. In No. V he states this clearly:
Our countrymen are entitled to an honest and faithful government; to a government of laws and not of men; and also to one of their chusing-as a citizen of the country, 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.
This is one of the few times he can offer no concrete solutions as it is the central problem of government, pointed out by Hamilton in Federalist No. 26 - any governmental form will have this problem. With that said the concept that was being put forth was that representation had to truly represent a cross-section of the population, not just those who had gotten degrees or were wealthy, or both. Thus the worries become two-fold and self-reinforcing: that the republic's structure would not be solidly checked by the States and that those who would get elected would be unrepresentative of the population as a whole. Together these form a basis for a power shift from the States to the federal government. As I have examined before, this is part of what started with the 'Progressive' movement at the end of the 19th century, and has led to our current state of affairs in the Nation. Do remember that this is an 'Anti-Federalist' criticizing the lack of federalism and the structure of the republic that is being formed a century before the 'Progressive' movement got started.
What this comes to is the largest, single, item cited by a large swath of 'Anti-Federalists': that representation was neither wide nor deep enough to represent the Nation in the federal government. One of the earliest writings on the problems seen in 1787, with the Shaysites and other rebellions, was done by Z. on 16 MAY 1787, who picks up after giving a brief overview on the troubles seen and where the Constitutional Convention is headed:
To remedy these evils, some have weakly imagined that it is necessary to annihilate the several States, and vest Congress with the absolute direction and government of the continent, as one single republic. This, however, would be impracticable and mischievous. In so extensive a country many local and internal regulations would be required, which Congress could not possibly attend to, and to which the States individually are fully competent; but those things which alike concern all the States, such as our foreign trade and foreign transactions, Congress should be fully authorised to regulate, and should be invested with the power of enforcing their regulations.
The ocean, which joins us to other nations, would seem to be the scene upon which Congress might exert its authority with the greatest benefit to the United States, as no one State can possibly claim any exclusive right in it. It has been long seen that the States individually cannot, with any success, pretend to regulate trade. The duties and restrictions which one State imposes, the neighbouring States enable the merchants to elude; and besides, if they could he enforced, it would be highly unjust, that the duties collected in the port of one State should be applied to the sole use of that State in which they are collected, whilst the neighbouring States, who have no ports for foreign commerce, consume a part of the goods imported, and thus in effect pay a part of the duties. Even if the recommendation of Congress had been attended to, which proposed the levying for the use of Congress five per centum on goods imported, to be collected by officers to be appointed by the individual States, it is more than probable that the laws would have been feebly executed. Men are not apt to be sufficiently attentive to the business of those who do not appoint, and cannot remove or controul them; officers would naturally look up to the State which appointed them, and it is past a doubt that some of the States would esteem it no unpardonable sin to promote their own particular interest, or even that of particular men, to the injury of the United States.
Would it not then be right to vest Congress with the sole and exclusive power of regulating trade, of imposing port duties, of appointing officers to collect these duties, of erecting ports and deciding all ques-tions by their own authority, which concern foreign trade and navigation upon the high seas? Some of those persons, who have conceived a narrow jealousy of Congress, and therefore have unhappily obstructed their exertions for the public welfare, may perhaps be startled at the idea, and make objections. To such I would answer, that our situation appears to be sufficiently desperate to justify the hazarding an experiment of any thing which promises immediate relief. Let us try this for a few years; and if we find it attended with mischief, we can refuse to renew the power. But it appears to me to be necessary and useful; and I cannot think that it would in the least degree endanger our liberties. The representatives of the States in Congress are easily changed as often as we please, and they must necessarily he changed often. They would have little inclination and less ability to enterprize against the liberties of their constituents. This, no doubt, would induce the necessity of employing a small number of armed vessels to enforce the regula-tions of Congress, and would be the beginning of a Continental Navy; but a navy was never esteemed, like a standing army, dangerous to the liberty of the people.
To those who should object that this is too small a power to grant to Congress; that many more are necessary to be added to those which they already possess, I can only say, that perhaps they have not sufficiently reflected upon the great importance of the power proposed.-That it would be of immense service to the country I have no doubt, as it is the only means by which our trade can be put on a footing with other nations;-that it would in the event greatly strengthen the hands of Congress, I think is highly probable.
With the Confederacy faltering the concept was that gradual change to examine what can and cannot be done is sufficient to get the Nation to a better form of government. Not to abolish it, but merely change it and keep a watch out on powers granted to government temporarily. With this Z. brings up one salient point that addressed the later concerns of Federal Farmer, and that is to change Congress often so as to limit the ability of individuals to attain great power over time. This is not, of necessity, 'term limits' (which would suffice) but even something as a 'lock out' from running, so that after serving two terms in either house or three in total, an individual would be barred from running for any federal office for a period of time, say a decade. In any event, what Hamilton points to later as a solution is also given here, and that is that when Congress oversteps its bounds the people are to withdraw power from it. Thus the time limit would be on the power granted to Congress in any given area which would need to be re-authorized regularly by the States and the people. Together these two items of limited time in power for individuals and limited power terms for Congress, would both ensure that there is a regular turn-over of individuals in power and that the power itself is regulated at its source: the people of the Nation consenting to it being used in their name. This would not only keep a flow of individual in government going, but would involve the people in deciding just how well powers have been used in their name and require participation to decide if they should be re-granted, amended or withheld.
George Mason was, perhaps, the highest visibility 'Anti-Federalist' known, as he was a co-author of the Bill of Rights with Madison, and yet would not sign the Constitution based on the lack of a powerful State role to play in government. This does serve as a common 'Anti-Federalist' idea, but as we have seen the concept of Federalism is brought into play by many of the critics who are pointing out that the lack of State strength is but one part of the larger set of problems in the Constitution, itself. In OCT 1787 he put out his Objections to the Constitution and listed his first thoughts on its problems. One item is the recurring theme:
In the House of Representatives there is not the substance, but the shadow only, of representation, which can never produce proper information in the legislature, or inspire confidence in the people. The laws will, therefore, be generally made by men little concerned in, and unacquainted with, their effects and consequences.
He also looks at the Senate, President and Judiciary, and finds the overall structure problematical and prone to vesting power that is not accountable due to the primary and first reason of the House not being truly representative of the Nation. The end of that, to him, is obvious:
This government will commence in a moderate aristocracy: it is at present impossible to foresee whether it will, in its operation, produce a monarchy or a corrupt oppressive aristocracy; it will most probably vibrate some years between the two, and then terminate in the one or the other.
In the form of government put forth in the Constitution the States did have direct role to play, both in the Senate and in collection of taxes for the federal government. These two items were to hold the federal government in check, and served to do so all the way up to the 20th century when these two checks were removed by the Amendment process. Without those moderate checks the outcome is that foreseen by George Mason - the slow shift of power to the National side, and the concentration of power that vacillates between Presidents and Congress. Without necessary checks on federal power, and giving the power to directly and proportionately tax individuals, the federal government is put in the position of generalizing taxation without being able to amend for locale. What the States could do well the federal government can only do poorly.
George Mason was not alone and many others would point out to the power grants to Congress as being imprudent in the extreme. Centinal, in Centinal I on 05 OCT 1787 would bring up the problem of taxation directly:
The wealthy and ambitious, who in every community think they have a right to lord it over their fellow creatures, have availed themselves, very successfully, of this favorable disposition; for the people thus unsettled in their sentiments, have been prepared to accede to any extreme of government; all the distresses and difficulties they experience, proceeding from various causes, have been ascribed to the impotency of the present confederation, and thence they have been led to expect full relief from the adoption of the proposed system of government, and in the other event, immediately ruin and annihilation as a nation. These characters flatter themselves that they have lulled all distrust and jealousy of their new plan, by gaining the concurrence of the two men in whom America has the highest confidence, and now triumphantly exult in the completion of their long meditated schemes of power and aggrandisement. I would be very far from insinuating that the two illustrious personages alluded to, have not the welfare of their country at heart, but that the unsuspecting goodness and zeal of the one, has been imposed on, in a subject of which he must be necessarily inexperienced, from his other arduous engagements; and that the weakness and indecision attendant on old age, has been practiced on in the other.
I am fearful that the principles of government inculcated in Mr. [John] Adams's treatise, and enforced in the numerous essays and paragraphs in the newspapers, have misled some well designing members of the late Convention.-But it will appear in the sequel, that the construction of the proposed plan of government is infinitely more extravagant.
I have been anxiously expecting that some enlightened patriot would, ere this, have taken up the pen to expose the futility, and counteract the baneful tendency of such principles. Mr. Adams's sine qua non of a good government is three balancing powers, whose repelling qualities are to produce an equilibrium of interests, and thereby promote the happiness of the whole community. He 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 to create an opposition of interests between the members of two distinct bodies, in the exercise of the powers of government, and balanced by those of a third. This hypothesis supposes human wisdom competent to the task of instituting three co-equal orders in government, and a corresponding weight in the community to enable them respectively to exercise their several parts, and whose views and interests should be so distinct as to prevent a coalition of any two of them for the destruction of the third. Mr. Adams, although he has traced the constitution of every form of government that ever existed, as far as history affords materials, has not been able to adduce a single instance of such a government; he indeed says that the British constitution is such in theory, but this is rather a confirmation that his principles are chimerical and not to be reduced to practice. If such an organization of power were practicable, how long would it continue? not a day-for there is so great a disparity in the talents, wisdom and industry of mankind, that the scale would presently preponderate to one or the other body, and with every accession of power the means of further increase would be greatly extended. The state of society in England is much more favorable to such a scheme of government than that of America. There they have a powerful hereditary nobility, and real distinctions of rank and interests; but even there, for want of that perfect equallity of power and distinction of interests, in the three orders of government, they exist but in name; the only operative and efficient check, upon the conduct of administration, is the sense of the people at large.
Suppose a government could be formed and supported on such principles, would it answer the great purposes of civil society; 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 adverse interests?
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. A republican, or free government, can only exist where the body of the people are virtuous, and where property is pretty equally divided; in such a government the people are the sovereign and their sense or opinion is the criterion of every public measure; for when this ceases to be the case, the nature of the government is changed, and an aristocracy, monarchy or despotism will rise on its ruin. The highest responsibility is to be attained, in a simple structure of government, for the great body of the people never steadily attend to the operations of government, and for want of due information are liable to be imposed on-If you complicate the plan by various orders, the people will be perplexed and divided in their sentiments about the source of abuses or misconduct, some will impute it to the senate, others to the house of representatives, and so on, that the interposition of the people may be rendered imperfect or perhaps wholly abortive. But if, imitating the constitution of Pennsylvania, you vest all the legislative power in one body of men (separating the executive and judicial) elected for a short period, and necessarily excluded by rotation from permanency, and guarded from precipitancy and surprise by delays imposed on its proceedings, you will create the most perfect responsibility for then, whenever the people feel a grievance they cannot mistake the authors, and will apply the remedy with certainty and effect, discarding them at the next election. This tie of responsibility will obviate all the dangers apprehended from a single legislature, and will the best secure the rights of the people.
This answer is to have a unitary legislative branch, which does not offer a check and balance system from our point of view of co-competing branches of government. With that said, using short placements of time allowable for that body (term limits) then places a turn-over of it to the point where there is no concentration of power there. Similarly the Executive and Judicial cannot make long-range plans based on individuals in the Legislative branch, thus making it very difficult to allow for concentration of power in the government. Term limits, in other words, creating higher fluidity in the legislative branch and disrupting power accumulation there.
On 22 JAN 1788 Agrippa in Agrippa XV would write on this and I will excerpt a section and reformat it a bit for easier reading as it is one large paragraph:
Can any man, in the free exercise of his reason, suppose that he is perfectly represented in the legislature, when that legislature may at pleasure alter the time, manner, and place of election. By altering the time they may continue a representative during his whole life; by altering the manner, they may fill up the vacancies by their own votes without the consent of the people; and by altering the place, all the elections maybe made at the seat of the federal government. Of all the powers of government perhaps this is the most improper to be surrendered. Such an article at once destroys the whole check which the constituents have upon their rulers.
I should be less zealous upon this subject, if the power had not been often abused.
The senate of Venice, the regencies of Holland, and the British parliament have all abused it. The last have not yet perpetuated themselves; but they have availed themselves repeatedly of popular commotions to continue in power. Even at this day we find attempts to vindicate the usurpation by which they continued themselves from three to seven years. All the attempts, and many have been made, to return to triennial elections, have proved abortive. These instances are abundantly sufficient to shew with what jealousy this right ought to be guarded. No sovereign on earth need be afraid to declare his crown elective, while the possessor has the right to regulate the time, manner, and place of election. It is vain to tell us, that the proposed government guarantees to each state a republican form.
Republics are divided into democratics, and aristocratics. The establishment of an order of nobles, in whom should reside all the power of the state, would be an aristocratic republic. Such has been for five centuries the government of Venice, in which all the energies of government, as well as of individuals, have been cramped by a distressing jealousy that the rulers have of each other. There is nothing of that generous, manly confidence that we see in the democratic republics of our own country. It is a government of force. attended with perpetual fear of that force. In Great-Britain, since the lengthening of parliaments, all our accounts agree, that their elections are a continued scene of bribery, riot and tumult; often a scene of murder.
These are the consequences of choosing seldom, and for extensive districts. When the term is short, nobody will give an high price for a seat. It is an insufficient answer to these objections to say, that there is no power of government but may sometimes be applied to bad purposes. Such a power is of no value unless it is applied to a bad purpose. It ought always to remain with the people.
Again, short terms and threat of re-election is not enough to prevent power accruing into the hands of government, in this case legislative bodies. Very few remember that legislative bodies, themselves, can become masters of a Nation, given time, and that frequent elections are, by themselves, not enough to stop that power from accumulating. He concludes with the following:
For Congress is at present possessed of the direction of the national force, and most other national powers, and in addition to them are to be vested with all the powers of the individual states, unrestrained by any declarations of right. If these things are for the security of our constitutional liberty, I trust we shall soon see an attempt to prove that the government by an army will be more friendly to liberty than a system founded in consent, and that five states will make a majority of thirteen. The powers of controlling elections, of creating exclusive companies in trade, of internal legislation and taxations ought, upon no account, to be surrendered.
I know it is a common complaint, that Congress want more power. But where is the limited government that does not want it? Ambition is in a governour what money is to a misar-he can never accumulate enough. But it is as true in politicks as in morals, he that is unfaithful in little, will be unfaithful also in much. He who will not exercise the powers he has, will never property use more extensive powers.
The framing entirely new systems, is a work that requires vast attention; and it is much easier to guard an old one. It is infinitely better to reject one that is unfriendly to liberty, and rest for a while satisfied with a system that is in some measure defective, than to set up a government unfriendly to the rights of states, and to the rights of individuals-one that is undefined in its powers and operations. Such is the government proposed by the federal convention, and such, we trust, you will have the wisdom and firmness to reject.
We now hear from the President that a mere branch of government, that of Treasury, demands more power: but what of the power it has? And just what is that power? It is limited in extent and even now overplays itself as Congress wishes to 'fix' the economy, a job it is not delegated by the Constitution and cannot be taken from the people. Yet that power is not jealously guarded by the people and our representatives grow distant from us and become aristocrats.
In Cato No. 6, by Cato, on 13 DEC 1787, yet another passage warning of the accrual of power by the federal government is seen:
In what manner then will you be eased, if the expences of government are to be raised solely out of the commerce of this country; do you not readily apprehend the fallacy of this argument. But government will find, that to press so heavily on commerce will not do, and therefore must have recourse to other objects; these will be a capitation or poll-tax, window lights, &c. &c. And a long train of impositions which their ingenuity will suggest; but will you submit to be numbered like the slaves of an arbitrary despot; and what will be your reflections when the tax-master thunders at your door for the duty on that light which is the bounty of heaven. It will be the policy of the great landholders who will chiefly compose this senate, and perhaps a majority of this house of representatives, to keep their lands free from taxes; and this is confirmed by the failure of every attempt to lay a land-tax in this state; hence recourse must and will be had to the sources I mentioned before. The burdens on you will be insupportable-your complaints will be inefficacious-this will beget public disturbances, and I will venture to predict, without the spirit of prophecy, that you and the government, if it is adopted, will one day be at issue on this point. The force of government will be exerted, this will call for an increase of revenue, and will add fuel to the fire. The result will be, that either you will revolve to some other form, or that government will give peace to the country, by destroying the opposition. If government therefore can, notwithstanding every opposition, raise a revenue on such things as are odious and burdensome to you, they can do any thing.
If we can remember back to the Clinton Administration, we see that such things as 'user fees' and other impositions of costs via irregular means by government was the order of the day. Of course we now have Congress passing Bills of Attainder to hit those who have gained absolutely legal and contractually obligated funds with the oversight of government who wrote and signed the checks to companies paying out bonuses to executives who had done their job properly in private firms. Unfortunately doing something legally is no longer enough, and we find that government will ingeniously propose things that are against the Constitution so as to act the petty will of aristocrats.
Cato, while having some monarchist feelings, still correctly points out the ills of a legislative branch that feels the need to spend and then tax freely, with its given powers and, soon, outside of them. Later in Centinal No. 8 by Centinel on 29 DEC 1787 we get a closer examination of where this leads:
But as it is by comparison only that men estimate the value of any good, they are not sensible of the worth of those blessings they enjoy, until they are deprived of them; hence from ignorance of the horrors of slavery, nations, that have been in possession of that rarest of blessings, liberty, have so easily parted with it: when groaning under the yoke of tyranny what perils would they not encounter, what consideration would they not give to regain the inestimable jewel they had lost; but the jealousy of despotism guards every avenue to freedom, and confirms its empire at the expence of the devoted people, whose property is made instrumental to their misery, for the rapacious hand of power seizes upon every thing; dispair presently succeeds, and every noble faculty of the mind being depressed, and all motive to industry and exertion being removed, the people are adapted to the nature of government, and drag out a listless existence.
If ever America should be enslaved it will be from this cause, that they are not sensible of their peculiar felicity, that they are not aware of the value of the heavenly boon, committed to their care and protection, and if the present conspiracy fails, as I have no doubt will be the case, it will be the triumph of reason and philosophy, as these United States have never felt the iron hand of power, or experienced the wretchedness of slavery.
Yes there was mistrust of those who wrote the Constitution, make no mistake about it, but their mistrust was not of the drafters (although there is harsh invective against them by a few) it was that the drafters had ignored fundamental lessons of liberty and freedom in their design of the Constitution. Thus we step over to a lesser light in the 'Federalist' venue, from Atticus in Atticus No. 1 from 9 AUG 1787:
Republicanism, a few years ago, was all the vogue of politicians. "A government of laws and not of men." But now the aristocratics and monarchy-men on the one hand, and the insurgent party on the other, are with different views contending for a "government of men, and not of laws." The weakness of republics is become the everlasting theme of speculative politicians. While a man of less enthusiasm, on remarking the extravagancies of parties, is ready to say,For forms of government let fools contest,
Whate’er is best administ’red is best.
But even this is not strictly true. A government may be deficient in its form: and afford no principles on which the executive power shall proceed. We may therefore define a good government thus. It is that which contains a good system of laws, with provision suitable and sufficient, for the putting them into execution. By whatever name such a government be called, it is a good one. The goodness of forms of government is, however, almost wholly relative. Some agree with one nations, with respect to their temper and circumstances, some with another. Habit and actual experience alone, can absolutely determine that which is fit for any individual State.
Liberty, when considered as a power, is the unrestrained power of acting reasonably: As a privilege, it is the security which a man feels in acting rightly and enjoying the fruit of his own labor. When either of these are wanting, the people are not free, although their government may be called a democracy. When these exist, the people are free, although the government may be stiled an absolute monarchy. For an absolute, and arbitrary government, are very different things.
The idea of depending upon individuals in power to act reasonably requires that they recognize that the system of laws are, indeed, good and sufficient in and of themselves to have proper justification for being and then executing them properly. When those in power do not see that the laws are good and necessary to achieve the ends with the limited powers granted to government, then government seeks to grant itself more power at the expense of its people, thus impoverishing them. Not just in a monetary venue, but removing liberty from individuals who cannot enjoy it the manner they choose, so long as it does not harm either society or other individuals. Individuals have liberty, quite rightly, as a power to act reasonably. Government having limited liberty, seeks to acquire more and the source of all liberty is the people - thus when government seeks more power it can only do so with the acquiescence of the people. Without due asking for such power, it is then referred to as being 'seized' from the people. When government seeks to take any power that is not granted to it, and it does not seek proper and legal means to do so, it acts in an authoritarian manner.
As the House is the one to start such taxation legislation it is the object of power: it holds the purse strings. Thus the power it holds, as opposed to the more aristocratic Senate, must be one that is representative of the people, for it is the people who must live with the costs of government. John DeWitt in John Dewitt III on 05 NOV 1787 looks at the peril of having the House as it is devised, and I will reformat it for modern readability:
These considerations, added to their share above mentioned in the Executive department must give them a decided superiority over House of Representatives.-But that superiority is greatly enhanced, when we consider the difference of time for which they are chosen. They will have become adepts in the mystery of administration, while the House of Representatives may be composed perhaps two thirds of members, just entering into office little used to the course of business, and totally unacquainted with the means made use of to accomplish it. -- Very possible also in a country where they are total strangers. But, my fellow citizens, the important question here arises, who are this House of Representatives? "A representative Assembly, says the celebrated Mr. Adams, is the sense of the people, and the perfection of the portrait, consists in the likeness."
- Can this Assembly be said to contain the sense of the people?
- Do they resemble the people in any one single feature?
- Do you represent your wants, your grievances, your wishes, in person? If that is impracticable, have you a right to send one of your townsmen for that purpose?
- Have you a right to send one from your county?
- Have you a right to send more than one for every thirty thousand of you?
- Can he be presumed knowing to your different, peculiar situations your abilities to pay public taxes, when they ought to be abated, and when increased? Or is there any possibility of giving him information?
- All these questions must be answered in the negative.
- But how are these men to be chosen?
- Is there any other way than by dividing the Senate into districts?
- May not you as well at once invest your annual Assemblies with the power of choosing them where is the essential difference?
The nature of the thing will admit of none. Nay, you give them the power to prescribe the mode. They may invest it in themselves.-If you choose them yourselves, you must take them upon credit, and elect those persons you know only by common fame. Even this privilege is denied you annually, through fear that you might withhold the shadow of control over them. In this view of the System, let me sincerely ask you, where is the people in this House of Representatives?
- Where is the boasted popular part of this much admired System?
- Are they not cousins german in every sense to the Senate?
- May they not with propriety be termed an Assistant Aristocratical Branch, who will be infinitely more inclined to co-operate and compromise with each other, than to be the careful guardians of the rights of their constituents?
- Who is there among you would not start at being told, that instead of your present House of Representatives, consisting of members chosen from every town, your future Houses were to consist of but ten in number, and these to be chosen by districts?
- What man among you would betray his country and approve of it?
- And yet how infinitely preferable to the plan proposed?
In the one case the elections would be annual, the persons elected would reside in the center of you, their interests would be yours, they would be subject to your immediate control, and nobody to consult in their deliberations _ But in the other, they are chosen for double the time, during which, however well disposed, they become strangers to the very people choosing them, they reside at a distance from you, you have no control over them, you cannot observe their conduct, and they have to consult and finally be guided by twelve other States, whose interests are, in all material points, directly opposed to yours. Let me again ask you, What citizen is there in the Commonwealth of Massachusetts, that would deliberately consent laying aside the mode proposed, that the several Senates of the several States, should be the popular Branch, and together, form one National House of Representatives? -And yet one moment's attention will evince to you, that this blessed proposed Representation of the People, this apparent faithful Mirror, this striking Likeness, is to be still further refined, and more Aristocratical four times told.
- Where now is the exact balance which has been so diligently attended to?
- Where lies the security of the people?
- What assurances have they that either their taxes will not be exacted but in the greatest emergencies, and then sparingly, or that standing armies will be raised and supported for the very plausible purpose only of cantoning them upon their frontiers?
There is but one answer to these questions.-They have none. Nor was it intended by the makers they should have for meaning to make a different use of the latter, they never will be at a loss for ways and means to expend the former. They do not design to beg a second time. Knowing the danger of frequent applications to the people, they ask for the whole at once, and are now by their conduct, tearing and absolutely haunting of you into a compliance. If you choose all these things should take place, by all means gratify them.
Go, and establish this Government which is unanimously confessed imperfect, yet incapable of alteration. Intrust it to men, subject to the same unbounded passions and infirmities as yourselves, possessed with an insatiable thirst for power, and many of them, carrying in them vices, tho- tinsel'd and concealed, yet, in themselves, not less dangerous than those more naked and exposed. But in the mean time, add an additional weight to the stone that now covers the remains of the Great WARREN and MONTGOMERY; prepare an apology for the blood and treasure, profusely spent to obtain those rights which you now so timely part with. Conceal yourselves from the ridicule of your enemies, and bring your New England spirits to a level with the contempt of mankind. Henceforth you may sit yourselves down with propriety, and say, Blessed are they that never expect, for they shall not be disappointed.
There, that has some of the bombast you have come to expect from 'Anti-Federalists', no? But the problem with the broad dismissal is seen, again, in the criticism of the power of the House and House members who become co-aristocrats in government to the more senior Senate. Representatives in the House are seen as growing distant in a mere two years time, separating from the wants and problems of their people at home. In time that distance grows more as they are re-elected and learn, like their elder cousins in the Senate, how to wield the power of government. As even normal people cannot resist the feeling of power in government, and these are supposed to be 'normal' people, they will feel that same want and seek to gain more power to government and themselves to gain self-importance. Here a further set of methods are given to keep the House in check: annual elections, small districts, county level elections (distinct geographic sub-regions in a State with population to be enough to warrant a representative) and move towards the 1:30,000 proportion minimum.
Thus the ways to counter the concentration of power is multifold, as seen during the 1787-88 timeframe:
- Term limits - Limited time to be in office and then step down. This also includes such things as a lock-out period of a decade or so if true term limits are objectionable. But in either case, not holding any government office at the federal level once due terms or time is served.
- Frequent elections - Make them annual or even 'snap' elections at the district level. In the era of the constant campaign, why not do so? Or hold recall elections every other year that a candidate must win or be recalled. That could be extended to every year for a Senator between their 6-year elections. One majority in the interim and the office holder is booted out of office.
- Small districts - This goes along with the next two, but points out that individual towns were expecting single representatives to go from them. Today with 1:550,000 you barely get large regions in low population States and very few town-sized areas in well populated States. Small town America gets no voice today.
- Geographic districts - No gerrymandering, but let Nature decide the outlines and do bare sub-dividing along river courses, ridge lines and the such for districts.
- Maximum representation proportion. Change over to the Constitutional 1:30,000 so that there are small, compact and discrete districts that cannot be 'gerrymandered' as you quickly get 30,000 citizens in any small region. Neighborhoods in cities and small towns are, by definition, near 1:30,000. This is 'natural districting' with maximum representation.
These, then, are how you address the way to ensure the voice of the people is heard in government so that it does not grow distant over time from the people and accrue power to itself. Choose any single method, put it in an Amendment, and you will have a massive change in government turnover. That said, 1 & 2 will not remove the class-based problem and will still pull in the highly educated and wealthy, so you are, in effect, exchanging one set of class-type members for another. In 3-5 you begin to get a wider array of individuals and only in 5 do you get such a fine grained dispersion of representation that you must, of natural course, be getting 'normal people' who can take time off from a job to be a representative. I favor 3-5 as they can give actual good and local individuals a reward for doing a job well, and in 5 if a few hundred DON'T like the job, the individual is likely not to be re-elected.
Any of these is better than what we have now.
Yet the problems could have been fixed in 1787-88.
It is true that slavery might have broken the Union, then, and for that waffling and putting off a decision the Nation paid a great price.
Recognizing human nature and the problems of representative democracy and its abuses?
Those were minor problems in comparison.