We return with a second installment of Fascinating Moments in Early U.S. History. See the first article here.

When two Hamiltons argued you shouldn’t be punished for saying true things (plus, you should have the right to a jury)

We must rewind a little for this one. In the Peter Zenger trial of 1735, before the creation of the United States, Philadelphia attorney Andrew Hamilton argued that there needed to be a higher bar in British law to mark written speech as “seditious libel” — it should not solely stem from whether a public official’s reputation was damaged. Yes, you could get in trouble just for this! Zenger, a publisher, was charged with seditious libel after criticizing the royal governor of New York, who felt his reputation was impugned.

Hamilton argued that it mattered whether the statement was true or false, what the author’s intent was. “The Words themselves must be libelous,” Hamilton said in court, “that is, false, scandalous, and seditious or else we are not guilty.” A guilty verdict, he continued, would imply that the words Zenger published were false, when they were in fact “notoriously known to be true.” After reaffirming one’s right to criticize the government, Hamilton said that “it is Truth alone which can excuse or justify any Man for complaining of a bad Administration” but “nothing ought to excuse a Man who raises a false Charge…” If the law treated these things the same, then it was the “bare Printing and Publishing a Paper” that was libelous, the mere release of “Informations.” People deserved the right to print true things, even if someone’s reputation took a hit.

Hamilton further argued that juries, not judges, should decide whether something was libelous, not just who published it, saying that “leaving it to the Judgment of the Court, whether the Words are libelous or not, in Effect renders Juries useless.” Yes, in this era the judges decided what was libelous in a given case and the juries merely decided who printed it! Hamilton questioned why juries were neutered for this particular crime. “I cannot see, why in our Case the Jury have not at least as good a Right to say, whether our News Papers are a Libel, or no Libel as another Jury has to say, whether killing of a Man is Murder or Manslaughter…” Decisionmaking power had to be taken from the judge and distributed to the people of the jury, for the sake of liberty and proper trials.

In the end, Hamilton essentially asked the jury to engage in jury nullification — even though a judge found Zenger’s published materials to be seditious libel, and Zenger confessed to publishing them, the jury found Zenger not guilty of publication and set him free.

But the law went unchanged, so everything had to happen again later, after the American founding. In the Harry Croswell case of 1804 in New York, the well-known Alexander Hamilton drew on Andrew Hamilton’s arguments. When a jury found Croswell, another printer and journalist, guilty of publishing what a judge ruled to be seditious libel against President Jefferson and others, Alexander Hamilton showed during appeal that what had been written was true. Allowing truth to be published without punishment, regardless of reputational harm to the targeted politicians, was the only “way to preserve liberty, and bring down a tyrannical faction. If this right was not permitted to exist in vigor and in exercise, good men would become silent; corruption and tyranny would go on, step by step…” Of course, Hamilton added, it would not do to have “a press wholly without control” — those who published falsities should still face consequences.

Hamilton insisted that juries decide these cases, for the same reasons one would support political democracy. It spread out power. A “fluctuating body…selected by lot” was safer for liberty and justice than a “permanent body of magistrates” who were part of the governmental system, would be influenced by the opinions of politicians, and, though this is at best only implied, may even have personal incentives to keep seditious libel laws more extreme. After all, one could write against a judge as easily as a president or governor. Judges held positions of power, just like those being attacked in the papers. “Men are not to be implicitly trusted, in elevated stations,” Hamilton said. “The experience of mankind teaches us, that persons have often arrived at power by means of flattery and hypocrisy; but instead of continuing humble lovers of the people, have changed into their most deadly persecutors.” This line may have referred simply to politicians, but came directly after comments on judges. It cleverly justifies both free criticism in the press and removing decisionmaking power from judges. The court might “make a libel of any writing whatsoever” if the judicial system continued to, pace Andrew Hamilton in the 1730s, “render nugatory the function of the jury.” 

Alexander Hamilton also praised the infamous Sedition Act of 1798, a federal seditious libel law that had expired in 1801. While it allowed Americans to be charged for defaming public officials or making rebellious, critical statements against the government in D.C., what Madison and the Republicans labeled a serious betrayal of the First Amendment but the courts ruled constitutional, it also vested power in juries and allowed the truth as a defense. If you could prove what you said was true, you could be declared not guilty. Therefore Hamilton called the act “honorable, a worthy and glorious effort in favor of public liberty.” The noble principles of this federal law should thus be applied to New York state law.

The appellate judges deciding the case deadlocked; Croswell’s conviction stood. But in 1805, the New York legislature modified state seditious libel laws, building in the Hamiltons’ reforms.

When Napoleon’s defeat indirectly caused a depression in the United States

The Panic of 1819, a financial crisis that caused a massive economic downturn in the United States, was caused by myriad factors. But the fall of Napoleon and the recovery of Europe played a role. After the Napoleonic wars, Europe’s agricultural production increased and American farms had a more difficult time selling their goods. Prices fell, along with profits. Therefore farmers struggled to repay loans to financial institutions, which had been extending credit far and wide during the earlier economic boom. When farmers could not pay their debts, the banks responded by turning to institutions that owed them debts: smaller banks. Banks demanded that other banks repay their loans, which banks could not do due to the lack of payment from individual borrowers. Banks were under considerable strain without individual repayments and with their own debts being called up — the national banking system, for instance, was still trying to pay off the Louisiana Purchase. Financial institutions began to go under, which continued the cascade. Fearful of losing their money if their bank was the next to go, Americans rushed to make withdraws, cleaning out their banks and causing them to fail. The Panic was a significant event in early nineteenth-century America, putting an end to the Era of Good Feelings — a time of economic and imperial growth — and plunging the country into an economic depression that lasted several years.

When states bypassed the free market and supercharged the economy

In the early nineteenth century, Democrats at the state level were interested in using government to create more prosperous economies — “state mercantilism.” This was in contrast to the federal level, where Democrats alongside Republicans were largely for free markets, free trade, and other anti-mercantilist policies. One aspect of state mercantilism was large construction projects that would increase and quicken the flow of goods within the United States, creating more profits for businesses, farmers, shipping companies, and so forth. When federal funding for such projects (such as those proposed by Henry Clay) failed, as a result of the Democratic Congress believing such things to be unconstitutional for the national government to do, the states moved forward on their own.

One major state investment was in railroads. Maryland, pushed by business interests in Baltimore, chartered the first American railroad firm, the Baltimore and Ohio Railroad Company. The B&O went west from Baltimore to the Ohio River and later to St. Louis. To get railroad projects off the ground, states would give land to railroad companies, at times seizing it from residents using eminent domain. The companies would then construct the lines on free land and sell off parts of the land back to Americans and other businesses. In addition to offering such sizable subsidies, states allowed and supported monopolies — one rail company would own the line being constructed across a state. The rail companies enjoyed no competition, set high rates, and raked in the revenue. They also sold company shares. With state aid, major railroads snaked from Baltimore, Philadelphia, and New York out across the U.S. and toward the Mississippi.

Canals were another major state investment. If connections could be made between water systems, goods could reach their destinations faster, generating higher company profits. So states funded the construction of canals, for instance Pennsylvania connected the Susquehanna River with the Ohio. The Erie Canal is possibly the most well-known and most successful project, with New York state, funded by New York business interests, linking the Mohawk River to Lake Erie. Goods could travel from the Atlantic Ocean to the Great Lakes; the Erie Canal created a major trade network between the Middle Region of the U.S. and the Old Northwest. As with railroads, canal projects hugely benefited the economies of American states, as well as that of the nation as a whole.

When the Shawnee leader castigated dependence, cultural corruption, and racial mixing

In the early nineteenth century, Shawnee leader Tenskwatawa, “The Prophet,” asserted that whites had corrupted Native American societies. American and European goods and technology had replaced traditional practices and eroded self-sufficiency. “Our men forgot how to hunt without noisy guns. Our women don’t want to make fire without steel…” Indigenous people, Tenskwatawa declared, had become dependent on the enemy: “now a People who never had to beg for anything must beg for everything!” Native Americans had once been “pure” and “strong.” Now they were weak and defiled. Whiskey had consumed them, and women had married white men to create “half-breeds.” It was not enough to protect indigenous land from further white encroachment (which is in fact blamed on cultural exchange). Tribes had to return to the “old ways,” their cultures purified and people made strong again. The Prophet demanded Native women abandon white husbands and their children to preserve racial homogeneity, a rejection of alcohol and food introduced or produced by whites, and a return to traditional clothing, hunting, tools, and so on (although guns were too useful for self-defense against whites, and should be kept). Commerce and interaction would cease entirely. Society could then be sacred and self-sufficient once more, as willed by the Creator.

When Andrew Jackson framed Indian Removal as a good thing for Native Americans, a humanitarian act

The Indian Removal Act of 1830 seized Native American land in existing states east of the Mississippi and forcibly moved indigenous people westward into American territories. It was proposed by President Andrew Jackson and passed by his party, the Democrats. Tribes that were rounded up and marched into what would become Oklahoma and Kansas (usually worse land than what they were leaving) included the Seminoles, Cherokee, Creek, Choctaw, Chickasaw, Sac, and Fox. All this represented a serious American betrayal of its promises and treaty commitments, and a major crime against humanity. Native peoples had been told they could remain in their lands if they engaged in agriculture and in other ways adapted to American society. The forced marches, which came after plenty of violence, were a humanitarian disaster. Do you recall the infamous “Trail of Tears”? Native Americans perished from the cold and from starvation. The Indian Removal Act is therefore remembered by most as a devastating and immoral policy. But at the time, it was lifted up as a wonderful thing for Native Americans. This was necessary to national identity and self-perception.

The framing of these events is different today, because there is a stronger need to justify oppression when it’s taking place; two centuries later, the narrative can shift a bit. When you set about to crush someone, you justify what you are doing as morally right. So Jackson, in his December 6, 1830 speech to Congress, declared that removal “will separate the Indians from immediate contact with settlements of whites; free them from the power of the States; enable them to pursue happiness in their own way and under their own rude institutions; will retard the progress of decay, which is lessening their numbers, and perhaps” even help them become “civilized.” Expulsion from their homes was the best thing for Native Americans. African Americans received similar ideological treatment in the United States: slavery was good for blacks (who were too stupid and uncivilized to care for themselves), giving them shelter, food, clothing, Christianity, and so on. Oppressors have to rationalize, to frame their deeds as humanitarian, not destructive. The descendants of oppressors, looking at the past, judge things slightly differently. While you can still find some who try to stress the victim benefits of slavery or Indian Removal to protect the image and moral character of the United States, most Americans would probably call these things wrong, tragic, and so on. At the least, they were bad for Native Americans and others. That is a different framing than Jackson’s. 

However, the full modern framing is still problematic and has not left behind the nationalistic ideology of the 1820s and earlier. Americans may reflexively call the mistreatment of native nations wrong or harmful, but there are two large caveats to this, which impede any further distancing from Jackson. First, the wrongs of Indian Removal, slavery, and so on are likely to be considered “mistakes.” The ideological position remains that the United States — its presidents, government, and people — is fundamentally good. In the past mistakes were made, but America always had good intentions (highly Jacksonian). This is rather different than acknowledging the self-interest, greed, conscious betrayal, racism, cruelty, violence, and so on necessary to devise and carry out Indian Removal. The idea that the United States might have had bad intentions is unthinkable for many people. Messing up while still being inherently good is a more palatable, patriotic image than committing premeditated crimes as a result of being inherently flawed, and many cling to it. This may be changing as leftwing sentiments and criticism grow more popular, but it holds true.

The second asterisk is that while Indian Removal would likely be labeled wrong or hurtful by most Americans today, it may more have the flavor of a “necessary evil.” It is very difficult for citizens to imagine a United States that doesn’t look precisely as it does today. The U.S. was meant to have its present borders and power — Manifest Destiny is still very much alive. The Trail of Tears and indigenous expulsion may have been bad, but they had to happen for America to fully possess the lands east of the Mississippi. If explorers and colonists hadn’t beat back native populations, the U.S. may not have existed; if Americans hadn’t done the same, the U.S. would not have fulfilled its destiny. History had to unfold as it did, with all its awfulness, so the U.S. could grow larger, more powerful, and be the greatest nation in the world. It would be highly interesting to conduct a poll, inquiring whether one would prefer a smaller, less influential, less powerful United States that hadn’t conducted Indian Removal, slavery, or other acts…or prefer reality, to have everything play out as it did to ensure American continental and global dominance. Many would choose the latter, making one question how wrong such things are actually judged to be, and highlighting who and what really matters.

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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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In his first volume of A History of the Ozarks, Brooks Blevins explores the antebellum history of the Ozarks region, arguing that past and contemporary depictions of white nineteenth-century Ozarkers as distinct from other Americans — primitive, isolated, ignorant — do not withstand scrutiny.^[1] The Old Ozarks (2020) is intended to provide a more nuanced portrayal of settlers and frontiersmen, to capture the complexities of local history and diversity of its people — rather than defined by the stereotypical “barefooted hillbillies” and “hicks,” Blevins posits “that the Ozarks, when shorn of the mythology…comes closer to being a regional microcosm of the American experience than to being a place and people of unique qualities.”^[2] Importantly, Blevins sees such stereotypes, coming to full power after the Civil War and in the twentieth century, as coloring historians’ views of the earliest Ozark communities.^[3] Like the explorers and novelists before them, historians placed too great an emphasis on Ozarkers’ particularities, masking their rather unexceptional American-ness. Blevins’ contribution, alongside other works of the past few decades in his own field and that of historical anthropology, helps break the spell.^[4]

To get a sense of the “exaggerations and oversimplifications” Blevins is working with, one might turn to the nineteenth-century American geographer and explorer Henry R. Schoolcraft, who makes many appearances in The Old Ozarks.^[5] Schoolcraft documented his observations of the Ozarks in his influential Journal of a Tour into the Interior of Missouri and Arkansaw: From Potosi, or Mine á Burton, in Missouri Territory, in a South-West Direction, toward the Rocky Mountains, Performed in the Years 1818 and 1819.^[6] He wrote of dirt-floor log houses “beyond the pale of the civilized world,” devoid of “comfort,” “cleanliness,” and modern conveniences. They were full of horns, skins, and other hunting trophies — few items of value. Noticing the dried meats kept indoors, Schoolcraft compared an Ozark home to a smokehouse. Children were dirty and dressed in buckskin, the girls ugly from a poor diet. Schoolcraft was dismayed to see women “doing in many instances the man’s work,” and to hear that many infants perished in the region due to a lack of basic medicine. These were people divorced from “refined society.” They were of the remote wilderness, battling native tribes, thieves, and nature.

Schoolcraft writes that he tried to engage the Ozarkers in “small-talk, such as passes current in every social corner; but, for the first time, found I should not recommend myself in that way. They could only talk of bears, hunting, and the like. The rude pursuits, and the coarse enjoyments of the hunter state, were all they knew.” This positions Ozarkers as different from other Americans — proper discourse occurred in all other corners, he had never needed to refrain from it elsewhere. Schoolcraft further complained of a greedy and dishonest guide and his sons, who abruptly abandoned Schoolcraft and his fellow explorers. Again, the exceptionalism of the Ozarkers is highlighted: the group “bore no comparison” to anything “we had ever before witnessed, but was rather characterized in partaking of whatever was disgusting, terrific, [and] rude.” Proud displays of skins outside homes, and other eccentricities, were likewise “novel.”

The geographer reported that settlers hunted and farmed a limited number of crops only to sustain themselves; there were no exports. They were too isolated and remote for that. Life revolved around simple subsistence, when more could in fact be produced, and tolerating the associated deprivations and hardships; the people, therefore, were both “lazy” and “hardy.” They were inferior to Americans back east in every conceivable way. “In manners, morals, customs, dress, contempt of labor and hospitality, the state of society is not essentially different from that which exists among the savages. Schools, religion, and learning are alike unknown.” Ozarkers, Schoolcraft writes, did not pray or observe the Sabbath. There was no reading or books, only “ignorance.” Residents knew nothing of the political happenings of the nation — not even who the president was — and did not wish to learn. Such “indifference” set them apart. Ignorance and faithlessness led to moral decay. The Ozarks were a place of not only sloth but vigilante justice and drunken brawls. Even young boys settled their disagreements with violence, “the act being rather looked upon as a promising trait of character.”

Clearly, Ozarkers were seen as backward and primitive. Schoolcraft compared them to indigenous people, but even went so far as to position them as, at least in some ways, inferior. Native Americans did the same tasks with “half the labour” — implying more intelligent methods — and fewer resources. The settlers had no interest in preservation or frugality, but carelessly killed more game than they needed, felled more trees than they could use, and so on. “The white…destroys all before him…” Sources like Schoolcraft’s Journal not only influenced how early nineteenth-century Americans back east regarded this region, but they further informed the writing of history during the twentieth century. Carl O. Sauer, Robert Flanders, David Thelen, Jeff Bremer, and others marked the early Ozarks as cut off and stuck in the past, an island of uncivilized, ignorant frontierism.^[7] 

Blevins of course points out that many observations by explorers and later historians were “not whole-cloth fabrications.”^[8] The Ozarks had hunters, material deprivation and poverty, violence and vigilantism, a dearth of modernity, and so on. But it had much else — it was too diverse to be characterized by those elements alone. For example, ironworks developed even before Schoolcraft’s journey through the region.^[9] Iron was mined and forged into wagon boxes, ovens, kettles, cannonballs, and all manner of other objects to be sold at market. Pig iron was shipped to St. Louis and other cities. Beginning in the 1820s, Maramec Iron Works was a major “iron plantation with modern technology in a place still lightly settled” that quickly “dominated the local economy…”^[10] After arriving in Missouri, wealthy entrepreneurs Thomas James and Samuel Massey brought workers and slaves from Ohio to dig up ore and run the Maramec furnaces. Manual laborers often lived in company housing and were paid in credit to company stores. This booming industry determined where many roads and rails were constructed, which helped ship raw material to surrounding states and territories. “With hundreds of employees, modern technology and equipment, and access to shiny new railroads,” Blevins writes, ironworks ensured “the region’s integration into a broader national and international marketplace… Travelers like [journalist] Albert D. Richardson were surprised to find such modern industrial activities in the far western reaches of the nation.”^[11] When serious study of a broad range of Ozarker experience is conducted, the region starts to look less backward and isolated.

Clearly, not all who settled in the Ozarks were hunters. As partially noted, despite his emphasis on the “hunter state,” Schoolcraft acknowledged that Ozarkers grew corn, possessed livestock like pigs and cows, and engaged in trade by river. Blevins writes: “The marketing of grains, hides, and livestock connected farmers and herders of the rural antebellum Ozarks to a wider world of regional and national commerce and trade.”^[12] The historian again documents how other settlers lived and how this tied them to the rest of the nation. They grew corn, wheat, cotton, tobacco, sweet potatoes, cabbage, peas, oats, and much else.^[13] These were at times brought to market locally: “Wiley Britton recalled that his father…sold corn and other surplus crops to Cherokees or to merchants in Neosho.”^[14] More significantly, however, “by 1819 the region already produced surplus beef and pork for the New Orleans market,” and soon became a leading open-range livestock producer nationally.^[15] Cattle drives left the Ozarks and marched all over the United States, even as far as New York.^[16] Beyond ranchers, farmers, ironworkers, miners, railmen, and hunters, there were artisans, merchants, shopkeepers, mechanics, millers, distillers, company lumberjacks, attorneys, and so on.^[17] Like the rest of the country, the Ozarks attracted and produced a wide range of laborers, especially as its towns and cities developed.

After the workday was through, many Ozarkers would return home to their log cabins, some with dirt floors and others wood. But, especially in the decades after Schoolcraft’s visit and before the Civil War, some more affluent residents had frame houses painted white with crushed limestone, or even brick houses.^[18] Women and girls would make quilts and clothing; those from more prosperous families purchased the latest fashions from cities like Philadelphia, and owned English glassware.^[19] “Don’t think for an instant that I am among semi-wild people,” German doctor George Engelmann wrote in the 1830s as he traveled through the Ozarks. “On the contrary, these people have a good deal of culture…”^[20] Contrary to claims concerning a lack of religion, Ozarkers were mostly Methodists and Baptists, plus some Presbyterians and others.^[21] Bethel Baptist Church was founded near Jackson, Missouri, in 1806, and by 1818 had half a dozen churches in the area it could claim as descendants.^[22] Methodist preachers like William Stevenson were at work in 1814.^[23] There were churches, camp meetings, and religious societies and organizations. Missionaries came to and emerged from the Ozarks. Religion was a major feature of life, as it was in other parts of the United States in this era.^[24] Education was slow to develop, with most children not attending school until after the 1850s, but an academy appeared in Potosi in 1816, and more were established in other towns.^[25] In areas without formal schools, children would at times be taught reading, writing, and arithmetic for a fee by a private individual, a “subscription” model.^[26] Ozarkers would often remember their hard times and difficulty receiving an education with, to quote Blevins, the same kind of “bootstraps, self-congratulatory memory that had your grandfather trudging five miles uphill in a perpetual blizzard” to get to school.^[27]

On that note, the writing itself in The Old Ozarks is generally engaging and dynamic. This elevates both interesting and more tedious content. While the line “Given the myriad uses of corn, it is not surprising that Ozark farms went through it like Henry VIII went through wives” may induce a wince, there are far less lively discussions of agriculture in historical scholarship.^[28] A few moments approaching rhetorical beauty occur as well: the “Ozark plateau is rendered, by our rather myopic and mortal outlook, a fixed and everlasting entity, a place as solid and unchanging as the age-old igneous rocks of the St. Francois Mountains, the ancient core of the region. But you and I are human, and history is preoccupied with our kind.”^[29] The author’s exposition is interlaced with quotations from letters, diaries, published books, and more by early Ozarkers and visitors, which keeps the history grounded and personified, while secondary sources from other scholars are usually cited without quotation, serving largely the same function. Beyond creativity and variety, the writing is clear and largely dispassionate, though Blevins is an Ozarker, and may have a vested interest in confronting images of backwardness, suggested in comments such as: “Whether our peculiarities are perceived or real, in the Ozarks we are no strangers to stereotype. We’re accustomed to being labeled by outsiders.”^[30] This does not appear to impact the validity of his case however, given the nature of the thesis.

The Old Ozarks is a heavily detailed text with the simplest of theses. Dispelling stereotypes is perhaps the most straightforward task a historian can undertake — even a few primary sources can quickly qualify or even blow up an improper, oversimplified representation of a people or place. (Blevins understands well, offering the somewhat sheepish “If…this book contains a central premise, it is that…”^[31]) The author accomplishes this detonation, revealing the complexity, diversity, and normality of the early Ozarks using an avalanche of documentation from archives across the region, leaving little doubt that its populace, while including such elements at certain times, should not be defined by isolation, backwardness, or exceptionalism.^[32] The “backwoods hunter-herder,” Blevins writes, “represented only a temporary stage in the development of society in the Ozark uplift” and existed alongside “more progressive settlers”; the backwoodsman simply “captured the attention of travelers more…”^[33] Explorers and later folklorists and novelists wrote for audiences that loved the exotic — “‘They’re really not that different from you and me,’” Blevins explains, would hardly sell copies.^[34] Blevins deserves credit for bringing so many sources together to address myths and capture local history, expanding significantly upon the work of other modern historians and qualifying or correcting that of twentieth-century academics. However, the comprehensive and meticulous nature of the text — recall that this is only the first of three books — makes it for scholars rather than a general audience. With its scope, this is a seminal work for the field.

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^[1] Brooks Blevins, A History of the Ozarks, Volume I: The Old Ozarks (Urbana: University of Illinois Press, 2020), 2-9.

^[2] Ibid., 2, 8.

^[3] Ibid., 2, 5, 7.

^[4] Ibid., 122.

^[5] Ibid., 9, 293.

^[6] Henry R. Schoolcraft, Journal of a Tour into the Interior of Missouri and Arkansaw: From Potosi, or Mine á Burton, in Missouri Territory, in a South-West Direction, toward the Rocky Mountains, Performed in the Years 1818 and 1819 (London: Richard Phillips and Company, 1821).

^[7] Blevins, Ozarks, 121-122.

^[8] Ibid., 9.

^[9] Ibid., 192.

^[10] Ibid., 193.

^[11] Ibid., 196. See 192-196.

^[12] Ibid., 153.

^[13] Ibid., 140.

^[14] Ibid., 151-153.

^[15] Ibid., 142-143.

^[16] Ibid., 147.

^[17] Ibid., 153, 175, 182.

^[18] Ibid., 134.

^[19] Ibid., 122, 137-138.

^[20] Ibid., 84.

^[21] Ibid., 200.

^[22] Ibid., 201.

^[23] Ibid., 204.

^[24] Ibid., 197-217.

^[25] Ibid., 230-231.

^[26] Ibid., 232.

^[27] Ibid., 230.

^[28] Ibid., 152.

^[29] Ibid., 5.

^[30] Ibid., 2.

^[31] Ibid., 8.

^[32] Ibid., ix-x.

^[33] Ibid., 82.

^[34] Ibid., 8.

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I noticed something interesting during the Trump era. As the nation completely lost its mind, I saw incidents here and there of Republican senators seeming to keep their heads a little better than House Republicans.

For example, after Trump’s lies about voter fraud led to the January 6 riot, 14% of Republican senators (seven individuals) voted to convict him, whereas in the House only 5% of Republicans voted to impeach (ten individuals). Or look at who still voted against Arizona and Pennsylvania’s 2020 election results two months after election day, after (Republican) states had recounted and certified their results and Trump’s own administration officials and the federal courts had rejected the myth of voter fraud. 66% of House Republicans (139 politicians) voted to object to the validity of these states’ elections, with no actual evidence for their position. Only 6% of GOP senators (eight officials) did the same. And sure, the Senate has its Josh Hawleys, Lindsey Grahams, and Ted Cruzes, but doesn’t it usually feel like the most insane people are in the House? Like Majorie Taylor Greene (QAnon, space lasers owned by Jews causing wildfires, 9/11 was an inside job) or George Santos (pathologically lying about his career, relatives experiencing the Holocaust or 9/11, and founding an animal charity)? Why does the Senate at times seem like a slightly more sober place? Perhaps it’s nothing, but such things reminded me a bit of what the Constitutional framers wrote about the Senate and House.

For the Founding Fathers, the Senate, which would not be elected by voters but by state legislatures (this was true until 1913), would be comprised of more serious, intelligent people. A nation must, James Madison wrote in 1787, “protect the people agst. the transient impressions into which they themselves might be led.” The foolishness of the citizenry had to be tempered. Because the House of Representatives would be elected by the people, it would also be infected: the voters, “as well as a numerous body of Representatives, were liable to err also, from fickleness and passion.” Thus, “a necessary fence agst. this danger would be to select a portion of enlightened citizens, whose limited number, and firmness might seasonably interpose agst. impetuous counsels.” This was the Senate, the upper chamber, following closely the House of Lords in Britain that operated beside the House of Commons, the lower chamber.

Madison positioned the Senate as a check on the “temporary errors” of the masses-representing House, whereas the masses-representing House would be a guard against the abuses of the Senate, small and unelected by the citizenry. (He then went on to stress that one had to keep power away from the people, whose sheer numbers would threaten the interests of the rich. So the president, senators, justices, and so on would not be elected by ordinary voters — and only men with property could vote for House reps. See How the Founding Fathers Protected Their Own Wealth and Power.)

“The main design of the convention, in forming the senate,” the New York publisher Francis Childs wrote in 1788, “was to prevent fluctuations and cabals: With this view, they made that body small, and to exist for a considerable period.” Indeed, “There are few positions more demonstrable than that there should be in every republic, some permanent body to correct the prejudices, check the intemperate passions, and regulate the fluctuations of a popular assembly.” Childs was railing against the idea of senators not serving for life.

Alexander Hamilton’s plan was for life-term senators. “Gentlemen differ in their opinions concerning the necessary checks, from the different estimates they form of the human passions. They suppose seven years a sufficient period to give the Senate an adequate firmness, from not duly considering the amazing violence and turbulence of the democratic spirit.” Senators would “hold their places for life,” to achieve “stability.”

The story of George Washington calling the Senate the cooling saucer for the hot coffee of House legislation is probably untrue, but captures the general mindset of the framers.

Of course, the idea of senators being significantly more “enlightened” and level-headed than House reps from 1789 to 1913 deserves skepticism, but it would take lengthy historical study to form a coherent position. The modern observations that opened this writing can’t really support the opinions of the Founders, for modern senators are elected by the voters, not state legislatures. The 17th Amendment gave us different rules for the game. What this means is I can only ponder whether the framers were accidentally right: perhaps they theorized that senators would be more serious people on average, but this only became so after 1913. It is true that they could simply have been right, with this phenomenon defining the Senate no matter how senators were elected, but this cannot be answered without careful analysis of the political realm from the early republic era to World War I. Not that my musings can at present be fully answered either, as they are merely based on a few random observations, not careful, systematic analysis of modern behavioral differences between senators and representatives. All this is highly speculative.

However, it seems obvious it would be a little easier for crazy people to enter the House than the Senate. You simply don’t have to convince as many voters to support you. In 2022, there were 98 House districts (out of 435) where turnout was less than 200,000 people. The lowest districts had 90,000 to 140,000 total voters. If you’re a dunce who can get 50,000, 75,000, or 100,000 people to vote for you, you can make it to Congress. Districts are small, less diverse, sometimes gerrymandered. More people within them think and vote the same way — the average margin of victory among U.S. House races is 29%, versus 18-19% for Senate races — meaning it’s a bit easier to beat your rival candidate from the other party, if you live in the right district. If you’re running in a safe district — a blue candidate in an extremely blue area or a red one in an extremely red area — all you must truly worry about is beating your primary challengers from your own party, meaning you can secure a seat in Congress with even fewer votes.

Candidates for Senate, while naturally still courting voters on their side of the political spectrum as well as moderates, seek supporters across entire states, in wilderness and small towns and suburbs and big cities. Potential voters are more diverse geographically, racially, economically, ideologically (the poor rightwing farmer is not precisely the same as the rich rightwing business tycoon). To make it to the Senate, you’ll need more votes. 100,000 supporters might be enough in sparsely populated states like Alaska, Vermont, Wyoming, or the Dakotas. But beyond that you’ll need hundreds of thousands or millions of voters to beat the candidate from the other party. This is true regardless of the fact that you could win a primary with a relatively low number of supporters and would have a much better chance of winning a safe state.

Entering the House also requires far less money. Which may be a benefit to crazy people who lose funders when they do and say crazy things. (Admittedly, you may see the opposite effect these days.) It also opens the door to more self-funded candidates. Overall, it’s five to seven times more expensive to win a Senate race than a House race.

All this is to say it may be more difficult for the worst clowns to enter the Senate. There are more opportunities with the House; you need fewer voters and less cash. This may sound ludicrous in a world where Donald Trump could dominate the Republican primaries, indeed it is frightening when extremists like Trump or Greene beat normal conservatives, but more voters may nevertheless function — imperfectly — as a bulwark against irrationality, a check on dangerous candidates. (Recall that Trump lost one popular vote by 3 million and the next by 7 million, once the decision was placed before even more voters.) Someone like Marjorie Taylor Greene can garner 170,000 votes, and George Santos 145,000, but it may be more difficult for them to be taken seriously by their entire states, by the millions necessary to beat rival candidates. It’s not impossible, as Trump has shown, and enthusiasm among the rightwing masses for lunacy (authoritarianism, conspiracy theories, demagoguery) is only encouraging lunatics to run and helping them win, but “more voters, fewer clowns” may nevertheless be a general principle of democracy that held true before the Trump era and may yet hold true today. (Enough popular extremism, of course, will dismantle this principle entirely.)

If the Senate is in fact a more serious place, it’s possibly a product of the system established in 1913. You have those factors making it difficult for loons to get there. Consider the setup before this. A propertied resident of, say, Virginia would vote for state legislators to go to Richmond to represent his local district. The legislators in Richmond would then elect two senators to serve in Congress. (Meanwhile, House reps were elected as they are today; that Virginia resident would vote for one directly.) Now, perhaps state legislators somewhat paralleled the sobering function of voters today, in that they came from all over a state. Between this and being elected officials themselves, perhaps legislators really did ensure more serious people were generally sent to the Senate compared to the House. The Founders could have understood this; perhaps it played into their visions of enlightened politicians. (Perhaps the vision itself, the mere idea of a more serious Senate, partly made and makes it so, changing behavior, a self-fulfilling prophecy.) But maybe there was no difference whatsoever — if state legislators were elected by the stupid herd, why would they be serious, enlightened enough people to send serious, enlightened people to the Senate? And is convincing a few score legislators — fewer people — of your suitability actually easier than convincing thousands of voters? Creating just as big a door for nincompoops? We saw earlier how fewer voters might be beneficial to such candidates. An answer is elusive, but if the Founders were wrong in the beginning, perhaps they were made right with the reforms of the early twentieth century.

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