vis-a-vis Gordon Wood
1. In his review of my book, Righteous Anger at the Wicked States: The Meaning of the Founders' Constitution (Cambridge University Press 2005) [New York Review Feb. 23, 2006], Gordon Wood accuses me of falsely claiming that "it is common to see the Constitution as described as written to limit the federal government and to protect states rights." "This is news to me," Wood said, "and not at all credible. I know of no interpretation of the origins of the Constitution that has ever claimed such a thing."
Alas, in legal circles, the interpretation of the Constitution as reining in national power is not only common, but probably dominant. In recent years, the Supreme Court has been creating new doctrines to restrict the federal government and enhance state power, based on its understanding of the "original intent" of the Constitution. The Court has denied Congress the power to protect rape victims, to ask sheriffs to check arrest records for gun control, or to ban guns from schools. It has been expanding state immunity to process of law. The Court has been going beyond the words of the Constitution to find that the restraints on federal power are “fundamental postulates implicit in the constitutional design.” (Justice Kennedy). There is a "relatively stable majority [of the Supreme Court] committed to enforcing limits on the federal power and to protecting the integrity of the states," says Professor Richard H. Fallon of Harvard. Historian Forrest McDonald says that while the Court is giving states rights a new friend, it is fickle friend, because the decisions are 5-4. The newest appointments to the Supreme are sympathetic to restraints on federal power, however, so that the Court may well soon become a steadfast friend of the states vis-à-vis national power.
Among legal academics, the school of thought associated with the Federalist Society is quite strongly committed to checking Federal power. Among Gordon Wood's former colleagues on the Northwestern Law School faculty, I would list Professors Steven Calebresi, John McGinnis, and Stephen Presser as within the restrict-the-national school of the Federalist Society.
States rights interpretations of the Constitution have also been important historically. Jefferson was elected on a platform of keeping the federal government entirely out of domestic affairs. Jefferson claimed in 1798 that under a true reading of Constitution, a state could declare “nugatory” and “altogether void, and of no force” federal laws that it did not like. Calhoun's interpretation of the Constitution also left all effective power in the states. Indeed, "from the presidency of Jefferson to that of Abraham Lincoln," as Forrest McDonald puts it, "the consensus was that Jefferson had been right in calling the Tenth Amendment [limiting the federal government to delegated powers] the foundation of the constitutional union.” Professor Wood and I might well be in agreement that the anti-national interpretations of the Constitution are unfortunate and unsound. But they do exist.
As the Supreme Court has moved to base its constitutional decisions on historical original intent, the historians in our finest academic departments have retreated from the field and moved over to social and cultural history. Wood is one of the last historians of the old school, generally interested in ideas and political decisions. The distain that historians exhibit to all things of the law means that the Supreme Court's new historicism is taking place without the aid or support of professional historians.
2. My book, Righteous Anger, rejected the argument important to Wood that the Constitution was an anti-democratic document written primarily to suppress paper money. Wood is a neo-Beardian on the issue, and Beard anachronistically seems to have thought the Constitution was written primarily to crucify the common man upon a cross of gold. (William Jennings Bryan). Wood has described the Constitution as an as “an aristocratic document designed to check the democratic tendencies of the period.” Wood may be easing off that position because, in his review, he expressed a fully-justifiable admiration for James Wilson, who was both an important influence on the Constitution and also a steady advocate of democracy. Still his review also argues that the Constitution originated because Madison and other Federalists wanted to limit "majoritarian factionalism" in the states and that expression is at least an echo of his long-standing claim that the Constitution is anti-democratic.
Righteous Anger rejected Gordon Wood's position that paper money was core to the ratification dispute. The Constitution does prohibit state paper money. The failure of the Continental dollar stole from all who held it and gave paper money a bad smell. Paper money was not an issue that divided proponents of ratification from Anti-Federalist opponents. In the key states of New York and Virginia, the Anti-Federalists objected to almost every sentence as the Constitution was discussed line by line, but they did not object to the ban on paper money. The Virginia Anti-Federalists said that "it was unanimously wished that the prohibition on paper money should not be objected to" and Patrick Henry, their leader, said "I am at peace with the subject." George Mason, perhaps the most important Anti-Federalist, had tried to ban "book debt" which was the institution by which the small farmers got their guns, kettles and seed from the storekeepers, so he was no friend of yeoman debt. More generally, the Constitution can not be understood as written by creditors trying to collect their debts, but by debtors who were trying to restore their credit. The driving first purpose of the Constitution was to give the federal government the power to tax so it make payments to restore the public credit, so that the federal government could borrow again in the next, inevitable war.
It is also time that we stop treating the Anti-Federalist opponents of the Constitution as if they were democratic heroes. Neither side was consistently democratic by the standards of our time, but the Anti-Federalist opponents were worse. The Anti-Federalists tried to beat the Constitution by arguing that only the typical foolishness of the people would allow ratification and by arguing that the Constitution was too democratic. Federal Farmer, perhaps the best of the Anti-Federalist Essayists, expressed his shock that the Constitution would allow federal office holders to be “Christians, Pagans, Mahometans, or Jews; that they are of any colour, rich or poor, convict or not.” Federalist defenders of the Constitution were the ones who argued that the absence of a religious test or property ownership requirement for office was a virtue of the proposal. To quote Righteous Anger,
It was Anti-Federalist Patrick Henry who said that Jews, Mahometans, Deists,
and pagans professed and practiced such abominations as rendered their persuasions unworthy the sanction of legal support. It was the Anti-Federalists who denounced our Constitution because it allowed office holders who were “Quakers, Mahometans, Diests, abominable wretches, Negroes, Beggars and lastly Jews.”
Wood's title for his review asked the question, "How Democratic was the Constitution," and the quick answer is "more democratic than the opposition."
The Anti-Federalists were also strongly committed anti-democrats, necessarily so because of their game position. The Federalists proponents of the Constitution had ignored their instructions to send the document for ratification by the state legislatures, in reliance on the People. A Constitution, Jefferson had written, has to be written by the people to prevent a subsequent legislature from changing its mind and passing later legislation. So the Federalists went to the People.
The Anti-Federalists protested the move. “Who authorized them to speak the language of, We, the People, instead of We, the States?,” Patrick Henry asked Virginia. “States are the characteristics and the soul of a confederation. If the States be not the agents of this compact, it must be one great consolidated National Government of the people.
It was the Federalists who celebrated basing the government upon the legitimization of the people. “[I]n this government,” James Wilson told the Pennsylvania Ratification Convention, “the supreme, absolute and uncontrollable power remains in the people. The people were the supreme power “from which there is no appeal.” The consent of the people, Hamilton stated in Federalist No. 22, is that “pure original fountain of legitimate authority.
The posture of the debates put the Anti-Federalists into denying the power of the people. Anti-Federalist Governor George Clinton, for example, warned New York about the “frenzy” of the people, who could be guilty of “most imprudent and desperate measures.” Clinton said he knew that “the people are too apt to vibrate from one extreme to another. Anti-Federalist “Federal Farmer” condemned “levellers” and “little insurgents, men in debt, who want no law, and who want a share of the property of others.” Anti-Federalist Mercy Otis Warren of Massachusetts denounced the “supple multitude” who were paying a “blind and idolatrous homage” to false leaders. In private, she expressed her hope that a few virtuous men might rise and stand above the “absurd enthusiasm that often spreads itself over the lower classes of life.” Anti-Federalist Eldridge Gerry of Massachussets warned the proponents of the Constitution that “the evils we experience flow from the excess of democracy” and that he “had been taught by experience the danger of the levilling spirit.” Anti-Federalist Melancton Smith, the probable author of the Brutus essays, is a hero to the Anti-Federalists, and he told the New York convention that the “people are frequently incompetent to deliberate discussion, and subject to errors and imprudences.” The Anti-Federalists were not democrats.
3. Gordon Wood and I, for all of our agreements on so many issues, disagree about what factors to look for to explain history. Wood is an ideological historian, a dying breed within his discipline, who wants to explain the history of the 1780's and 1790's in terms of ideas. In my studies I often found that the ideological arguments were just thin covers for programs the speaker wanted to accomplish, and that the debaters were not very loyal to ideas once their programmatic needs changed. The richest, most t philosophical argument in the debates, for instance, is James Madison's argument in Federalist 10 that the extended republic will be a better protector of individual rights than the states. The position is a generalization from religious disputes: To cite Voltaire's quip: if there is one religion, there is tyranny; if two, civil war; but if there are 13, then all will be at peace with each other. Each state tended to be dominated by one denomination, but on the Federal level, there were too many competing denominations for any one to be oppressive. For all of the strength of the idea, Madison abandoned the whole argument by 1791. By 1791, Alexander Hamilton and the Washington Administration was the target of Madison's energy, and not the feudal barons in the states. In 1791, Madison called upon the small, homogeneous states like Virginia to be a check upon the national government, and that argument is exactly the opposite of Federalist 10. The best philosophical position in the whole debate had no legs.
Righteous Anger is a history of the Constitution in terms of what the proponents were trying to accomplish. Words are deeds. They are used to invigorate your friends, paralyze the opposition and a convince a few fence sitters. Take the words away from the program and the words are out of context and you do not know their meaning. "The Constitution was once a weapon in a hard-fought war and its weapon-like characteristics are core to its historical meaning" (Righteous Anger)
Alas, in legal circles, the interpretation of the Constitution as reining in national power is not only common, but probably dominant. In recent years, the Supreme Court has been creating new doctrines to restrict the federal government and enhance state power, based on its understanding of the "original intent" of the Constitution. The Court has denied Congress the power to protect rape victims, to ask sheriffs to check arrest records for gun control, or to ban guns from schools. It has been expanding state immunity to process of law. The Court has been going beyond the words of the Constitution to find that the restraints on federal power are “fundamental postulates implicit in the constitutional design.” (Justice Kennedy). There is a "relatively stable majority [of the Supreme Court] committed to enforcing limits on the federal power and to protecting the integrity of the states," says Professor Richard H. Fallon of Harvard. Historian Forrest McDonald says that while the Court is giving states rights a new friend, it is fickle friend, because the decisions are 5-4. The newest appointments to the Supreme are sympathetic to restraints on federal power, however, so that the Court may well soon become a steadfast friend of the states vis-à-vis national power.
Among legal academics, the school of thought associated with the Federalist Society is quite strongly committed to checking Federal power. Among Gordon Wood's former colleagues on the Northwestern Law School faculty, I would list Professors Steven Calebresi, John McGinnis, and Stephen Presser as within the restrict-the-national school of the Federalist Society.
States rights interpretations of the Constitution have also been important historically. Jefferson was elected on a platform of keeping the federal government entirely out of domestic affairs. Jefferson claimed in 1798 that under a true reading of Constitution, a state could declare “nugatory” and “altogether void, and of no force” federal laws that it did not like. Calhoun's interpretation of the Constitution also left all effective power in the states. Indeed, "from the presidency of Jefferson to that of Abraham Lincoln," as Forrest McDonald puts it, "the consensus was that Jefferson had been right in calling the Tenth Amendment [limiting the federal government to delegated powers] the foundation of the constitutional union.” Professor Wood and I might well be in agreement that the anti-national interpretations of the Constitution are unfortunate and unsound. But they do exist.
As the Supreme Court has moved to base its constitutional decisions on historical original intent, the historians in our finest academic departments have retreated from the field and moved over to social and cultural history. Wood is one of the last historians of the old school, generally interested in ideas and political decisions. The distain that historians exhibit to all things of the law means that the Supreme Court's new historicism is taking place without the aid or support of professional historians.
2. My book, Righteous Anger, rejected the argument important to Wood that the Constitution was an anti-democratic document written primarily to suppress paper money. Wood is a neo-Beardian on the issue, and Beard anachronistically seems to have thought the Constitution was written primarily to crucify the common man upon a cross of gold. (William Jennings Bryan). Wood has described the Constitution as an as “an aristocratic document designed to check the democratic tendencies of the period.” Wood may be easing off that position because, in his review, he expressed a fully-justifiable admiration for James Wilson, who was both an important influence on the Constitution and also a steady advocate of democracy. Still his review also argues that the Constitution originated because Madison and other Federalists wanted to limit "majoritarian factionalism" in the states and that expression is at least an echo of his long-standing claim that the Constitution is anti-democratic.
Righteous Anger rejected Gordon Wood's position that paper money was core to the ratification dispute. The Constitution does prohibit state paper money. The failure of the Continental dollar stole from all who held it and gave paper money a bad smell. Paper money was not an issue that divided proponents of ratification from Anti-Federalist opponents. In the key states of New York and Virginia, the Anti-Federalists objected to almost every sentence as the Constitution was discussed line by line, but they did not object to the ban on paper money. The Virginia Anti-Federalists said that "it was unanimously wished that the prohibition on paper money should not be objected to" and Patrick Henry, their leader, said "I am at peace with the subject." George Mason, perhaps the most important Anti-Federalist, had tried to ban "book debt" which was the institution by which the small farmers got their guns, kettles and seed from the storekeepers, so he was no friend of yeoman debt. More generally, the Constitution can not be understood as written by creditors trying to collect their debts, but by debtors who were trying to restore their credit. The driving first purpose of the Constitution was to give the federal government the power to tax so it make payments to restore the public credit, so that the federal government could borrow again in the next, inevitable war.
It is also time that we stop treating the Anti-Federalist opponents of the Constitution as if they were democratic heroes. Neither side was consistently democratic by the standards of our time, but the Anti-Federalist opponents were worse. The Anti-Federalists tried to beat the Constitution by arguing that only the typical foolishness of the people would allow ratification and by arguing that the Constitution was too democratic. Federal Farmer, perhaps the best of the Anti-Federalist Essayists, expressed his shock that the Constitution would allow federal office holders to be “Christians, Pagans, Mahometans, or Jews; that they are of any colour, rich or poor, convict or not.” Federalist defenders of the Constitution were the ones who argued that the absence of a religious test or property ownership requirement for office was a virtue of the proposal. To quote Righteous Anger,
It was Anti-Federalist Patrick Henry who said that Jews, Mahometans, Deists,
and pagans professed and practiced such abominations as rendered their persuasions unworthy the sanction of legal support. It was the Anti-Federalists who denounced our Constitution because it allowed office holders who were “Quakers, Mahometans, Diests, abominable wretches, Negroes, Beggars and lastly Jews.”
Wood's title for his review asked the question, "How Democratic was the Constitution," and the quick answer is "more democratic than the opposition."
The Anti-Federalists were also strongly committed anti-democrats, necessarily so because of their game position. The Federalists proponents of the Constitution had ignored their instructions to send the document for ratification by the state legislatures, in reliance on the People. A Constitution, Jefferson had written, has to be written by the people to prevent a subsequent legislature from changing its mind and passing later legislation. So the Federalists went to the People.
The Anti-Federalists protested the move. “Who authorized them to speak the language of, We, the People, instead of We, the States?,” Patrick Henry asked Virginia. “States are the characteristics and the soul of a confederation. If the States be not the agents of this compact, it must be one great consolidated National Government of the people.
It was the Federalists who celebrated basing the government upon the legitimization of the people. “[I]n this government,” James Wilson told the Pennsylvania Ratification Convention, “the supreme, absolute and uncontrollable power remains in the people. The people were the supreme power “from which there is no appeal.” The consent of the people, Hamilton stated in Federalist No. 22, is that “pure original fountain of legitimate authority.
The posture of the debates put the Anti-Federalists into denying the power of the people. Anti-Federalist Governor George Clinton, for example, warned New York about the “frenzy” of the people, who could be guilty of “most imprudent and desperate measures.” Clinton said he knew that “the people are too apt to vibrate from one extreme to another. Anti-Federalist “Federal Farmer” condemned “levellers” and “little insurgents, men in debt, who want no law, and who want a share of the property of others.” Anti-Federalist Mercy Otis Warren of Massachusetts denounced the “supple multitude” who were paying a “blind and idolatrous homage” to false leaders. In private, she expressed her hope that a few virtuous men might rise and stand above the “absurd enthusiasm that often spreads itself over the lower classes of life.” Anti-Federalist Eldridge Gerry of Massachussets warned the proponents of the Constitution that “the evils we experience flow from the excess of democracy” and that he “had been taught by experience the danger of the levilling spirit.” Anti-Federalist Melancton Smith, the probable author of the Brutus essays, is a hero to the Anti-Federalists, and he told the New York convention that the “people are frequently incompetent to deliberate discussion, and subject to errors and imprudences.” The Anti-Federalists were not democrats.
3. Gordon Wood and I, for all of our agreements on so many issues, disagree about what factors to look for to explain history. Wood is an ideological historian, a dying breed within his discipline, who wants to explain the history of the 1780's and 1790's in terms of ideas. In my studies I often found that the ideological arguments were just thin covers for programs the speaker wanted to accomplish, and that the debaters were not very loyal to ideas once their programmatic needs changed. The richest, most t philosophical argument in the debates, for instance, is James Madison's argument in Federalist 10 that the extended republic will be a better protector of individual rights than the states. The position is a generalization from religious disputes: To cite Voltaire's quip: if there is one religion, there is tyranny; if two, civil war; but if there are 13, then all will be at peace with each other. Each state tended to be dominated by one denomination, but on the Federal level, there were too many competing denominations for any one to be oppressive. For all of the strength of the idea, Madison abandoned the whole argument by 1791. By 1791, Alexander Hamilton and the Washington Administration was the target of Madison's energy, and not the feudal barons in the states. In 1791, Madison called upon the small, homogeneous states like Virginia to be a check upon the national government, and that argument is exactly the opposite of Federalist 10. The best philosophical position in the whole debate had no legs.
Righteous Anger is a history of the Constitution in terms of what the proponents were trying to accomplish. Words are deeds. They are used to invigorate your friends, paralyze the opposition and a convince a few fence sitters. Take the words away from the program and the words are out of context and you do not know their meaning. "The Constitution was once a weapon in a hard-fought war and its weapon-like characteristics are core to its historical meaning" (Righteous Anger)
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