Surprising ideas and events abound when studying the American war for independence and the early republic. Let’s take a look!
When Britain’s moves against slavery pushed American colonists to support independence
In the mid-18th century, abolitionism stirred in the American colonies among religious sects such as the pacifistic Quakers. In Britain, activists and politicians were at work as well — to end the slave trade and what little slavery there was in Britain itself — and significant developments unfolded that impacted America’s coming revolution and later political development. In 1772, the British courts handed down a ruling that changed the practice of slavery in the motherland and worried Americans invested in slavery. It was determined that James Somerset, a black slave who had been brought to Britain and escaped, was free, as Britain itself had no positive laws establishing and protecting slavery. Lord Mansfield, issuing the decision, threw out the old practice of respecting colonial laws when it came to this issue. He also called slavery “odious.”
To American slave-owners, it appeared Britain, now essentially free soil, was turning away from slavery. This caused much concern. The Somerset Case signaled that British courts took upon themselves the power to end slavery — if it could be ended in the motherland, it could be ended throughout the empire. Colonial law didn’t matter, British law did — and British law did not uphold slavery. More evidence of this appeared when the Earl of Dunmore declared during the American Revolution that any American slave in Virginia that escaped and came to fight for Britain would be freed. Britain made this official policy throughout the colonies. Large numbers of slaves fled their American captors. South Carolina and Georgia lost an estimated one-third of their slaves.
Concerns over protecting slavery played a role, therefore, in American views toward the revolution and the new government they would establish. Southern states like Virginia, Maryland, South Carolina, and Georgia saw increasing support for the fight for independence. Slavery had to be preserved. America would seek compensation from Britain for lost slaves after the war — unsuccessfully. The Patriots were sure, however, to work relevant safeguards into constitutional law. The Somerset ruling had established for Britain that a slave going from one part of the empire to another could find freedom. So the U.S. Constitution blocked this. Article IV, Section 2 reads: “No Person held to Service or Labor in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labor…” Other elements solidified slavery as established law: the slave trade was preserved for decades, to allow slave-owners time to import more slaves after losing so many during the war (and in response to abolitionist efforts to end the slave trade), and congressional representation would include the counting of slaves as three-fifths of a person. Slave-owners would not make the same mistake in U.S. law that had been made in British law.
When Thomas Jefferson and James Madison plagiarized George Mason
The Declaration of Independence and the Constitution contain language and principles that echo George Mason’s 1776 Virginia Declaration of Rights. The Virginia document begins by stating “all men are by nature equally free” and possess “inherent rights”: “the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness…” Only slight changes — some to add flourish — would be adopted for the opening lines of the Declaration of Independence. Power, Mason continues, is derived from the people; politicians are to be the “servants” of the people, “at all times amenable to them,” a slightly more radical statement than the “consent of the governed” line employed by Jefferson, but in the same spirit. Section 3 makes clear that proper government is to secure the safety and happiness of its citizens, who have the right to alter or abolish it for failing to do so.
Section 8 establishes for Virginians the right to a speedy trial before an impartial jury, similar to the later Amendments V and VI of the Constitution. Further, no accused individual will be forced to testify. The Bill of Rights declares that property cannot be seized without just compensation, whereas the earlier Virginia Declaration makes no mention of reparations, only requiring an act by the legislature. Section 9 — “That excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted” — is copied directly in Amendment VIII. Both documents condemn searches and seizures without specific warrants and firm evidence. Freedom of the press and religion, and the right to a well-regulated militia, are codified in both. Finally, the Virginia Declaration insists that the executive and legislative bodies must “be separate and distinct from the judiciary,” touching lightly upon the separation of powers that is implied, but not declared, in the first few articles of the Constitution.
When the states saw themselves as thirteen sovereign republics
Article II of the Articles of Confederation (America’s first try at a constitution) stressed that “Each state retains its sovereignty, freedom, and independence…” Any “power” or “right” not explicitly granted to the federal government — and there were few in this short document — belonged to the states. Outside of war, treaties, coinage, trade, and a few other purviews, Congress could do little in terms of national policy; state legislatures had the power to do what they liked. In later articles, the union was framed as a “league of friendship” for mutual defense and benefit; they were “binding themselves to assist each other” in the event of an attack from foreign powers. Further, citizens were assured free entry and exit from each state, something you might see in treaties between sovereign nations (the European Union comes to mind). In Article VI, each state is instructed to maintain a militia — rather than the central government operating a military force (similarly, states would levy taxes; Congress could not). Finally, note that in this document the “United States” are plural, rather than the modern singular; i.e. “each of the United States…” Clearly, this new system of government was viewed as a virtual alliance of independent powers.
When Anti-Federalists were idiots and boycotted the Constitutional Convention
In 1787, Federalists arranged a convention in Philadelphia to reform the Articles of Confederation, which they saw as giving too much power to individual states, leading to harmful policies of various sorts: the continued confiscation of Loyalist property, blocking Loyalists from seeking reparations in court, inflating the money supply, and so on. Anti-Federalists, responsible for these sorts of policies and comprised of the more radical Patriots of the revolutionary era such as George Clinton, Sam Adams, John Hancock, and Patrick Henry, opposed the types of reforms that Federalists envisioned, which would force the states to submit to the authority of a national legislature — the states would no longer be able to do as they pleased. The Anti-Federalists, seeing a strong central government as a betrayal of the revolution, chose to boycott the Philadelphia convention. Regardless of what the convention decided to do to the Articles, the changes would need to be approved by state legislatures, and the Anti-Federalists were confident this would not come to pass.
The boycott would mean an increasing loss of control for the Anti-Federalists. Their majority could have blocked the convention, or could have attended the convention and steered the course of events. They likely could have saved the Articles and tightly limited the scope of reforms. Instead, they gambled on the state legislatures and lost. The Federalists were able to design a new government without interference, and were better organized to begin working in the state legislatures for ratification. The Anti-Federalists played catch-up and made various additional mistakes. The Federalists were able to push their new Constitution through the state legislatures — the line of defense the Anti-Federalists had relied on failed.
When the Founding Fathers saw Big Government as a vital check on state injustices
With states continuing to seize Loyalist property, block British creditors from collecting American debts, and mishandle the money supply, Madison sought, with a new constitution, a federal check on state power.
In Vices of the Political System of the United States (1787), he pointed to the dangers of majority rule, arguing that representatives were more often driven by “ambition” and “personal interest” than the “public good.” Such officials banded together, at times fooling voters and honest politicians by framing their own interests as the common good, resulting in the passage of unjust laws. However, “a still more fatal” flaw of democracy was that clashing interests were rarely balanced affairs. The poor vastly outnumbered the rich, for instance, a major problem (see How the Founding Fathers Protected Their Own Wealth and Power). “All civilized societies are divided into different interests and factions, as they happen to be creditors or debtors — Rich or poor — husbandmen, merchants or manufacturers — members of different religious sects — followers of different political leaders — inhabitants of different districts — owners of different kinds of property &c &c. In republican Government the majority however composed, ultimately give the law.” The minority could thus be crushed. Here Madison’s class concerns over property confiscation, breaking contracts with creditors, and so on are made clear, alongside his traditional advocacy for freedom from religion.
His solution was “an enlargement of the [decisionmaking] sphere.” Taking power up to the federal level would mean more public officials involved in policy. A misguided “passion is less apt to be felt and the requisite combinations less easy to be formed by a great than by a small number.” A United States Congress with real power would have many more members than a state legislature, and its members would be more ideologically and geographically diverse. There would exist “a greater variety of interests, of pursuits, of passions, which check each other.” When states stepped out of line — when Anti-Federalists passed injustices — representatives from other states in the central Congress could restrain them. A federal government could “control one part of the Society from invading the rights of another.” Madison framed this as the establishment of neutrality that would protect private rights and minority rights. He acknowledged ambition and special interests would be just as powerful a force in a United States Congress, but establishing such a legislative body was the only way to prevent the abuses of the states. The states would have to regulate each other at a higher level of government.
The federal government, Madison noted, would at the same time be “sufficiently controlled itself,” as it was unlikely enough states would establish “an interest adverse to that of the whole Society.”
Later, the Virginia Plan, Madison’s draft for a new constitution at the Philadelphia Convention in 1787, was expectedly antithetical to the Articles of Confederation and Anti-Federalist ideology. Under the Articles, states had broad power to do as they pleased. Congress had supremacy in only a handful of policy areas, and could raise no taxes to support its legislation. Further, this was a government without a chief executive or federal judges. The Virginia Plan, which was not enacted in full but served as a foundation to commence design of a new government, greatly expanded the power of Congress. Congress would be able to pass laws that the states were bound to follow; it would be able to veto state legislation: “Resolved that each branch ought to possess the right of originating Acts… to legislate in all cases to which the separate States are incompetent, or in which the harmony of the United States may be interrupted by the exercise of individual Legislation; to negative all laws passed by the several States…” Congress would be representational, rather than granting each state the same number of members — another idea distasteful to Anti-Federalists. The plan further established executive and judicial branches, other bodies of power over the states. Such top-down designs would cause much consternation among the Anti-Federalists and other supporters of the Articles.
When George Clinton insisted the U.S. was too big and diverse for democracy to work
Founding Father George Clinton, Anti-Federalist New York governor and future vice president, writing as “Cato” in the New York Journal on October 25, 1787, argued that the states were too different for a federal government to properly function. Given the “dissimilitude of interest, morals, and politics” inherent across such a wide geographical area, federalism “can never form a perfect union, establish justice, insure domestic tranquility, promote the general welfare, and secure the blessings of liberty…” Citing Montesquieu, Clinton insists that the “public good” is incomprehensible in a larger republic, with many competing interests — what’s good for some is disastrous for others. Further, a national legislature would invest too much power in each member, the power over too many ordinary citizens and too vast a region, which would go to members’ heads: “there are too great deposits to trust in the hands of a single subject, an ambitious person soon becomes sensible that he may be happy, great, and glorious by oppressing his fellow citizens…” And bigger nations create richer men, who are more self-serving leaders.
Clinton goes on to posit that some of the states themselves are already too big for ideal self-government. If state legislatures and governors were having trouble holding their states together, what hope did a federal government have keeping the states unified? Massachusetts was experiencing insurgency and threats of secession from its province of Maine. In a similar manner, the law under federalism would be “too feeble” to actually work; there would need to be a standing national army, an old fear of the American Patriots after their experience with Britain. Force would be needed to enact and enforce federal law and quell rebellions and secessions against it.
Clinton hits upon several truths and keen insights, but offers a theory of democracy that is not fully fleshed out. Smaller areas may indeed feature more individuals of similar backgrounds, lifestyles, and ideologies. When he writes that “the strongest principle of union resides within our domestic walls,” we’re in the realm of truism. Of course more similar people will be more united. But to seek the greatest unity of interests is to slowly abandon the concepts of democracy and nationhood altogether. Clinton insists that federalism would feature too much division, and then sees that states, rife with division themselves, should be broken up into smaller political bodies as well: “The extent of many of the states of the Union, is at this time almost too great for the superintendence of a republican form of government, and must one day or other revolve into more vigorous ones, or by separation be reduced into smaller and more useful, as well as moderate ones.” More states, smaller states. But this dissection could continue. A town or city may be more united than the entirety of a state. Did not New York City threaten to leave New York if the state did not ratify the Constitution? But even then the quest for likemindedness doesn’t stop. Clinton brought up Athens as an example of democracy working best small-scale. But Athens had its rich and poor, its many contradictory interests. Should democracy only be tolerated on a scale smaller than a city? Like in a poor neighborhood? The point is that at any level of governance, divergent interests, morals, and lifestyles exist. There may be more cohesion and similarities on many fronts, but division is unavoidable. Clinton attempts to justify a rejection of federalism on the grounds of regional and constituent dissimilitude, but that could justify the termination of democracy anywhere, at any level. It makes one wonder how nations, states, cities, and more can be justified — must they all be broken up?
Alternatively, if one accepts that democracy entails division (with every vote, between a minority and majority) and factionalism and competing visions of the common good, then it’s easier to notice that democracies at higher levels, such as a “consolidated republican form of government” proposed by the Constitution, can be safeguards of liberties as much as dangers to them. By seeking difference and an “unkindred legislature,” by expanding the sphere of contradictory interests, one has the chance to root out tyranny in every state, not just your own. Madison and the Federalists understood this — letting states do whatever they liked was a recipe for oppression by itself. Clinton brings up the South, where “wealth is rapidly acquired” and there existed a “passion for aristocratic distinction,” where “slavery is encouraged, and liberty of course less respected and protected…” He compares this to the North, “where freedom, independence, industry, equality and frugality are natural…” This feels prescient, coming right after Clinton’s discussion of insurrection and secession. The United States is too diverse and different, it will tear itself apart. Nevertheless, Clinton would rather leave a place “where slavery is encouraged, and liberty of course less respected” to its own designs. Rather than using federalism to ensure higher principles are followed in all states. Clinton complains of oppression, but won’t do anything about it — thinking only of how, in a powerful Congress, the South could infect the North, not how the North could have a positive influence on the South. Democracy is a messy business. It can bring abuses and tyranny — or their opposites.
Clinton’s other points — that decisionmaking power over an entire nation is more corrupting than decisionmaking power over a state; that larger nations create richer men; that richer men are more corrupt — go unsupported. They may be true, they may be fictions. But his suggestion that a national army would be necessary to put down insurrections and violations of federal law again rings true to the modern ear. The states themselves can be bound to enforce federal law, through militias or police and guardsmen; a national military can be banned from deploying on U.S. soil under most circumstances. But at some point all that can fail — states can rebel, and the forces of other states or a national army must step in. Higher-level militaries are then like higher-level democracies. They create the potential for tyranny for all, but also the potential to preserve and expand liberty for all. Again Clinton only acknowledges the potential for harm — more nuance, a holistic view, is needed.
When people wanted to ratify the Constitution before finishing it, to Patrick Henry’s horror
The Constitution was pushed through state legislatures only with a promise. If you pass this, Federalists assured the Anti-Federalists, a bill of rights will come later. Patrick Henry insisted, in a speech in Richmond on June 24, 1788, that the Constitution be amended before Virginia ratified it, not after. He saw approval on condition of amendment as a dangerous idea: “Evils admitted, in order to be removed subsequently, and tyranny submitted to, in order to be excluded by a subsequent alteration…” Why submit to tyranny and then try to get out from under it? Why not avoid tyranny in the first place? It was all quite backward: “Do you enter into a compact of government first, and afterwards settle the terms of the government?” Henry had a good point, given what the compromise entailed. After the Constitution was established as the law of the land, a bill of rights would go through the amendment process outlined in Article V. Three-fourths of the states would need to approve it — there was no guarantee of passage. Regardless of the popularity of certain freedoms, regardless of Anti-Federalist power or the general political makeup, there was a nonzero chance the Constitution would be ratified but a bill of rights would fail. Understandably, Henry was unwilling to take that chance, calling instead for amendments first. The legislature ignored him, narrowly ratifying the Constitution the next day.
(George Clinton and Patrick Henry were both concerned about risks to liberties. One could frame Clinton’s thinking in a similar way to Henry’s. Why submit to the potential tyranny of a national legislature or national army? Why risk it? The difference here is what justifies the risk. The potential reward of establishing and protecting liberty in all states for all people justifies it. But in the Henry case, there is little to be gained by making the gamble. Passing a law that may or may not be amended later? There’s no inherent reward. The smarter play is amending the law first and then passing it.)
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