by Calvin H. Johnson. New York: Cambridge University Press, 2005. 308pp. Hardback. $99.00/£58.00. ISBN: 9780521852326. Paperback. $31.00/£20.99. ISBN: 9780521757522. eBook format. $64.00. ISBN: 9780511126741.
A Reply to Professor Alan Gibson’s Review by the author, Calvin H. Johnson, University of Texas Law School. Email: CJohnson [at] law.utexas.edu.
I thank Alan Gibson for the many praises he gives to RIGHTEOUS ANGER AT THE WICKED STATES: THE MEANING OF THE FOUNDERS’ CONSTITUTION. http://www.lpbr.net/2010/12/righteous-anger-at-wicked-states.html I am not persuaded by Professor Gibson’s Anti-Federalism and, even after all these years, these are partisan issues. Professor Gibson still likes positions that I rejected after full and fair consideration. Still he is gracious in his starting descriptions, and I thank him for his time. I will take his praise, when he praises RIGHTEOUS ANGER.
When Professor Gibson finds me amiss, I think the book itself is pretty comprehensive rebuttal without anything more RIGHTEOUS ANGER is a $30 book even in paperback but worth every pound. RIGHTEOUS ANGER quotes the letters for the proposition that Jefferson was a consistent Montesquieuan believing that democracy can survive only in the small republics. Jefferson does have wrinkles in his thinking, Professor Gibson has found, but they are small and Jefferson is consistent, spanning the Constitutional period, in saying that only in a small republic, [i.e., Virginia] can the flame of democracy survive. RIGHTEOUS ANGER quotes the newspaper article in which Madison renounced Federalist 10, once he broke with the Washington-Hamilton Administration, and wrote that democracy can prevail only in the homogeneous small republic. Neither of my descriptions is an error. I give lots of quotes – I am told too many quotes – because I thought people might otherwise think I was in error when they wanted me to be in error.
Madison was the source of the move away from the confederate mode of government to a national, three-part government, able to walk on its own legs. He did lose in the Convention on issues important to him – for instance, the Senate voting rules – but he really won more than he lost in importance. The biggest victory was of course that there would be a national government supreme over the states, able to raise taxes on its own without ever going back to the states, able to nationalize the state armies, and able to enact national laws supreme over state laws and state constitution. The Convention as a whole passed a motion that guided the Committee on Detail in its scrivener’s duty and the motion gave the Congress the power to legislate “for the common interest in any case whatsoever.” I find the text as drafted to be faithful to the mandate established in the motion. Madison is proximate cause for all this. [*656] The only place you can find first drafts or a proto-constitution is in Madison’s writing. Only Madison was brave enough to call for the replacement of the Confederation friendship pact among the states with a real national government sovereign over the states.
In Federalist 10, Madison argued that the extended national government would better protect individual rights than the smaller states. In the smaller states a faction or oligarchy could prevail and oppress minority rights, much as Patrick Henry had done in Virginia. At the level of the diversified national republic, however, no religious or secular faction would be large enough to prevail, and each faction would have liberty to follow an independent course. I agree fully with Professor Gibson’s review to the effect that Federalist 10 was less important at the time than we have lately made of it. Arguably only Hamilton was persuaded, and he took some time to come around to agreement. But Federalist 10 is beautiful as an idea that rationalizes the Constitutional revolution. If it persuaded Madison only, that would still make it a major intellectual cause of the Constitution. The beauty of the fit between Federalist 10 and the nationalist revolution that was accomplished by the Constitution has to count for something.
The Constitution, or something like it, was also inevitable. The Articles of Confederation had fatal collective action problems. Everyone was willing to enjoy the fruits of the War for Independence but nobody wanted to pay for it. The Anti-Federalists were willing to renounce the war debts, even if that was dangerous. In the coming war, this fragile coast line nation would need to borrow from the Dutch again to defend itself. Stiffing the Dutch was a very dangerous act. For proponents of our Constitution, the States had had their sovereignty and forfeited it, for failure to pay their dues. The system of confederation of sovereign states had been tried and it was the bad-egg example that guided the Framers in their nationalism.
Other purported causes of the Constitution, outside of the righteous anger at the states, are not important. I make the case in RIGHTEOUS ANGER that Shays was better support for the Anti-Federalists’ usuage of it than for the Federalist cause. Massachussetts’ vigorous response to Shays, the Anti-Federalists argued, showed that the states were doing fine. Yes, some Federalists cried Wolf early on, but they got over it when better news came in and nobody was in fact afraid of Shays rebellion by September 1787.
The Articles of Confederation had already established a common market, with trivial exceptions, the most important of which, the 1% Virginia impost that included American goods, was an act that Virginia was shamed into repealing by the already established norms of nondiscrimination against out-of-state Americans. “Regulation of commerce” is mostly a synonym in the debates for suppressing imports by nationalizing the state taxes on imports to make them more effective. Proposals to establish navigation laws – statutorily imposed monopolies on shipping-- or to punish British shipping were part of the “regulation of commerce” goal, but never came to pass. [*657]
I have a long chapter evaluating the program of the Anti-Federalists. The middle Anti-Federalists folded because they wanted Union rather than succession. I find nothing attractive in Anti-Federalist ideology and much that is repulsive in how they were put together. They are anti-tax, anti-Catholic, anti-Semitic and more pro-slavery than the Federalists. In New York the Anti-Federalist cause was organized around preserving the tax on imports through New York harbor exclusively for selfish state needs and denying the revenue for the desperate needs of the Union. In Pennsylvania the organizing principle of Anti-Federalism was that if the Quakers are for it, we are against it. In Virginia, Patrick Henry led the opposition to the Constitution on the organizing platform that “if you adopt this Constitution, the Eastern states can and will abolish slavery.” By ratification, the Anti-Federalists lost, praise be the Lord, and they ceased to be appealing enough thereafter to be a banner under which politicians wanting to win could rally. Our continued deification of the Anti-Federalist opponents of the Constitution mystifies me. Similarly, I found nothing plausible, persuasive or appealing in Lance Banning’s life long crusade to say that Madison was always a Virginia partisan. He and Hamilton were the twin stoutest nationalists in the Congress in the years before the Constitution.
Yes, I do believe that the Supreme Court’s current restrictions on the federal government are made-up history. The Constitution as a historical document was a weapon in a war to end the sovereignty of the states and to replace it with a strong self-sufficient national government. Our Constitution is a viciously anti-state document. Perhaps these issues will not be settled here in one review and one rebuttal, but they are important. even after Professor Gibson’s review, the closer one gets to understanding the original Constitution, the more nationalistic the Constitution looks.
© Copyright 2010 by the author, Calvin H. Johnson.