Liberty and Coercion

The Paradox of American Government from the Founding to the Present

Gary Gerstle

• Publisher: Princeton University Press
• Year: 2017
• ISBN:
  9781400888436
• Topic: History
• Subtopic: North American History
• Index: History

How the conflict between federal and state power has shaped American history American governance is burdened by a paradox. On the one hand, Americans don't want "big government" meddling in their lives; on the other hand, they have repeatedly enlisted governmental help to impose their views regarding marriage, abortion, religion, and schooling on their neighbors. These contradictory stances on the role of public power have paralyzed policymaking and generated rancorous disputes about government's legitimate scope. How did we reach this political impasse? Historian Gary Gerstle, looking at two hundred years of U.S. history, argues that the roots of the current crisis lie in two contrasting theories of power that the Framers inscribed in the Constitution.One theory shaped the federal government, setting limits on its power in order to protect personal liberty. Another theory molded the states, authorizing them to go to extraordinary lengths, even to the point of violating individual rights, to advance the "good and welfare of the commonwealth." The Framers believed these theories could coexist comfortably, but conflict between the two has largely defined American history. Gerstle shows how national political leaders improvised brilliantly to stretch the power of the federal government beyond where it was meant to go—but at the cost of giving private interests and state governments too much sway over public policy. The states could be innovative, too. More impressive was their staying power. Only in the 1960s did the federal government, impelled by the Cold War and civil rights movement, definitively assert its primacy. But as the power of the central state expanded, its constitutional authority did not keep pace. Conservatives rebelled, making the battle over government's proper dominion the defining issue of our time.From the Revolution to the Tea Party, and the Bill of Rights to the national security state, Liberty and Coercion is a revelatory account of the making and unmaking of government in America.

PART I

Foundations, 1780s–1860s

1

A LIBERAL CENTRAL STATE EMERGES

Ralph Waldo Emerson may have been wrong in thinking that the first shot of the Revolutionary War was fired in Concord, Massachusetts, in April 1775. But he was not wrong in believing, as he wrote in 1836, that the battle of Lexington and Concord was metaphorically “a shot heard round the world.”¹ This battle launched a major war of independence against one of the world’s premier empires and inaugurated an age of democratic revolutions that would sweep through North America, South America, the Caribbean, and Europe over the next seventy-five years. In the United States—as in many sites of unfolding revolution—insurgents sought not only to topple the domestic and imperial lords who ruled their polities but to break with patterns of elite rule altogether. Those who embraced the Declaration of Independence’s radical assertion that “all men are created equal” and “are endowed by their Creator with certain inalienable rights” believed that equality required that “the people” have a say in political decisions affecting their lives. A new era of popular sovereignty had begun. The American War of Independence ushered in the world’s first democratic revolution.²

The word “democracy” was used sparingly in the eighteenth century to describe these events, for it connoted for many the rule of the mob—thought to be composed of groups which, for reasons of poverty, sex, race, or uncontrollable passion, were unfit for self-government.³ Instead, the American revolutionaries thought of themselves as creating a republic, by which they meant a polity that derived its authority from the people and a commitment to the public good, but in which full political rights were vested only in those who were deemed economically independent and thus politically virtuous. The republics of the ancient Greek city-states and Rome had shown that such a system of rule could work, and many American revolutionaries imbued their thought with a healthy dose of this classical republicanism. They also believed that the social basis of the American citizenry would be much broader than what had existed in earlier republics, for the abundance of land in the United States and a relatively sparse population had put landownership (and hence economic independence and virtue) within reach of most white heads of household. Imagining such a broad-based citizenry made popular sovereignty seem a realizable goal, and generated ideas and movements that deepened the democratic character of the American Revolution.⁴

The American revolutionaries pursued a second goal that overlapped with the pursuit of popular sovereignty, but was also distinct from it: to make sure that no central political authority in the United States would ever be able to concentrate power to the degree that had made possible the misrule of George III. On one level that meant declaring that America would have no king. On another level, it meant constructing a central government whose power would be limited and fragmented, and in which no executive, judge, military leader, senator, or cabal would ever be able to assemble monarchical power. Ancient republicans had not concerned themselves with designing governments in this way. Instead they were preoccupied with creating economic and social conditions in which virtue among citizens and rulers could flourish. Thus, American revolutionaries turned to other forms of political thought for guidance in designing a central state with limited powers. This shift would point the American Revolution in a liberal direction.⁵

One important source of thought was that developed by English Whigs—and by John Locke in particular—in the seventeenth century. Locke’s contemplation of his century’s wars and revolutions against the absolutism of the British Crown led him to reject claims that English kings, and the monarchical states that embodied their will, were entitled to complete power over their subjects. Locke argued that societies had antedated these states, endowing the individuals who constituted them with rights to life, liberty, and property that no state (or monarch) could legitimately take away. These individuals, he posited, could agree to sacrifice some of their rights to a government capable of ensuring their safety and implementing a system of just laws. But this cession of rights was contractual and therefore reversible if the terms of the contract were violated.⁶

Locke regarded individualism and self-interest as natural human attributes. His governmental plan would both give scope to these attributes and, through representative government, manage the conflicts among the heterogeneous interests that would inevitably arise. Locke’s discourse on contractualism, rights, and limited government circulated through Whiggish sectors of English society and the colonies in the eighteenth century, supporting both challenges to the excessive power of the king and his court and defenses of the rights of Englishmen in the name of liberty.⁷

By the 1770s and 1780s, another group of British theorists was developing ideas about economic liberty that paralleled Locke’s thinking about political liberty. The Scottish political economist Adam Smith, a key figure in this group, wanted to enhance what he regarded as the propensity among humans “to truck, barter, and exchange one thing for another.” Smith believed that “every man” should be “left perfectly free to pursue his own interest his own way, and to bring both his industry and capital into competition with those of any other man, or order of men.” The primary obstacles to such economic freedom, or what Smith called “natural liberty,” were overbearing monarchical states whose rigid mercantilist policies stymied commerce, technological innovation, and economic growth. Smith argued that the sovereign should be “completely discharged from … the duty of superintending the industry of private people, and of directing it towards the employments most suitable to the interests of the society.” No “human wisdom or knowledge could ever be sufficient,” Smith asserted, to support such an endeavor. Only by restraining the economic power of the monarch would the remarkable energies for commerce, industry, and growth that lay dormant in human intercourse be fully released. Smith was more concerned with freeing up the economy—fostering what he called a “simple system of natural liberty”—than with developing a theory of political rights. Nevertheless, his emphasis on limiting the power of the sovereign in economics dovetailed with Locke’s focus on limiting the power of the monarch in politics.⁸

In the writings of Locke, Smith, and others, we can discern an effort to limit government and maximize economic and political freedom. This effort would come to define liberalism, and many of its eighteenth- and nineteenth-century proponents imbued this program with emancipatory hopes. It would, they believed, eliminate the bloated and suffocating monarchical and aristocratic states of eighteenth-century Europe while unleashing the energy and initiative of the people.⁹

These liberal ways of thinking about politics were not fully formed by the 1770s and 1780s. There was no liberal manifesto resembling what Karl Marx would produce for socialism in the nineteenth century, from which advocates could get their marching orders about how to build a liberal society and state. Yet everywhere in the emerging United States we can glimpse what political scientists Andreas Kalyvas and Ira Katznelson have called “liberal beginnings”: in the antipathy to a powerful central state, in a deep commitment to natural and inalienable rights, in the articulation of a people’s right to consent to the form of government under which they lived, and in a growing conviction regarding the centrality of representative assemblies to good government. In the process of constructing their own government, the American revolutionaries would demonstrate both an ability to advance beyond these beginnings and an inability to disentangle themselves from rival political philosophies, including republicanism, that were present in their revolutionary era and often in their own minds.¹⁰

Efforts to construct a central state out of this swirl of sentiments and ideologies unfolded in three political acts: the Articles of Confederation of 1781, the Constitution of 1789, and the Bill of Rights of 1791. The Articles of Confederation was not as uniformly weak a system of rule as it is often thought to have been. As we will see, the Northwest Ordinances passed by confederation congresses in 1785 and 1787 were consequential bills that profoundly shaped land policy and related matters for more than a century. Still, confederation congresses came up short in too many areas, and the Constitutional Convention gathered in Philadelphia in 1787 to transform this compromised governing structure into something sturdier.¹¹ Out of it came the Constitution, ratified and installed in 1789. Its laws and blueprint still govern the United States, making it the oldest written constitution operative in the world today.

The Constitution gave the central government authority to regulate interstate and foreign commerce; lay taxes and tariffs; coin currency and borrow money; regulate immigration and naturalization; sponsor internal improvements, supervise the mails, and acquire, control, and distribute land; raise armies and navies for national defense and internal security; and establish uniform standards for weights and measures. These were substantial powers that cumulatively yielded a central government far stronger than what the Articles of Confederation had allowed.¹²

Still, this central authority had to operate within limits. The Constitution established a federal system in which a great deal of authority was left to the states. Meanwhile, the power of the central government was internally fragmented among three different branches of government to ensure that no single person, clique, or agency in the central state would ever be able to accumulate the sort of control that the despised George III and his ministers had allegedly gathered into the British royal government.

Even these constraints on the federal government’s power failed to assuage the alarm of many Americans when they learned that the Constitutional Convention of 1787 had gone beyond its mandate—amending the Articles of Confederation—to produce an entirely new governing design. That the framers of the Constitution had done so in secret further raised suspicions that they were engaged in a conspiracy to reproduce the tyranny of George III.

The Constitution writers understood that these suspicions needed to be allayed, which informed their decision to ask each state to convene a ratifying convention, drawn from the ranks of each state’s residents, to debate the merits of the new Constitution, and then vote on whether or not to adopt it. Affirmative votes in nine of the thirteen states would be required to make the Constitution the law of the land. This ratification process unleashed a remarkable debate on the place of a central government in American life.¹³ The opponents of the Constitution, known as antifederalists (in that they opposed the strengthening of the federal government), failed to assemble enough votes to scuttle it, but they did wring a promise from the supporters of the Constitution that once ratification had been achieved, additional limitations would be imposed on America’s new central state by elaborating rights for individuals that this new state would not be allowed to touch. These rights, assembled in the first ten amendments to the Constitution, came to be known as the Bill of Rights. They asserted the right of every person to speak freely; the right to have a free press; the right to assemble peacefully, with no restrictions on what could be said at such meetings; the right to worship in a religion of one’s choice, or not to worship at all; and the right to petition the government for a redress of grievances without fear of reprisal. These amendments also set forth procedural safeguards to ensure that anyone charged with breaking a federal law would be treated fairly and humanely by the nation’s criminal justice system.¹⁴

The Bill of Rights was liberal in the eighteenth-century sense, meaning that it was intended to identify a core area of human freedom, assert its inviolability, and protect it from the exercise of arbitrary government power. The ratification of the Bill of Rights in 1791 marked a major advance in the construction of liberal political theory and practice, not just in the United States, but in the world. Across the nineteenth and twentieth centuries, this collection of amendments would be a document studied and emulated by liberal-minded peoples everywhere.¹⁵

In eighteenth-century America, however, the import of the Bill of Rights was limited by the decision to exempt state governments from its strictures. A state could write a bill of rights into its own constitution, and many had. Indeed, the 1776 Virginia Declaration of Rights had influenced the shape of the federal Bill of Rights. But states could also decline to adopt a bill of rights, or design one with far weaker protections for individuals than that afforded by the national Bill of Rights. As such, while the First Amendment barred Congress from limiting freedom of religion, states that wanted to limit this freedom, such as Massachusetts and South Carolina, were able to do so. They were not bound by the terms of the First Amendment to the federal Constitution.¹⁶

That states themselves might become centers of government tyranny and might need to have constraints imposed on them troubled few who were active in American politics in the early 1790s. Even the most ardent antifederalists were largely oblivious to this possibility. They focused their antigovernment animus almost entirely on the federal government, seeing it as an institution external to the people and thus in danger of reproducing the tyranny of George III. State governments, in their eyes, operated on a different level. They were close to the people; in fact, in states like Pennsylvania, governments seemed to be indistinguishable from the people. Why would “the people” need to have protections for the rights of individuals in a polity in which “the people” were themselves the ones exercising power?

James Madison was one of the few to offer an answer to that question, and it was a good one. In the course of designing the Constitution, he had concluded that dissent and conflict among interest groups were normal, even desirable features of politics in the American republic. That reality meant that the Constitution had to include measures designed to protect the rights of minorities against the will of the majority. These minorities, Madison believed, would be as vulnerable to the whims of majorities in statehouses as they would be to those of majorities in Congress.¹⁷ Madison therefore argued that any limitation on the power that Congress could exercise over individuals should be “secured against the state governments” as well. He himself proposed an amendment to incorporate states under the Bill of Rights—a measure that he came to regard as “the most valuable amendment on the whole list” that had come before Congress for consideration. His colleagues in the first Congress did not share this view. They did not see the problem that this amendment was meant to address. Madison’s world was not yet their world. In a move that occasioned little comment or debate, they scuttled his “incorporation” amendment.¹⁸

The inability of many of Madison’s colleagues to comprehend the fuss Madison was making about imposing a bill of rights on the states points to the piecemeal and incomplete way that the ideology of liberalism emerged in late eighteenth-century America. By the 1790s, it was coming to define the theory of power underlying the structure of the central state, but not the one that was animating the states.

This chapter focuses on the central government. It does not retell what is a well-known and well-chronicled story of the early republic: the contest between those, such as Alexander Hamilton, who wanted to increase the size and power of the central state, and those, such as Thomas Jefferson, who wanted to keep that state bounded in size and the orbit of its powers. The Jeffersonians and their heir, Andrew Jackson, won that battle, in part because their ideas for the central state corresponded more closely with the principles of limited government that were central to the Constitution, and in part because they were seen by a democratizing electorate to have far more fully embraced the dream of popular sovereignty than their opponents.¹⁹

What does bear examination is how well America’s central state met its governing challenges given the formal limitations on its power and the long period of time during which it was ruled by a Jeffersonian pa...