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.
Reviewed by Alan Gibson, Department of Political Science, California State University, Chico. Email: agibson [at] csuchico.edu.
University of Texas Law Professor Calvin Johnson’s provocative but deeply flawed book RIGHTEOUS ANGER AT THE WICKED STATES is at once a study of the motives that led to the formation of the Constitution and a targeted refutation of the “new federalism” led by Justice Anthony Kennedy. Johnson hammers the following thesis: the original Constitution was “first a pro-tax document written to give the federal government revenue to pay enough of its war debts to restore the public credit” (p.2). The inability of the Confederation government to raise revenue had made orchestration of the Revolutionary war effort excruciating and perilous. It also endangered the union after independence. Paying debts to creditors, especially foreign ones, the Framers realized, was essential to national defense because the United States would doubtlessly be at war and in need of money again. Defaulting on current loans would make future borrowing impossible.
Alone, however, the Framers’ desire to strengthen the national government by adding a power to tax cannot explain the constitutional revolution that culminated in the creation of radically novel, nationalist, tri-partite national government that rested on the sovereignty of the people, acted directly upon individuals, enacted laws that were supreme over the states, and was able to raise its own revenues through taxation. To explain the form and substance of the original Constitution, we have to examine the Framers’ “righteous anger at the wicked states” for their imbecility and indifference to the sacred union. The states had failed to pay requisitions, to provide Washington’s army with food, supplies, or arms, and to pass even the most reasonable remedy to the problem of insufficient revenue: an impost. Other motives that have been used to explain the constitutional revolution of 1787 and the original meaning and purpose of the original Constitution – the desire to regulate commerce, to suppress insurrections, to umpire territory disputes among the states, to protect the interests of creditors – were secondary.
The constitutional revolution driven by the righteous anger at the wicked states, according to Johnson, ended in 1796 with the ratification of the 11th amendment which forbade citizens of one state from suing the government of a different state. Such suits were clearly warranted by the original movement to abandon the Articles of Confederation. The overturning of CHISHOLM v. GEORGIA (1793) by constitutional amendment, however, signaled the end [*645] of righteous anger against the states. Thus, contrary to the assertions of Kennedy and the new federalists, the Constitution was not meant to limit the power of the national government or to secure the sovereignty or preservation of the states, but rather end their supremacy.
RIGHTEOUS ANGER AT THE WICKED STATES is such a bundle of insight and perversity, erudition and error that one hardly knows what to do with it. No one will leave this book unclear of its thesis or accuse Johnson of lacking verve. Nor will anyone accuse him of not immersing himself in the primary documents of the Founding era or failing to document the numerous sources he has read. Johnson credits the completion of his project and his thesis that righteous anger at the wicked states was overwhelmingly the strongest motive behind the constitutional revolution of 1787 to the easy accessibility that electronic access to the Founders’ writings has now made possible. Reading the entire record of the constitutional moment, he implicitly suggests, points to his thesis. Unfortunately, the same technology that facilitates access to the Founders’ writings also tempts Johnson to cut and paste quotes excessively from them. Some pages are little more than strings of quotes, some summoned several times to make the same point.
More broadly, RIGHTEOUS ANGER AT THE WICKED STATES bears the marks of an account that relentlessly purses an important truth at the expense of complexity and balance. The need for a taxing power to raise revenue to restore federal credit and the irresponsibility and wickedness of the states have hardly been ignored as motives for constitutional reform (this argument has been most recently pursed by Edling (2003)). Nevertheless, this interpretation has never been so passionately stated or so comprehensively defended. Johnson reminds us that the Framers were first state-builders who sought to construct an independent and strong national government that could exercise power with purpose. More specifically, seemingly because of the expertise that he gained in his former position as a tax attorney, Johnson is particularly astute at explaining many of the complex financial matters of the early republic. His accounts of the fiscal failures of the government under the Articles of Confederation and of Alexander Hamilton’s financial package of 1790 are first rate, indeed among the best concise descriptions in print. In only a handful of pages, Johnson establishes the depth of the states’ unwillingness to pay for the loans taken out during the Revolution, the implications of that unwillingness, and the reasoning behind Hamilton’s program. Johnson’s description of Hamilton’s financial program is particularly insightful because he reminds us that even Hamilton was not really willing to redeem fully the Revolutionary war debt. Borrowers had been promised six percent interest on their debt, but were paid only slightly over four percent under Hamilton’s program. This maneuver cut roughly by half what creditors were paid.
But if Johnson is often intelligent and always clear, he is also often clearly wrong. Two examples of specific errors of fact occur when Johnson suggests that Thomas Jefferson never accepted [*646] Madison’s theory of an extended republic and that Madison abandoned his “grand theory” shortly after formulating it (pp.10,70, 252). In 1795, Jefferson wrote, “I suspect that the doctrine that small states alone are fitted to be republics will be exploded by experience with some other brilliant fallacies accredited by Montesquieu and other political writers. Perhaps it will be found that to obtain a just republic (and it is to secure our just rights that we resort to government at all) it must be so extensive as that local egoisms may never reach its greater part; that on every particular question, a majority may be found in its councils free from particular interests, and giving, therefore, an uniform prevalence to the principles of justice” (Thomas Jefferson to Monsieur D’Ivernois, Feb. 6, 1795, Boyd 1950, XXVIII, at 263). Similarly, Madison did not abandon his theory of the extended republic within four years of its articulation in FEDERALIST No. 10 and adopt its opposite, the Montesquieuan ideal that republics are best confined to a small territory with homogeneous interests. Actually, Madison continued to refine his understanding of the relationship of size and republicanism and to defend the theory of the extended republic – including the propositions that factions were inevitable in free governments and that a multiplicity of interests in a large republic provided the “best provision for a stable and free Gov[ernment]” – as he penned essays for the opposition newspaper, the National Gazette in in the early 1790s (see Hutchinson and Rachal, 1962, at XIII, 132-133, 137-139, 157-169, 178-179, 197-198, 370-372). Johnson follows John Zvesper (1984) in suggesting that Madison abandoned one “system” (the extended republic) in favor of another (state sovereignty). One of the problems in Johnson’s use of Zvesper’s thesis is that Johnson does not understand that Madison believed both that factions were inevitable in free governments and would provide protection for individual rights and stability for the republic and that a “consolidation” of interests and affections was desirable across the whole extended republic and that it would facilitate the formation of popular majorities on just principles. Madison’s desire for such a consolidation in the 1790s, however, did not signal his turn toward a Montesquieuan small republic theory. It signaled his desire to unite the people behind their true interests in opposition to Hamilton’s program (cf. Zvesper 1984, Gibson 2005).
In addition to these specific and revealing, but relatively innocuous errors, however, RIGHTEOUS ANGER AT THE WICKED STATES also includes egregiously slanted broader interpretations of the Anti-federalists and Madison’s political thought and a reductionistic account of the motives that led to constitutional reform. In particular, the Anti-federalists are treated by Johnson as masters of the hypothetical horrible and confused and contradictory cranks. They were not, he suggests, champions of civil liberties, opponents of slavery, or nascent democrats. “Anti-federalists were not looking for democracy,” he argues; “they were looking for state power” (p.181). The real democrats, Johnson suggests, were the Federalists who endorsed popular sovereignty.
Such brusque claims run up against a growing body of scholarship that has established that at least some of the Anti-federalists were as thoughtful as [*647] their Federalist counterparts – thoughtful enough indeed to deserve recognition as an enduring voice in the American political tradition. Johnson’s suggestion that the Anti-federalists were really committed to state power, not to democracy or civil liberties, splits what many Anti-federalists believed was indivisible. Protecting state sovereignty, many Anti-federalists held, was a necessary condition of achieving democracy and protecting civil liberties. Conversely, to characterize the Federalists as democrats because they espoused the doctrine of popular sovereignty ignores the narrow conception of popular sovereignty that they held and the structure of the political system that they designed and defended. Federalists defended popular sovereignty primarily as the right of the people to make and unmake their constitutions and to hold their representatives accountable at elections. The Constitution was deliberately designed to transfer decision-making on key issues from the states where they would be monitored and easily influenced by popular majorities to the national government where representatives would be less directly accountable and legislative majorities would rule. Only one branch of the national government under the original Constitution – the House of Representatives - was directly elected by the people and members of that branch were elected from vast electoral districts. There were over 1600 state legislators in all of the states combined at the time of the calling of the Constitutional Convention. There were only 65 national representatives in the first Congress (Jensen 1978, p.392, n.8). According to Madison, there were between 300 and 400 representatives in Massachusetts alone. This state, however, elected only eight representatives under the new Constitution. Similarly, there were 232 state assemblymen in North Carolina in 1787, but this state was allotted only 5 representatives under the new Constitution (see THE FEDERALIST No. 55, p.341; Wood 1988, p.15). Michael Zuckert (2003) aptly describes the Federalist constitutional design based upon belief in “the sufficiency of a moderate number of representatives,” long terms of office, indirect methods of selection, and distance between the representatives and the people as an embodiment of “long leash” republicanism (THE FEDERALIST No 56, 348. See also Gibson 2007; Miller 1998). This system may ultimately be defensible as ‘wholly popular” and “strictly republican,” but it cannot be simply defended as democratic (THE FEDERALIST No. 14, p.100; THE FEDERALIST No. 39, p.240).
Johnson’s problems continue in his analysis of James Madison who is always near the center of RIGHTEOUS ANGER. First, Johnson exaggerates Madison’s success at the Convention and the degree to which Madison “accomplished a nationalist revolution” (p.277). Forrest McDonald (1985, pp.208-209) has calculated that “of the seventy one specific proposals that Madison moved, seconded, or spoke unequivocally in regard to, he was on the losing side forty times.” The most important of these losses included Madison’s proposals for proportional representation in both houses, for a universal veto of all state laws, and for a revisionary council composed of members of the judiciary and executive branches (not mentioned by Johnson). Scholars have also documented the small [*648] state counter- revolution that took place in the late stages of the Convention and the impact of Madison’s opponents on the final structure and design of the Constitution (see especially Jillson 1988; Robertson 2005). Furthermore, Christopher Wolfe (1997), James Hutson (1987), and Michael Zuckert (1986) long ago observed that Madison’s famous theory of an extended republic made virtually no impact at the Constitutional Convention. More recently, Akhil Reed Amar (2005) and (most decisively) Larry Kramer (1999) have established that the extended republic also had little impact in the ratification struggle. Madison’s theory of the extended republic, Kramer has thus concluded, cannot be thought of as the theory immanent in the Constitution. Collectively, the thrust of this recent scholarship has been to establish Madison more as a brilliant, but eccentric, outlier than either a typical Federalist or their chief theorist. It has also established Madison’s prescience over his influence. Madison, according to this interpretation, was more the author of our Constitution – the post Civil War constitution with the 14th amendment – than the original one (Amar 2005, at 43-44, 523, note 95; Kramer 1999; Zuckert forthcoming).
Johnson is aware of at least some of the scholarship and its implications. His response, however, involves soft-pedaling claims and issuing bald assertions that restate the very points that scholarship has challenged. So, for example, even though he is aware of Kramer’s argument that Madison’s theory of the extended republic had little impact in his generation, he obdurately declares that “Madison’s theory provided the theoretical underpinnings for the constitutional revolution that was adopted” (p.73). More substantially, Johnson also provides a comparison between a few of the proposals that Madison made and the ones that the Constitution embodied. Madison, Johnson argues, proposed and got popular ratification of the Constitution, proposed a universal negative but nevertheless got prohibitions against the states, proposed proportional representation in both houses of Congress and got it in one, proposed a scheme of separation of powers and essentially got it, and proposed that the government be granted a power to revenue and got it. By Johnson’s calculations, this makes Madison eighty percent successful (p.127).
None of this is convincing. Madison’s signature reforms were proportional representation in both houses and (even more) the universal veto of state laws. The loss of proportional representation in the Senate and the universal veto, as Johnson acknowledges, left Madison devastated. If he had been as successful as Johnson suggests, he would not have been so despondent immediately after the Convention. In particular, at the Convention, Madison predicted that passage of equal representation in the Senate would allow small states to extort the large states, to obstruct just polices, and to impose unjust ones (“Speech of June 30,” in Hutchinson and Rachal 1962, X, at 90). As Publius, he did not offer a principled defense of equal representation in the Senate as just or pretend that he believed that equal representation was necessary for small states to defend themselves against large ones. Instead, he treated equal representation as an expedient that resulted from compromises that were [*649] unavoidable (See Madison’s unenthusiastic defense of equal representation of the Senate in THE FEDERALIST No. 62, 377-378). The universal veto was the “republican remedy” by which he hoped to protect minority and individual rights from violation by popular majorities within the states. It was the constitutional embodiment of his theory of the extended republic. Madison did not believe that the alternatives for it that emerged in the course of the convention – the national supremacy clause, the restrictions against the states in Article I, Section 10, or judicial review - were adequate. A judicial remedy, Madison suggested, was inadequate because it was better to prevent passage of the law in the first place than declare it void after it was passed. He also observed that a state that encroached upon the legislative rights of the union was not likely to abide by a judicial ruling. Open defiance, in turn, raised the possibility that coercion would be necessary against disobeying states (Madison to Jefferson, October 24, 1787, Hutchinson and Rachal 1962, X, at 211).
The three unqualified victories for Madison that Johnson considers – popular ratification of the Constitution, a government based upon separation of powers, and provisions for a federal power to raise revenue - were hardly Madison’s alone. They were indeed consensus provisions, which of course is why they passed. To be sure, no other single delegate was more successful than Madison. Furthermore, his case to be called “the Father of the Constitution” strengthens if we include the contributions he made taking notes at the Convention, defending the Constitution and setting forth a definitive exposition of it as Publius, helping to insure ratification in Virginia, sponsoring the Bill of Rights in the 1st Congress, and acting as a lifetime guardian and interpreter of the Constitution. Nevertheless, when late in his life Madison eschewed the claim to be “the writer of the Constitution” and called it “the work of many heads and many hands,” he was not being falsely modest (James Madison to William Cogswell, March 10, 1834, in Farrand 1966, vol.3: 533. My emphasis). He was instead pointing to the empirical reality that the Constitution that was drafted in Philadelphia was far different from the one he had initially envisioned.
Johnson’s characterization of Madison as a hyper-nationalist during the 1780s also forces him into a silly and hyperbolic account of Madison’s supposed transformation from a “barn-burner nationalist of the 1780s” to a “states rights fire-eating gentleman of the 1790s” (p.256). The best exploration of what was “fixed beneath the flux” in Madison’s political thought can be in Lance Banning’s important study, THE SACRED FIRE OF LIBERTY. (1995; quote is from p.4. See also Gibson 2002; 2003). Banning establishes that Madison was neither the hyper-nationalist that Johnson thinks he was in the 1780s or a states’ rights man in the 1790s. Remarkably, in evolving his case that Madison was inconsistent, Johnson evokes Jefferson’s Kentucky Resolution, not Madison’s Virginia Resolutions (p.250). The outline of the Virginia Resolutions is set forth in embryonic form in THE FEDERALIST Nos. 44 (at p.286) and 46 (at p.298) where Madison observes that the state governments will sound the alarm to the people if the national government becomes tyrannical. [*650] Neither in The Federalist nor in the Virginia Resolutions did Madison defend theproposition – set forth by Jefferson in the Kentucky Resolutions and later elaborated by John C. Calhoun - that a single state could nullify an act by the national government. Madison transformed primarily in the sense that his concerns moved from the belief that majority factions posed the greatest threat to rights in the 1780s to the belief that a minority faction was in control of the national government in the 1790s and could not (as he had suggested in Federalist No. 10, at p.80) be simply outvoted under the forms of the Constitution.
Furthermore, to the degree that Madison transformed, his transformation did not, as Johnson suggests, result from his growing personal antagonism to Hamilton and his correspondingly affinity for Jefferson. When Jefferson was away in Paris, according to Johnson, Madison could act as “the entepreneur who built the Constitution,” but with Jefferson back on the scene Madison resumed his role as Jefferson’s “loyal lieutenant.” (p.255) This account relies mostly on a self-serving letter by Hamilton in which he speculates about why Madison was now leading a conspiracy with Jefferson against him (Hamilton to Edmund Carrington, May 26, 1791, in Syrett 1966). It also relies upon characterizations of the relationship of Madison and Jefferson that were abandoned fifty years ago with the emergence of serious Madison studies. (For Madison’s independence from Jefferson see Brant, 1941-1961 and Burstein and Isenberg, 2010). Madison argued that he had attempted to abide by the Constitution as it had been understood when it was drafted in Philadelphia and ratified, but that Hamilton had deserted him and attempted to administer the government into the British system that the New Yorker had fought for at the Convention (Interview with Nicholas P. Trist, September 27, 1834, in Farrand 1966, vol. 3, at pp.533- 34). Scholars should also treat Madison’s explanation with suspicion, but it deserves at least as much consideration as Hamilton’s.
Finally, Johnson’s goal of dismissing other motives of the Framers and thus by implication other possible purposes of the original constitution is achieved by argument fallacies, interpretative errors, and a general strategy of pooh-poohing alternative explanations. For example, he argues that the desire for commercial regulation could not have been a strong motive for constitutional reform because none of the mercantilist programs pursued as “regulations of commerce” were subsequently enacted. He further contends audaciously that “the Founders saw no substantial burdens on interstate commerce that needed to be liberalized or even discussed” (pp.190-191). Really? First, the subsequent history of commercial regulation cannot be used to establish the Framers’ intentions with regard to it. Second, the desire to prevent commercial warfare between the states (and by implication the desire to create a common market between them) was one of the explicit “vices” that Madison identified with the Confederation government and hoped to alleviate by the enactment of a new constitution.
If Johnson’s dismissal of commercial regulation as a motive for constitutional reform results from a POST HOC fallacy, his dismissal of Shays’ rebellion results from his inability to place himself [*651] in the historical context of the Framers. Shays’ rebellion, he assures us, was easily defeated and was not an independent motive for constitutional reform, but rather only reaffirmed prior beliefs about the imbecility of the states. Hence, it could not be a real reason for constitutional reform. This may seem true to Johnson from a perch of two hundred years after the event, but many of the Framers were mortified by this revolt of “desperate debtors.” Contrary to the accusations of Charles Beard and the heirs of the Progressive interpretation, this was not some simple concern for a leveling spirit that endangered their economic interests. Trained in classical texts that taught them that republics were naturally turbulent and short-lived, the Framers saw Shays’ rebellion as evidence of the imminent death of their republic. Such an event, they further believed, would lead to the establishment of a monarchy or dissolution of the union into separate confederacies and then the introduction of European style standing armies and perpetual debt and war in North America (For the depth of the Founders’ fears in this regard, see Hendrickson 2006). Henry Knox’s missives about Shays’ rebellion created such a stir among the Framers because they understood this event through the prism of this history and feared that the promise of the Revolution was lost.
Together, Johnson’s unfortunate interpretations of the Anti-federalists and Madison and his single motive analysis of constitutional reform discredit this study and should lead us to ask why he presents such slanted and vulnerable interpretations. Why pose a single motive interpretation of the formation of the Constitution when voluminous research has established that the Framers – none more than James Madison – saw a constellation of problems in 1787 and viewed the Constitution as a targeted response to all of them? Why write the Anti-federalists out of the story of the original meaning? Why suggest a radical transformation in Madison’s career when better explanations are now available?
The answer is obvious. Johnson’s unbalanced interpretations spring from his desire to refute the “new federalism.” If “righteous anger at the wicked states” is the overwhelming cause of constitutional reform and strengthening the national government to address this problem its overwhelming purpose, then Kennedy and the “new federalists” are surely wrong. If the Anti-federalists are written out then the new federalists’ claims about state sovereignty are severely weakened. Similarly, Johnson has to exaggerate Madison’s initial nationalism and treat it as a heroic episode in a flip-flop career because Madison the nationalist is more valuable to Johnson than Madison the states’ righter. In short, Johnson’s thesis that the Framers were motivated by a righteous anger at the wicked states and the tortured interpretations that support it reflect more his own righteous anger at the new federalists than it does a defensible understanding of the movement for constitutional reform or the purposes of the original Constitution.
Remarkably, however, the “new federalism” remains behind the scenes in this study. Johnson never provides a detailed analysis of it in either the Rehnquist or Roberts’ Courts. He thus also never draws a tight connection between his historical study and recent rulings. We are instead treated with a [*652] few cantankerous jabs at selected rulings and told only that the Constitution was written to strengthen the power of the national government, not limit that power. This is a valuable truism, but not one that provides much guidance. As UNITED STATES v. COMSTOCK (2010; upholding Congressional authority to order civil commitment of sex offenders after their release from prison against a tenth amendment challenge) illustrates, the Court has hardly been uniform in its protection of state sovereignty. Johnson should have given readers of RIGHTEOUS ANGER an explicit payoff by addressing the vexing issues that the Court faces as it attempts to balance state and national powers in such areas as preemption, tenth amendment limits on federal power, sovereign immunity, and the proper reach of the commerce clause into traditional state powers.
With all this said, Johnson may have the right target. The Supreme Court’s “new federalism” may well deny the national government essential powers that it needs to address problems never envisioned by the Framers. The rulings emanating from it may also be poor constitutional rulings, certainly based on a non-originalist interpretation or even a more subtle originalist one. Johnson, however, has not proven this. He has instead given us a flawed and instrumental history of the framing of the Constitution that should be questioned by historians and constitutional theorists alike.
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CHISHOLM v. GEORGIA, 2 U.S. 419 (1793).
UNITED STATES v. COMSTOCK, 650 U.S. --- (2010).
© Copyright 2010 by the author, Alan Gibson.