Friday, 22 January 2016

Observations on the New Constitution, and on the Federal and State Conventions, Part VI: Anti-Federalism, contd.

Another theme common to both Warren’s Observations and many of the Anti-Federalist Papers – evidence of their similarity of intention and rhetorical approach – concerned the extralegal nature of the Philadelphia Convention and the secrecy with which it was conducted. For all the criticisms that Mercy Otis Warren and her male counterparts saw fit to level against the proposed constitution itself, its structure, and the vagaries of its language, they seemed equally troubled by the manner in which it came into being. Warren’s comments on this head range from somewhat veiled references to explicit denunciations, and in all articulate a deep sense of suspicion as to how and why a new federal charter was drafted to begin with.

The first such comment can be found in the first section of Observations amidst a brief explanation of the theory and nature of political representation. Having deputed individuals to conduct the business of government, Warren wrote, it remained the people’s prerogative to reject whatever decisions their representatives made, replace them on the occasion of subsequent elections, or call for their discipline or removal via legal means. Outside of this codified framework, therefore, it was, “An unwarrantable stretch of authority or influence, if any methods are taken to preclude this peaceful and reasonable mode of enquiry and decision.” The Philadelphia Convention, which summoned delegates from all thirteen extant states (as of 1787), as assigned by their respective state legislatures, was thus not strictly legal in the sense that there was no framework within either the Articles of Confederation or any of the state constitutions that described how and why such a meeting might be called.

This did not necessarily mean that any meeting convened by the states outside the authority or sanction of the Continental Congress (as it was still known in the 1780s) should have been considered treasonous. What concerned Warren and her compatriots was not the existence of alternate means by which the states could confer on a variety of topics, but rather the way in which the delegates to the Philadelphia Convention, many of whom were also state legislators or delegates to Congress, appeared to have unilaterally and arbitrarily assumed the authority to draft a new federal charter and submit it to the states for ratification. If the convention itself lacked legal sanction, particularly from the people’s representatives in Congress, from where did it derive its claim to legitimacy? And if the meeting itself was not legitimate, what of the constitution it proposed to replace the Articles of Confederation? Was not the fact that said charter was submitted to the states for ratification evidence that its authors were keen to win after the fact what they lacked when they first began their efforts? There were not simple answers to any of these questions, dealing as they did with the vagaries of popular sovereignty and political legitimacy in a country whose independence was less than a decade old. All the same, Mercy Otis Warren and her compatriots were not afraid to ask them.

Warren committed to this same line of inquiry with somewhat greater rhetorical force in section eighteen of Observations. As aforementioned, she and her Anti-Federalist colleagues found fault with the manner in which the Philadelphia Convention was summoned, and its apparent lack of formal legitimacy. The original mandate that the organizers of the convention claimed for their efforts was the revision and potential expansion of the existing Articles of Confederation in order to better meet the demands of the post-war economic and political status quo. Though said Articles had performed their intended task of binding thirteen former colonies together in time of war reasonably well, by the late 1780s there existed widespread consensus that they were largely inadequate to the charge of keeping the various states united in time of peace. The notion of sending delegates to review the document in question and suggest potential modifications was thus not overly controversial, and though Rhode Island declined to answer the resulting summons, all twelve of its sister-states easily complied. When the 55 delegates who ultimately attended broke from their closely-guarded proceedings four months after they first met in May, 1787, it was accordingly with some degree of surprise that Congress and the various states were presented with an entirely new governing framework for the United States of America.

Warren seemed to object most strongly to the aforementioned unilateral nature of the delegates’ decision to expand the focus of their meeting. If “confusion and violence” were the results of adopting the proposed constitution (an eventuality she seemed inclined to consider), it would have been due to,

The proceedings of a set of gentlemen, who disregarding the purposes of their appointment, have assumed powers unauthorized by any commission, have unnecessarily rejected the confederation of the United States, and annihilated the sovereignty and independence of the individual governments.

Putting aside the so-called “annihilation” of anyone’s “sovereignty and independence,” a piece of hyperbole fueled more by fear than reason, the core of Warren’s complaint was hardly inaccurate. The delegates had indeed disregarded the purpose of the appointment by almost immediately casting aside any thought of reforming the Articles of Confederation and instead setting about drafting a new federal charter. In so doing they did assume powers unauthorized by the commissions they had been granted, and, while the necessity can be debated, they did essentially reject the existing confederation of American states. That the various gambles the Framers (as we now know the authors of the United States Constitution) took ultimately paid off, and that the proposed constitution was adopted and is still in force today (with the addition of 27 amendments), perhaps makes it difficult to conceive of their actions in Philadelphia as unsanctioned or illegitimate. Observers and commentators in the 1780s, lacking the benefit of hindsight, had no such trouble. From the perspective of people like Mercy Otis Warren, the constitution that resulted from the Philadelphia Convention was, among other things, the product of an arbitrary and unlawful assumption of authority by men who had been given a very specific task to complete, and who chose instead to pursue an object of their own design.

            Warren’s concern about the manner in which the Framers seemingly abandoned their stated responsibilities and reached the decision to craft a new federal charter was seemingly augmented by the secrecy with which said work was accomplished. Twice in section eighteen she expressed displeasure at how the business of the Philadelphia Convention had been conducted, with a particular emphasis on the lack of transparency the Framers appeared to go out of their way to enforce. By, “shutting up the doors of the federal convention,” she wrote in the second paragraph, “And resolving that no member should correspond with gentlemen in the different states on the subject under discussion,” it appeared obvious to her that the Framers were bent on a course of wilful obscurity that was, “Contradictory to the first principles which ought to govern mankind.” The only aim of such a policy, she maintained, was “The annihilation of the independence and sovereignty of the thirteen distinct states.” This was a heady claim, and though the language Warren chose to express her disapproval was perhaps somewhat excessive, the basis of her argument was quite sound. The Framers, once they decided to pursue the formulation of an entirely new constitution, insisted on a policy of confidentially for all members in attendance. This was, by American standards, somewhat unusual.

The state constitutions that had been written in the 1770s and 1780s following the declaration of American independence had not been formulated in secret. Most had been drafted and approved by sitting members of the existing colonial legislatures. Massachusetts was the last of the original thirteen states to approve a post-independence constitution (in 1780), and also the only one to make use of a specially-called convention. In all cases, however, at least prior to 1787, the work of preparing a frame of government in the United States of America had been accomplished in full view of the general public. The men who were called to participate in the drafting processes knew upon accepting the charge exactly what they were agreeing to, and they freely communicated with sources outside their limited number for inspiration or aid. The Massachusetts Constitution did not suddenly appear in the summer of 1780 without the people of that state having any prior knowledge of it. It was the product of a public process that began with the popular election of delegates and ended with the submission of the finished document for ratification by all male voters 21 years or older. The process by which the new federal charter was formulated in 1787 so clearly rejected the established American precedent of transparency that it was little wonder certain observers recoiled at the apparent resort to secrecy.           

For her part, Warren surmised that the effort taken to suppress any knowledge of the work being done in Philadelphia was evidence enough of sinister intent. “Did not the prohibition strictly enjoined by the general Convention,” she wrote, “That no member should make any communication to his Constituents, or to gentlemen of consideration and abilities in the other States, bear evident marks of fraudulent designs?” If there was nothing to fear in the proposed constitution, if indeed the American people stood to benefit by its adoption, why attempt to guard its preparation from public scrutiny? In truth, it may simply have been that the Framers attended to their deliberations with confidentiality out of a desire to preserve a degree of objectivity during the drafting and ratification processes. If the proposed constitution was to stand the test of time, as no doubt many of its authors hoped it would, it would need to be based on sound, general, rational principles rather than the needs or desires of specific groups or interests. By taking pains to at least partially sequester themselves, the delegates at Philadelphia perhaps hoped to avoid the possibility of their deliberations becoming a magnet of controversy, fervent lobbying by specific regional or economic concerns, or perhaps even popular opposition. By the same token, they perhaps also hoped that by ensuring there was no public knowledge of their proceedings to draw upon, those tasked with evaluating and ratifying the finished document could not be swayed by the substance of the debates that had taken place in Philadelphia – who had said what, which states enjoyed the most sway – and would instead be forced to rely on their own judgement.

These seem the simplest explanations for the resort to secrecy, and are therefore more likely to be true than Warren and her cohort’s insistence on the presence of a foul conspiracy. That being said, the sense of concern she and the other Anti-Federalists expressed at the lack of transparency that attended the drafting of the proposed constitution was hardly invalid or inexplicable. As mentioned in months prior, the Founders had approached the conflict between the Thirteen Colonies and the British government in the 1760s and 1770s from an Enlightenment-informed perspective which tended to perceive all events as human-centred. Conspiracies, rather than random chance or acts of God, were more often identified as the likely cause of disaster or conflict, and vigilance was held as one of the paramount virtues of a healthy society. This sense of vulnerability and watchfulness served as a strongly cohesive force throughout the early history of the United States, helping to bind conflicting parties together in defence of shared priorities, but it could, and did, manifest itself from time to time as narrow-minded paranoia.

The same qualities that many Americans in the 1780s had come to value in their independence – the personal liberty they enjoyed and the transparency of their governments – were also, rightly or wrongly, perceived by many contemporary statesmen and political philosophers as potential weaknesses. A people who were truly free, and who exercised real control over their government, were also highly vulnerable to the forces of populism and demagoguery; as the history of Ancient Rome had shown, it took only one charismatic “man of the people” to turn a free republic into a despotic empire. When, therefore, people like Mercy Otis Warren perceived, in the manner by which the proposed constitution was created a degree of subtle, ill-intentioned manipulation, it was not because they were given to flights of fancy. Warren, and others of like mind among the Anti-Federalists, had been taught the fragility of republics, and the inestimable value of constant, unflagging vigilance. If, from time to time, they appeared to lash out at shadows, doubtless they all would have agreed it was a worthy price to pay for the protection of the social and political values they held most dear.

Another quick perusal of the various Anti-Federalist Papers reveals once again how common certain themes were across the many editorials and commentaries therein. As Mercy Otis Warren remarked frequently and effectively upon the suspicious and secretive nature of the Philadelphia Convention in her Observations, so too did many of her male counterparts in their own publications critical of the proposed constitution. Melancton Smith, writing under the penname “A Plebian” in Anti-Federalist No. 85, seemed the most measured among his contemporaries. Like Warren, he was concerned by the secretive nature of the Constitutional Convention, writing that, “While it was agitated, the debates […] were kept an impenetrable secret, and no opportunity was given for well informed men to offer their sentiments upon the subject.” This seems a fairly plain accounting of what transpired, free of accusation or ad hominem attack. Robert Yates, as Brutus in Anti-Federalist No. 82, offered a similarly considered opinion of the forces he perceived to have been behind the drafting of the new federal charter, though the image he projected was slightly more ominous. “If to those who will be interested in the change [in government],” he wrote,

Be added those who will be under their influence, and such who will submit to almost any change of government which they can be persuaded to believe will ease them of taxes, it is easy to see the party who will favor the abolition of the state governments would be far from being inconsiderable.

Without using the words “conspiracy,” “cabal,” or “plot,” Yates managed to convey upon the authors of the proposed constitution a deliberate and manipulative quality. By attempting to account for the thought-process by which he believed the Framers determined whose support among the general American population they could be sure of, Anti-Federalist No. 82 very subtly portrayed the supporters of the new government as highly calculating, and therefore untrustworthy.  

Other Anti-Federalist commentators were evidently less concerned with maintaining even a veneer of objectivity than either Smith or Yates. The aforementioned Anti-Federalist No. 21, from the pen of Samuel Bryan, described the Framers as, “Interested and designing,” and accused them of taking advantage of, “The present crisis […] under the specious pretence of having discovered a panacea for all the ills of the people [.]” Anti-Federalist No. 26, ascribed to an anonymous Farmer and a Planter, was even less delicate. Therein the authors of the proposed constitution were named, “Contrivers,” who had, “So completely entrapped you, and laid their plans so sure and secretly, that they have only left you to do one of two things-that is either to receive or refuse it.” A Federal Farmer (most likely Virginian and future Senator Richard Henry Lee) seemed of like mind in Anti-Federalist No. 37. He described the route by which the proposed constitution was devised and laid before the people as a process, “When by the evils, on the one hand, and by the secret instigations of artful men, on the other, the minds of men were become sufficiently uneasy, a bold step was taken, which is usually followed by a revolution, or a civil war.” More than mere “contrivers” who were “interested and designing,” No. 37 characterised the Framers as “artful men” who were guilty of “secret instigations” and “evils” in equal measure.

Another anonymous Anti-Federalist commentary, No. 74, offered a similarly severe appraisal. The self-described Philadelphiensis described the attempt to promote a new federal charter as, “A conspiracy against the freedom of America, both deep and dangerous [.]” Indeed, the author continued, the Framers represented, “An infernal junto of demagogues,” by whose machinations, “Our thirteen free commonwealths are to be consolidated into one despotic monarchy.” The language Mercy Otis Warren deployed might not have been quite as inflammatory as that of Philadelphiensis, but the core sentiment was very much in line with the concerns she expressed in the text of Observations. She may not have accused the Framers of attempting to raise a “despotic monarchy” in place of a confederation of American states, but she did evidently believe that they had, “Annihilated the sovereignty and independence of the individual governments,” or, put another way, promoted, “The annihilation of the independence and sovereignty of the thirteen distinct states.” Clearly the Anti-Federalists were concerned that the federal government embodied by the proposed constitution, being both powerful and coercive, would bring about the erosion of the state governments to the point of their dissolution. Philadelphiensis decried the idea in Anti-Federalist No. 74, Robert Yates identified the possibility in Anti-Federalist No. 82, and Mercy Otis Warren denounced it anew in her Observations. Each attached to it their own specific emphasis, expressed their sense of concern within the context of a larger critique, but all were nevertheless speaking from within a common understanding of the forces that stood to strengthen the union of American states and those that threatened to tear it apart.

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