Friday, September 30, 2016

Considerations on the Nature and Extent of the Legislative Authority of the British Parliament, Part II: Inheritance

    In spite of how the American Revolution ended – if, indeed, it has ended – with the creation and consolidation of a republican government the likes of which the world had never before seen, the breakdown of British rule in North America actually began as a conservative response to the violation of long-established practice. Early written attempts to justify resistance to British tax policy, circa 1765-1775, made this quite clear. The citizens of British America, as documents put forward by colonial legislatures or inter-colonial assemblies attempted to explain, were nothing if not eager to maintain a strong, stable, and mutually beneficial relationship between themselves and the British Crown. The various colonies had been established under the auspices of the British monarchy through the use of royal charters, and the links between the far-flung provinces of Massachusetts, Virginia, or Pennsylvania and Britain proper were, by the 1760s and 1770s, long-established and well-regarded. Accordingly, conflict arose between the colonies and Parliament after 1765, not because the former wished to alter the terms under which the Anglo-American relationship functioned, but rather as a result of the British legislature’s attempt to claim a power that British law and centuries of precedent utterly failed to account for or justify.

James Wilson’s Considerations on the Nature and Extent of the Legislative Authority of the British Parliament, written in 1768 and published in 1774, was very much one of these early, conservative documents. And though it is perhaps not as well-remembered as Jefferson’s Declaration of Independence, or even Dickinson’s Letters from a Farmer in Pennsylvania, the way it attempted to drive home it’s author’s central point – that British efforts to apply direct taxes to the American colonies violated British law and precedent – is striking in its attention to detail and its rigorous application thereof. As many of his colleagues at the 1787 Philadelphia Convention later commented, Wilson was possessed of a uniquely compendious knowledge of legal precedents, and his ability to bring any number of them into focus while driving home a point of debate was truly remarkable. Considerations, in many ways, is this talent made manifest. Rather than rely on arguments that stemmed from the at-times abstract rights philosophy of the European Enlightenment, Wilson relied on British examples and British authorities to make his case for him. While not always concise, this method provided readers with an understanding of British law and jurisprudence that stretched back centuries without necessarily losing sight of the central argument – again, that Parliament had no right to extend its taxing power beyond the confines of Britain itself. Aside from being an impressive feat on its own, this particular style of debate argues strongly in favor of the conservatism and the Anglophilia of the early years of the Revolution.

Within the context of this essay series, the term “conservative” ought to be understood as synonymous with words like “traditional” or “established.” Describing the early phase of the American Revolution as conservative should thus by no means denote an attachment on the part of the Founders to fundamentalist religion or fiscal responsibility. James Wilson’s Considerations was a conservative pamphlet because it argued in favor of reasserting the accustomed relationship between Britain and the America colonies that Parliamentary politicking had disrupted, and did so in part by relying on the strength of precedent and tradition. In essence, it put forward the argument that the British system of representative government was something that had evolved over the course of many centuries, that its various provisions and safeguards were the result of a trial-and-error process whereby useful elements were reinforced and contradictions were addressed, and that the result, by the late 18th century, was an administrative framework that was as near to perfect as was humanly attainable. Though this may sound like something of a digression from the topic at hand – America, taxes, and the rightness thereof – Wilson’s central conceit was that he and his countrymen regarded the British system of government so highly that they were unwilling to allow it to be wantonly violated or abused. Permitting Parliament to tax the colonists without providing for their representation, he argued, would have disregarded centuries of precedent and called into question the value of British rights and the guarantees they were meant to embody. America would have no part of this, it seemed – or James Wilson would not, at any rate.

    The means by which Considerations put this case to the colonial population speaks volumes about how they understood their ongoing dispute with Parliament. This isn’t to say, of course, that they all nurtured the deep-seated affection for the Mother Country that evidently compelled James Wilson. Across the millions of people who resided in Britain’s North American possessions, opinion varied greatly as to the value of the Anglo-American relationship, the form it ought to take, the quality of allegiance owed by colonial Americans to British authority, and the potential future of any continued connection between the two. That being said, the fact that Wilson felt it possible to publish Considerations in 1774 without fear of being lynched – a fate suffered by more than one customs officer during the height of the anti-Stamp Act fervor – would seem to indicate that his views were at the very least acceptable, if not accepted. It may therefore be reasonable to conclude that when Wilson wrote in the third paragraph therein, “We insist only upon being treated as freemen, and as the descendants of those British ancestors, whose memory we will not dishonour by our degeneracy [,]” he was expressing a sentiment that was not uncommon among his fellow colonists.

Understanding what Wilson meant by the phrase “whose memory we will not dishonour by our degeneracy” is in some ways key to grasping the broader point Considerations was intended to make. Though the various colonies had, since their foundings in the 17th and 18th centuries, acquired political and cultural traditions that were entirely unique or novel, all of them were built upon a base of British law and British culture. The political turmoil of the English Civil War (1642-1651), the constitutional turning point represented by the Glorious Revolution (1688), and the passage of the Bill of Rights (1689) all formed a part of the socio-political mythology of what it meant to be English, and subsequently British, in the 18th century. The residents of British America – of British stock or British-born themselves – were inheritors of this legacy. And though they lived and worked at great physical distance from the seat of Parliament or the site upon which the Magna Carta (1215) was signed, they were by and large no less sensitive of the importance of protecting and promoting the rights and practices their forbears had passed on to them.

Wilson’s patriotic assertions in the fourth paragraph of Considerations are emblematic of this exact sentiment. “The principles on which we have founded our opposition to the late acts of parliament,” he wrote, “Are the principles of justice and freedom, and of the British constitution.” He further added that Americans were entitled to the rights that they claimed invalidated the Stamp Act, “By the supreme and uncontrollable laws of nature, and the fundamental principles of the British constitution [.]” It is telling that Wilson – and no doubt some percentage of his audience – held the unwritten legislative compendium that is the constitution of Great Britain to be as powerful and inexorable as “the principles of justice and freedom” and “the uncontrollable laws of nature.” Compared to the rhetoric later utilized by Jefferson’s Declaration, wherein the highest powers invoked were that of “Nature” and an abstract “Nature’s God” and the rights being asserted were described as “self-evident,” this fixation on explicitly British precedent might seem almost reactionary. Far from seeking to justify something novel or exceptional, Wilson was evidently keen in Considerations to assert the high regard he and his fellow colonists nurtured for the status quo. “The colonists are entitled to all the privileges of Britons [,]” he stated plainly in the eleventh paragraph. It would seem to follow that 18th century Americans had invested the idea of being a Briton with a great deal of significance.

Much of the affection and admiration that he and his follow colonists nurtured towards British legal and political culture and tradition, Wilson went on to explain, had to do with how well-balanced and well-crafted they understood the contemporary British government to be. This, of course, had not always been so. The privileges and responsibilities of the House of Commons, the powers of the Lords, and the prerogatives of the Crown had all evolved over the course of centuries and in response to semi-regular periods of turmoil and instability. Elections, which Wilson described as, “A point of the last consequence to all free governments [,]” whose free exercise, “Is justly deemed the strongest bulwark of the British liberties [,]” had been made subject to regulation at various times in order to counter abuses of power or incidents of corruption. At times, he explained, Parliament had become too powerful, as when the session summoned by Charles I (1600-1649) in 1640 refused to disband in the midst of the constitutional crisis that preceded the aforementioned English Civil War. The result, Wilson determined in the twenty-fourth paragraph of Considerations, was a power imbalance whereby the legislators elected to pursue and promote the public good, “Became independent of the king and of their electors,” and thereafter, “Sacrificed both to that inordinate power which had been given them.” Though Parliament was intended, among other things, to restrain the arbitrary authority exercised by the Crown, Wilson reminded his readers that the Long Parliament (1640-1660) had made it quite clear that, “Kings are not the only tyrants [.]”

I know that this is a lot to throw at you. Bear with me. There is a point.

Experience had also proven, Wilson continued, that undue deference to the Crown on the part of Parliament was equally dangerous. When, following the restoration of the British Monarchy in 1660, the first Parliament under the reign of Charles II (1630-1685) was summoned, that body soon, as Wilson put it, “Lost all dependence upon [its] constituents, because [it] continued during the pleasure of the crown.” In point of fact, the so-called Cavalier Parliament sat from 1661 until 1679, was dominated by the House of Lords, and generally acted quite favorably towards the reinstated Charles. By the 1670s this air of permissiveness had worn rather thin, though, and the next several years were dominated by a simmering conflict between the king, his favorites in the Lords, and the increasingly frustrated Commons. The evaluation contained in Considerations, however, was notably more damning than this brief description would seem to indicate. Wilson described the members of the Cavalier Parliament as having, “Seemed disposed ingloriously to surrender those liberties, for which their ancestors planned, and fought, and bled [,]” in part because they had, “Bartered the liberties of the nation for places and pensions [.]” To his thinking, it seemed, the Cavalier Parliament represented another instance of a power imbalance wreaking havoc on the constitutional order and stability of the British (or in this case English) government. Parliament needed to be strong and the monarchy needed to be strong, it seemed, for British liberties to be truly safe.

Throughout these discussion, which occupied the better parts of paragraphs fourteen through forty-three of Considerations, Wilson peppered his assertions as to the strength and stability of British parliamentary government with references to pieces of legislation he understood as having strengthened the reigning constitutional order. These notably included allusions to the aforementioned Bill of Rights (1689), and to legislation passed during the reigns of William and Mary (Meeting of Parliament Act, 1694) George I (Septennial Act, 1716), and George II (Corrupt Practices at Parliamentary Elections Act, 1728). The cumulative result of this voluminous parade of legal citations, along with the aforementioned examination of the faults of the Long Parliament and the Cavalier Parliament, was the seemingly irresistible conclusion that the structure of the British government was not haphazardly arrived at. The restrictions placed on how Parliament’s elected members were chosen and how long they were permitted to serve, who could dissolve the House of Commons, and which royal prerogatives the people’s representatives were bound to obey, Wilson was keen to point out, were all the result of centuries of turmoil, conflict, modification, and reconstruction, and the product of many keen and rational minds all working towards the ultimate goal of protecting and serving the fundamental rights that Britons held dear.

Americans, Wilson explained, were sensible of this just as well as their British-born counterparts. They were proud to think of themselves as British, in spite of living a great distance from the soil of their forbears, and held British liberties close to their heats. They also understood that the British voting public rightfully expected Parliament to guard against any violation of those liberties. The countless modifications that had been made to the powers and structure of the national legislature existed largely to fulfill that purpose, and it was thus entirely reasonable for the general population to refuse to tolerate any action that might threaten or abrogate their sovereign rights. That being the case, Wilson found it rather curious that these same British citizens would expect their American cousins to willingly permit something they themselves would have found abhorrent. With the passage of the Stamp Act, Parliament had effectively claimed the right to tax the citizens of British America in spite of the fact that they enjoyed no representation therein. This claim was then made explicit with the approval of the American Colonies Act (1766), a piece of legislation which stated in no uncertain terms that Parliament,

Had hath, and of right ought to have, full power and authority to make laws and statutes of sufficient force and validity to bind the colonies and people of America [...] in all cases whatsoever [.]

The British public, Wilson asserted, would not have tolerated this kind of treatment. They expected their government to be elected, responsive, and accountable, having “planned, and fought, and bled” for their liberties. The descendants, in the main, of British immigrants to distant shores, it appeared to him inconceivable that 18th century Americans would accept anything less for themselves.

Friday, September 23, 2016

Considerations on the Nature and Extent of the Legislative Authority of the British Parliament, Part I: Context

I think by now it has become clear to my readers – all twelve of them – that there are certain rhetorical themes relating to the American Founding about which I am more or less preoccupied. I’m sure, for instance, that I’ve said it enough times for it to have become a personal aphorism that the American Founders were complex, flawed human beings, and that it is important to understand them as such. I also know for a fact that more than one of the essay series presented here have touched upon the notion that the American Revolution was not a political or intellectual event that occurred in isolation from the rest of the world. Intellectual and religious concepts born of the Old World clashed, combined, and evolved in the New World during the 17th and 18th centuries and produced a social and political environment that was ripe for a renewal of existing notions of statehood and state power. These themes, ideas, concepts, or whatever you want to call them, are extremely important to developing a nuanced understanding of the origin of the United States of America, and for that reason have been, and will be, repeated.

If anyone among my audience finds this to be unnecessary, tedious, or irritatingly didactic, I do apologize. It’s just that I find the American Founding is so easily and widely misunderstood or misinterpreted. National origins can inform a great deal about national culture. Or, to put it another way, where we came from can tell us a lot about who we are. If the general population of the United States were to come to a realistic, subtle, and complex understanding of their nation’s founding, I do believe they would be better equipped to tackle the political and social challenges that seem to threaten their sense of self than now appears to be the case. And though I don’t for a moment believe that my provincial scribblings have any real chance of moving the needle of American popular identity in this positive direction, that doesn’t mean I shouldn’t try to clearly present what I think are the most important aspects of the Founding for a readership I choose to assume is keen to learn. Changing the world can sometimes be as simple as changing the right mind. Only time will tell how the reimaging of the Founders presented by Lin-Manuel Miranda’s Hamilton, or Senator Bernie Sanders’ fearless interrogation of the 21st century status quo, will reverberate in the culture. Rest assured, however, they will. Pennies make pounds, and pounds make profits, the British say. Every little bit helps.

That being said, I don’t particularly enjoy repeating myself any more than the next person. I have, therefore, attempted to vary the subject matter of these posts so as to present the Founders themselves in as varied a light as possible. I’ve discussed the writings of lawyers, farmers, plantation-owning polymaths, at least two radical demagogues, an immigrant college student, and a self-educated housewife and political theorist. Many of them have been examined with an eye towards reinforcing the same themes stated above, but each has hopefully been given the chance to breathe and to live and to affirm themselves as individuals. Because the Founders weren’t really a group, with membership cards, and a meeting hall, and a rotating chair. They had different perspectives, were subject to different influences, and brought different approaches to the same set of problems. They worked together and at cross-purposes, and they loved each other and hated each other, and each of them had something distinct to say about what they believed to be the purpose of their nation and its place in the world. Consequently, understanding the Founders requires more than just a cursory knowledge of, say, Washington, Jefferson, and Franklin. John Dickinson, and Elbridge Gerry, and James Monroe, and Benjamin Rush were Founders, too, and knowing them makes it possible to know American better.

In that spirit, I’d like to take a look at a pamphlet written in 1768 and published in 1774 by a man named James Wilson. Not alone among the Founders, though certainly unusual, Wilson was an immigrant to the American colonies. A native of Scotland, his British education imbued him with a perspective unlike that of his colonial contemporaries, and Considerations on the Nature and Extent of the Legislative Authority of the British Parliament manifestly bears this out. Drafted in the heat of the Anglo-American crisis of the late 18th century, when Parliament and the colonies battled back and forth over the proper characterization of their shared political and legal relationship, Wilson’s essay struck a tone of temperance, peerless attention to detail, careful deliberation, and transparency. Far from the rabble-rousing of Ethan Allen, the fiery denunciations of Thomas Paine, or the vaguely self-righteous pontification of Thomas Jefferson, Wilson’s Considerations treated the conflict between the colonies and Parliament almost as if it were a legal dispute in need of litigation. Precedent was evidently what mattered to a man of Wilson’s thinking, and logic, and respect for the rule of law. What the contemporary British government and the citizens of British America failed to agree on, he argued, was not what or how much to tax, but rather from where the reigning ministry summoned the right to extend parliamentary authority over populations it did not formally represent. Though a highly relevant point of debate in the late 1760s and early 1770s, this rather nuanced position would seem to fall outside the modern popular understanding of what the American Revolution was about. For this exact reason – and because of Wilson’s reliance on and affection for British/English legal culture – Considerations and its author are worth studying and understanding.

But first...

Born in 1742 in Caskerdo – now the village of Ceres – in the east of Scotland near the royal burgh of St. Andrews, James Wilson’s outwardly humble origin as the son of Presbyterian farmers belies the rich literary and scientific culture he was exposed to in his homeland. 18th century Scotland, thanks in no small part to the Act of Union (1707) eliminating the Scottish Parliament and planting the new kingdom of Great Britain’s political establishment firmly in London, was a society dominated by a highly-skilled and educated elite of lawyers, professors, artisans, scientists, and clergymen. Combined with a densely-woven network of parish schools – the product of a Calvinist religious establishment that prized literacy – and some of Europe’s oldest universities, Scotland emerged from its union with England as a centre of literacy, philosophy, economics, and scientific thought. Young James was accordingly afforded the privilege of studying divinity, the classics, and political philosophy at the Universities of St. Andrews (founded in 1413), Edinburgh (founded in 1583), and Glasgow (founded in 1451) long before his arrival in colonial Pennsylvania. While he failed to attain a degree from any of these institutions, their influence on his later writings should not be underestimated. The Scottish Enlightenment – as the country’s 18th century has become known – gave rise to the Utilitarianism of Francis Hutcheson (1694-1746), the Empiricism of David Hume (1711-1776), the Common Sense Realism of Thomas Reid (1710-1796), the economics theories of Adam Smith (1723-1790), and the poetry of Robert Burns (1759-1796). Born and raised in a society so awash with creativity, innovation, and intellectual rigor, Wilson would have had to be particularly dense not to have his mode of thinking fundamentally affected.

Without being able to say why – it may have had something to do with being one of seven children, likely not the eldest, and thus ineligible to inherit the family farm – Wilson immigrated to British America at some point in 1765. He lived first in New York for a time, and then settled in Philadelphia in 1766. Thanks to the letters of introduction that accompanied him he was able to secure a tutoring position at the Academy and College of Philadelphia – a “charity school” founded in 1749 by, among others, Benjamin Franklin – while also studying law under noted Pennsylvania solicitor John Dickinson (1732-1808). Wilson thereafter attainted the colonial bar, moved to nearby Reading, and established a remarkably successful law practice. By 1767 he had done well enough to purchase a farm in Carlisle, on the west bank of the Susquehanna River, and in a few short years attained a reputation for himself as one of the finest lawyers in the colony – if not in all of the colonies. In 1773 he became one of the founding trustees of the Carlisle Grammar School, then intended to serve the needs of Pennsylvania’s western frontier landholders, and in 1776 he was chosen to represent the colony at the Second Continental Congress (1775-1781). Thereafter, Wilson attended the Philadelphia Convention in 1787, served as a delegate at Pennsylvania’s ratifying convention, and in 1789 was appointed by George Washington as one of the original six Justices of the United States Supreme Court.   

            Based on this relatively brief biography, there are a few characteristics James Wilson brought to the American Founding that are worth pointing out in particular. As noted earlier, he was an immigrant – and more specifically a British immigrant. Unlike, say, Thomas Jefferson or John Adams, who were born and raised in Virginia and Massachusetts, respectively, and were accordingly forced to perceive and understand “the Mother Country” at a considerable geographic and cultural distance, Wilson spent the first twenty-three years of his life in Britain. It was less likely, then, that British law, British culture, and British politics existed for him as the abstractions – nefarious or benign – they often became in the colonial American popular imagination. This, he had in common with Thomas Paine; British natives both, their understanding of how Parliament functioned, or how authority in Britain asserted itself more generally, was the result of more intimate experience then that enjoyed by their various colonial contemporaries. Without stating unequivocally that this familiarity allowed either of them to speak with greater authority than most on the subject of Great Britain or its parliament, it would at least seem fair to conclude that Wilson, like Paine, saw his homeland through different eyes than his American-born colleagues.

            Wilson’s education also surely set him apart from the great majority of his adopted countrymen. Whereas most young men in the colonies – outside of New England, at any rate – were homeschooled until they reached the appropriate age to be admitted (if they were wealthy enough) to an institute of higher learning – the College of New Jersey, for instance, or Harvard, or Yale, or Virginia’s College of William & Mary – Wilson was the beneficiary of 18th century Scotland’s aforementioned well-developed education system. Having attended parish schools and three of Europe’s finest universities by the time he was in his early twenties, he doubtless would have been considered, by the standards of 18th century America, exceptionally learned. Even without a structured primary education, this likely would have been the case. Without in any way denigrating the quality of colonial America’s post-secondary institutions, their Scottish equivalents benefitted from a deeper talent pool from which to construct their respective faculties. Situated in Europe – albeit, cold, damp, Northern Europe – the University of St. Andrews, or the University of Edinburgh, could potentially attract scholars from across Britain, or even from distant outposts of the larger British Empire, to provide instruction to their students. King’s College, for example, though the premier centre of learning in 18th century New York, was far less likely due to its distance from the centres of Anglo-American culture to be able to draw upon the same expansive reservoir of talent and expertise. Having been on the receiving end of the same, Wilson would have been, if not better equipped than certainly differently equipped, to perceive, interpret, contextualize, and react to the political convulsions that wracked the late 18th century Anglo-American relationship compared to most residents of the colonies.

            Also worth noting, more in relation to the general context in which Wilson found himself, are the exchanges that had taken place between the colonies and Parliament at the time Considerations was written in 1768 and published in 1774. The passage of the Stamp Act in 1765, intended to raise revenue meant to pay for the maintenance of a large British military presence in North America, raised ire across the colonies and resulted in a veritable fusillade of negative press, public demonstrations, and organized resistance. Unlike previous taxes levied upon the citizens of Britain’s American dependencies with the intention of regulating commerce, like the Molasses Act (1733), the Iron Act (1750), and the Sugar Act (1764), the Stamp Act applied to transactions and purchases made within the colonies rather than to products imported from without. Colonists from Maine to Georgia objected to the resulting ubiquity of the levy, and to the fact that it was explicitly intended to help fill the coffers of the British government. Accepting that governments were entitled to raise funds in order to defray administrative and security costs, many American colonists argued – through street protests, written petitions, and public orations – that said governments could only tax those whom they adequately represented. Lacking representation in Parliament, it followed that the colonies could not be made subject to direct, internal taxes such as was mandated by the Stamp Act. In June of 1765, three months after said act was granted royal assent, the legislative assembly of Massachusetts proposed that the various colonies consult with one another in order to formulate a formal, collective response. Nine colonies responded to the summons in the affirmative – New Hampshire chose not to participate, and Virginia and Georgia were prevented from doing so by their governors – and accordingly sent delegates to the resulting “Stamp Act Congress” in New York City.

            Among the petitions and remonstrances that the Congress ultimately drafted – intended to convince the House of Common, the House of Lords, and the Crown to seek the repeal of the offending legislation – perhaps the most revealing document to come out of the Stamp Act Congress was the so-called Declaration of Rights and Grievances. Intended mainly for domestic consumption, it took the form of a manifesto by which the various participating colonial governments attempted to balance their continued loyalty to the British Crown with an understanding of British law and custom that rendered the Stamp Act injurious to the rights enshrined in the British Constitution. “The members of this congress,” it opened, were, “Sincerely devoted, with the warmest sentiments of affection and duty to his majesty's person and government [and] inviolably attached to the present happy establishment of the protestant succession [.]” To this conciliatory preamble, the delegates added a catalogue of thirteen numbered grievances that attempted to couch their collective discontent in terms intended to portray the colonial position as being entirely compatible with the well-being and self-interest of the greater British Empire.

            The second point, for example, declared that, “His majesty's liege subjects in these colonies are entitled to all the inherent rights and privileges of his natural born subjects within the kingdom of Great Britain,” while the third asserted that it was,

Inseparably essential to the freedom of a people, and the undoubted rights of Englishmen, that no taxes should be imposed on them, but with their own consent, given personally, or by their representatives.

Both of these clauses invoked the concept of individual rights that were “inherent” or “undoubted,” core to the notion of being a British subject or an Englishman, and carried with them certain inviolable guarantees. By calling upon them, the colonists were thus merely attempting to assert the existence of something that all British people – living in Britain proper, the West Indies, or rural Massachusetts – were entitled to, relied upon, and had more than once proven themselves willing to protect with force of arms. The sixth grievance drove home the perceived incompatibility of the Stamp Act with British law further still by combining the hallowed personage of the British Constitution with a rather stark turn of phrase doubtless intended to deprive the stamp tax of any shred of legitimacy. “All supplies to the crown,” it read,

Being free gifts of the people, it is unreasonable and inconsistent with the principles and spirit of the British constitution, for the people of Great Britain to grant to his majesty the property of the colonists.

Whereas as tax might be explained away as an instrument intended to help balance the trade of certain commodities across a complex economy – a justification many American colonists were willing to concede – an act of law effectively granting the people of one country the authority to take at will the property of the people of another was another beast entirely. To those who truly believed in “the principles and spirit of the British constitution,” so ran the implication, there was no power on earth that could make such an act acceptable, or even possible.

Accordingly, the Declarations and Grievances of the Stamp Act Congress is best thought of as an inherently conservative document. Rather than deny the appropriateness of something that had the power of precedent behind it, the assembled delegates asserted that Parliament was the one guilty of baseless innovation. The government of Prime Minister Grenville had broken with tradition and violated the terms of the British Constitution by taxing citizens it could not claim to represent. The colonists, displeased and distressed by the implication of allowing Parliament to extend its reach across the Atlantic, countered by claiming only that they wished to uphold what they understood to be the right and proper legal and constitutional order of the British Empire. Indeed, the conclusion of the Stamp Act Congress’s Declaration characterized this impulse as a kind of sacred obligation. “It is the indispensable duty of these colonies,” it stated,

To the best of sovereigns, to the mother country, and to themselves, to endeavor, by a loyal and dutiful address to his majesty, and humble application to both houses of parliament, to procure the repeal of the act for granting and applying certain stamp duties [.]

It is worth remarking upon that at this juncture in the Anglo-American crisis of the late 18th century neither revolution nor independence was being given serious public consideration. Far from discarding their relationship with Britain, the American colonies seemed keen to preserve it – albeit, on the terms they understood to be correct and justified. James Wilson’s Considerations was drafted three years after the adjournment of the Stamp Act Congress in October, 1765, and followed very much in the footsteps of that group’s conservative manifesto.  

Friday, September 16, 2016

Hamilton, History, and the Importance of Process

This week I’d like to try something a little different.

Some time ago in this series – never mind how long – I admitted a fondness for the exceedingly successful Broadway musical Hamilton, conceived of and starring the brilliant Lin-Manuel Miranda. As I stated at the time, the abundance of praise the production was garnering left me feeling both enthused and uneasy, and led me to an examination of the first piece of political writing the titular Hamilton ever drafted. Feeling reasonably satisfied that I had added, in my own way, to the conversation then ongoing about the legacy of the 1st Secretary of the Treasury, I then laid aside my proverbial pen and moved on. Having listened, in the interim, to the original cast recording of Hamilton many, many more times, however, I find that my concerns have not been exorcised. I still find the show to be of inestimable artistic value, and take a very strange, very specific pleasure in hearing talented men and woman like Daveed Diggs and Rene Goldsberry sing about Paine’s Common Sense or the political prowess of “Southern Mother-Fu**ing Democratic-Republicans.” What I have discovered, however, is that my prior apprehensions about Miranda’s fiddling with detail and chronology for the sake of narrative are perhaps not as pedantic as I might have thought. To that end, what follows will be an editorial by which I hope to explore one particularly troubling way I feel Hamilton fails to responsibly communicate the history that is its bread-and-butter.

To the great credit of Mr. Miranda, Hamilton does appear to takes its subject matter very seriously in spite of its somewhat unconventional premise as a rap/hip-hop retelling of the life of an American Founding Father. It is very dense, owing both to its subject matter and the innate lyrical character of rap music, but succeeds admirably in communicating a great deal about who the Founders were, how they helped give rise to the United States, and the ways they perceived themselves and each other. As Miranda has said in interviews with news outlets and media personalities, part of what attracted him to the subject matter was the realization that in spite of their monumental talents and accomplishments the Founders were human beings. Their endeavors, he elaborated, can be very effectively viewed through the lens of personality and ego and emotion, thus grounding them for a contemporary audience that maybe doesn’t care so much about banking but enjoys a juicy sex scandal now and then. I will not argue with this rationale. The Founders were, fundamentally, people. Their intelligence and ingenuity and vision are worthy of admiration, but the significance of what they accomplished would be meaningless if we didn’t also understand that the United States of American was created by individuals as broken and as flawed as any one of us. Where I find fault with Hamilton rather concerns its usual position as both a piece of wildly popular entertainment and an example of public history. More specifically, I am troubled by Mr. Miranda’s evident disregard for the importance of historical process.            

History, contrary to the way we often like to think about it, isn’t really about moments. The signing of the Declaration of Independence is a moment. The Battle of Hastings is a moment. Ghandi’s Salt March is a moment. Moments stand out in our memory, bright, and indelible, and practically vibrating with significance. But the truth of it is, none of these moments, or the many like them that human beings the world over so love to commemorate, are all that helpful to understanding how we got to where we are, and why, unless we also understand the processes that set them in motion. Without understanding the origins of the American Revolution, what is the singing of Thomas Jefferson’s declaration but a gathering of powdered wig enthusiasts? Absent the context of Britain’s historical presence in India, Ghandi’s evolution as a civil rights activist, and the rationale of taxing Indian salt production, what was the Salt March but a walk on the beach? These moments were preceded by sequences of events – processes, if you like – whose order and timing are as important to grasping their significance as the end results themselves. Paying heed to these processes helps us understand why specific events happened when they did, why they did, and how they did, permitting us to grasp all of what history has to offer rather than just the factoids and trivia answers.

In spite of its evident fixation on specific moments, Hamilton would appear to be a narrative of process. When the show begins, its star is a fresh-off-the-boat immigrant from the Caribbean looking to make a name for himself in New York City and when it ends he is a battered, slightly world-weary former statesmen prepared to stake his life on what remains of his professional dignity. From here to there, a great deal occurs; Hamilton fights in a war, meets a girl, becomes a father, helps forge a country, and destroys his own reputation. These events are presented in a what appears to be a chronological order – Hamilton’s first meeting with Washington takes place before he meets his wife Eliza, which takes place before the birth of his son, which takes place before he becomes Secretary of the Treasury, etc. Along the way, the audience watches relationships form, rivalries take root, and the nation we know as the United States of America coalesce. Certain historical details have been altered by Miranda to suit the needs of the narrative, but I would submit that few of these changes are terribly problematic. Even if Hamilton is the only source of information about the American Founding for the thousands of people who have attended performances and the millions more who have listened to the original cast recording, it’s probably okay if a large portion of them think that the 1st Secretary of the Treasury may have had a romantic relationship with his sister-in-law.

Choices made by Miranda become harder to dismiss, however, when they misrepresent the nature and importance of the American Revolution and the roles played by certain prominent individuals. This is because the goals of Hamilton as a piece of entertainment are somewhat at odds with its role as a piece of public history. As a dramatist, I think it’s fair to speculate that Mr. Miranda wanted his show to be as impactful and as emotionally resonant as possible. And if interviews are any indication, he was also concerned with communicating something important to his audience about the nation they all share, how it was created, and who did the creating. While I dare say he has succeeded on both fronts, I feel he has perhaps neglected the latter inclination in favor of the former. Hamilton is still history, in spite of the distinctly popular form it takes. People enjoy watching and listening because the show is so exceedingly well-written and well-performed, but by all accounts they also come away feeling as though they have learned something real and true. And because what they feel they have learned is true, some of them no doubt feel they have licence to act on it. “Hamilton showed me that we’ve been fighting about the same things for two hundred years, so I’m going to try to be less pessimistic about the political disagreements I see around me,” an audience member might think to themselves. I make no objection to anyone drawing this kind of conclusion. It seems a healthy one, and perfectly in keeping with what I understand to be the significance of the American Founding. What rather worries me is that, in pursuit of a stronger narrative, changes made by Mr. Miranda to the story of Alexander Hamilton’s life will lead people to exactly the wrong conclusions about how and why the Revolution is important to modern American life.    

 Consider, in this vein, the show’s first act, running approximately from the opening number (“Alexander Hamilton”) to the events surrounding the Battle of Yorktown (“The World Turned Upside Down”). This introductory sequence deals to varying degrees with the origins of the show’s main character, his understanding of the world in which he lives and moves, and the nature of the conflict (the Revolution) he chooses to play a role in. Within this twenty song sequence, there are four in particular whose presentation of certain facts combine to create a rather confusing and potentially misleading portrayal of the some of the early events of the American Revolution. They are, in the order that they occur, “Aaron Burr, Sir,” “My Shot,” “The Schuyler Sisters,” and “Farmer Refuted.”

In “Aaron Burr, Sir,” Hamilton is presented as having met the titular Burr, tailor and spy Hercules Mulligan, South Carolina soldier and radical John Laurens, and French émigré the Marquis de Lafayette shortly after his arrival in America. Mulligan, Laurens, and Lafayette are presented as a trio of close friends who take to the impetuous Hamilton, and the three of them take turns proclaiming their sexual and martial prowess while Burr looks on chagrined. Because Hamilton began his tenure at Kings College in the autumn of 1773, and “Aaron Burr, Sir,” has him asking Burr for advice on how to get into the College of New Jersey (a venture which ultimately failed), it would logically follow that his initial meeting with Mulligan, Laurens, and Lafayette was meant to take place sometime between his arrival in America in late 1772 and the end of 1773. As history records it, however, Laurens joined the Continental Army in 1777 and met Hamilton for the first time while they were both aides-de-camp to George Washington. Lafayette was another of the general’s young adjutants Hamilton encountered during his war service; he had departed France for America, also in 1777, after having been inspired by the colonist’s struggle.

Mulligan is the only one of the three men Hamilton could have encountered at the early period in his life the show seems to intimate “Aaron Burr, Sir” takes place. Hamilton stayed with the Mulligan family, who were acquainted with his former employers in the West Indies, during his early residence in New York City, and it may have been Mulligan’s own radicalism – he had been a member of the New York Sons of Liberty since the 1760s – that set young Hamilton on the path to supporting the Revolution when it arrived in force after 1775. Rather than represent the process by which Hamilton met this trio of companions, however, Miranda chose to collapse their disparate encounters down to a single moment. While this may seem like a simple matter of narrative expedience, choices made in subsequent numbers compound the issue – a disregard for process – that “Aaron Burr, Sir” introduces.

Burr’s disdain for the juvenile antics of Mulligan, Laurens, and Lafayette is met by Hamilton’s rebuttal in “My Shot.” During this spirited number, Hamilton lays out his view of the conflict between Britain and it American colonies (“Essentially, they tax us relentlessly/Then King George turns around, runs a spending spree”) and its inevitable result (“So there will be a revolution in this century”). Combined with the disregard for chronology found in “Aaron Burr, Sir,” these specific lyrics in “My Shot” oversimplify the actual causes of the Revolution while simultaneously making it seem as though it was already underway when Hamilton arrived in America. Hamilton’s claim that Britain was taxing its colonies “endlessly” at the same time George III was running “a spending spree” is particularly vague and misleading. British taxes on sugar, tea, stamped paper, and other imported goods were not in themselves what so alarmed large portions of the colonial population, as Hamilton himself stated in A Full Vindication of the Measures of Congress (1774). The disagreement between Parliament and the colonies was not over “three pence per pound on East India tea,” he asserted, but rather concerned Britain’s claimed right to tax the colonies without providing for their representation in the House of Commons. As to the “spending spree” George III was supposedly guilty of, Miranda may have intended to refer to the costs Britain had accrued during its defence of its American possessions during the recent Seven Years War (1754-1763). This would hardly seem to accord with the sense of irresponsibility Hamilton plainly intended to convey with the lyric, however, nor with the impression of British culpability audiences are seemingly meant to imbibe upon hearing it.  

Indeed, it seems that Hamilton isn’t terribly interested in helping its viewers/listeners understand why the Revolution happened, or why certain people came to support it. Mulligan, Laurens, and Lafayette are presented as already being in favor of a revolt against British authority when they first meet Hamilton, and he drives forward their narrative of rebellion by claiming that insurrection is inevitable (“There will be a revolution in this century”), asking the world at large, “When are these colonies gonna rise up?” None of them convey uncertainty, need convincing, or portray the conflict they are so eager to take part in as anything more than a black and white, right or wrong dichotomy. Britain, in the world of Hamilton, is wasteful and corrupt while America is, in the words of its protagonist, “Young, scrappy, and hungry.” The quartet strongly reflect this rather transparent characterization; their individual reasons for supporting the Revolution, beyond seeking an opportunity to prove how dangerous, manly, or generally awesome they are, are either left mysterious or painfully oversimplified. As Miranda paints Hamilton and his friends, they are little more than young men being young, and gung-ho, and getting caught up in the moment. The process by which the Revolution was set in motion goes unmentioned, and one is seemingly left to conclude that this is so because it is unimportant. 

The two numbers that follow “My Shot” maintain Hamilton’s chronological tomfoolery and disregard for historical progression by further portraying the Revolution as a spontaneous “moment” rather than the culmination of a lengthy process. In “The Schuyler Sisters,” presented shortly after “My Shot,” the audience is introduced to Eliza, Angelica, and Peggy Schuyler while they walk the streets of New York City. Burr intercepts them, expresses his interest in Angelica in particular, and the sisters respond with a spirited affirmation of their positive feelings toward the cause of the Revolution. Angelica takes the lead during this number, and through various statements makes it clear to the audience that she is both intelligent and well-read. “I’ve been reading Common Sense by Thomas Paine,” she proclaims, followed by a recitation of the opening lines of the Declaration of Independence and a promise that when she meets its author, Thomas Jefferson, “I’m ‘a compel him to include women in the sequel!” Though there is generally little to object to in the way in introduces of two of the Hamilton’s principle characters, “The Schuyler Sisters” is worth drawing attention to because of where it seems to place the events it portrays on the timeline of the Revolution. If Angelica’s name dropping is any indication, audiences are meant to conclude that Angelica, Eliza, and Peggy’s promenade through Manhattan takes place after Thomas Paine’s inflammatory pamphlet was published in January, 1776 and after the United States declared its independence in July of the same year.

“Farmer Refuted,” however, calls this placement into question by presenting events that took place before 1776 as though they occurred after the Revolution was well under way. The number in question depicts Hamilton offering his response to the pro-British sentiments of one Samuel Seabury, accompanied by his cohorts Mulligan, Laurens, and Lafayette. Hamilton and Seabury trade lyrics back and forth, in the manner of a debate, before Hamilton eventually overpowers his comparatively meek opponent. During his introductory verses, Seabury pleads with his fellow colonists to, “Heed not the rabble that scream revolution/They have not your interests at heart,” and further warns that, “Chaos and bloodshed are not a solution.” Hamilton replies that, “Chaos and bloodshed already haunt us,” asks “Why should a tiny island across the sea regulate the price of tea?” and throws in a hearty call of, “For the revolution!” Because “Famer Refuted” follows “The Schuyler Sisters,” audiences have every reason to believe that this spirited back-and-forth takes place after war with Britain had commenced and after the United States had declared its independence. 

In point of fact, however, this was not the case. Seabury and Hamilton engaged in their rhetorical sparring match – each publishing two pamphlets – between November, 1774 and February, 1775. At that time, the Revolution had yet to boil over into armed conflict, colonial independence was not yet considered a series proposition, and the discussion between supporters of Britain and supporters of the First Continental Congress were still centered on issues of trade, political representation, and legal precedent. For this reason it seems rather strange for Seabury to open his remarks by cautioning against a resort to “chaos and bloodshed,” and for Hamilton to respond that “chaos and bloodshed already haunt us.” Every word the two men exchanged was published before the start of the Revolutionary War in April, 1775. Shots had not yet been fired, and blood had not yet been spilled. In fact, one of the first major acts of the Second Continental Congress – convened for the first time in May, 1775 – was the issuance of the so-called “Olive Branch Petition” whose intended purpose was to make a final attempt at avoiding armed conflict between Britain and the American colonies. In spite of this fact, however, Hamilton has its lead joining in a chant of “For the Revolution” at a time when revolution was actively being avoided.  

Miranda’s use – or misuse, as it were – of Hamilton and Seabury’s war of words is made particularly troubling by the fact that the publication of A Full Vindication of the Measures of Congress (1774) and The Farmer Refuted (1775) represent an extremely important period of political awakening in the young immigrant’s life. Through drafting these early polemics, Hamilton transitioned from viewing the conflict between Britain and the American colonies with a kind of pragmatic neutrality to fully supporting the Continental Congress and taking up arms in defense of American liberty. Considering the essential role Hamilton went on to play in the post-Revolutionary consolidation of the United States, a “conversion experience” of this kind would seem especially significant. In another attempt to collapse a process down into a moment, however, Hamilton’s “The Farmer Refuted” makes no attempt to represent this conversion. Instead, it’s young, upstart protagonist presents himself as already convinced of the truth of the revolutionary cause. As “Aaron Burr, Sir,” and “My Shot” likewise fail to clue the audience in to how and why Hamilton became a supporter of the Revolution – beyond the inferred psychological premise that he’s compensating for his own social and material insignificance – viewers/listeners are once more left to conclude that context and process matter less than results.

As a historian, this idea pains me. Because, Hamilton didn’t become a supporter of the Revolution out of caprice, and independence entered the American political conversation slowly. Events preceded events, which preceded other events, which set developments in motion, which created the results we know and commemorate. Hamilton does an amazing job of breathing life into these results, these moments that defined the destiny of a nation. But without understanding what caused them to occur and why, their significance can become dangerously skewed. Over the course of its first act, for instance, the show would have its audience believe that rebellion was in the air when its protagonist first arrived in America, that he identified with the prospect of social upheaval out of a sense of bravado, youthful vigor, and a desire to improve his station, and that he become an early supporter of the Revolution as a result. Dramatically, this narrative works. Historically, it is exceedingly problematic. By throwing Hamilton into an existing climate of rebellion and then jumbling the timeline of the early 1770s, an audience otherwise unacquainted with the history of the American Founding is left with few explanations as to why the larger events the major players are actively participating in are happening at all. It’s made clear enough that Hamilton and his friends are in favor of the Revolution and that ultimately Britain was defeated, but the causes of the conflict and the reasons for Hamilton’s participation are rendered hazily at best.

Across the first act numbers “Aaron Burr, Sir,” “My Shot,” “The Schuyler Sisters,” and “Farmer Refuted,” the early events of the Revolution all seem to happen at once. Britain and its colonies are at odds for some reason (probably taxes), and Hamilton and his brash young friends are squarely in favor of rebellion for some reason (probably not taxes). Moments picked out in the midst of it all are rendered vividly, skillfully, and powerfully, to the credit of all involved. But without any context to explain why people are doing what they’re doing – why some are willing to die for their cause while others are inclined to throw themselves on the mercy of a higher power – what meaning is a person supposed to take away? Hamilton, Burr, Angelica Schuyler, and Thomas Jefferson – these characters are rendered as emotionally vibrant, flawed, and compelling individuals, and their various travails form the core of Hamilton’s dramatic presence. But Hamilton is more than just drama. Hamilton is history – or, more importantly, it is public history.

The global audience of Lin-Manuel Miranda’s latest show is already easily in the millions, and the impact it may wrought on a generation of theatre-goers, students, and public officials is at this stage incalculable. The power of art to change the way a person thinks should never be underestimated, and Hamilton may yet prove, as a consequence of its subject matter, to indelibly alter the way Americans understand their country, its identity, and the nature of its public life. For this reason, I find myself especially concerned that American audiences of Hamilton will end up walking away from the show imagining that they understand something about the origins of their nation. This is a good thing, in theory, but I fear that the knowledge they will have gained is somewhat at odds with reality. And when I consider the percentage of this audience who are likely to check what the show has brought to their attention against the facts as they have been recorded, I feel a knot develop in the pit of my stomach. The American Revolution was a long, drawn-out process that developed slowly from protest to petition to armed insurrection. The show does not reflect this. Alexander Hamilton was an ardent pragmatist, often to the chagrin of his colleagues and rivals, and his development as a revolutionary was the result of thought and debate and personal reflection. The show does not reflect this. It reflects outcomes, results and moments spectacularly, colorfully and engagingly, but chiefly in isolation from the larger processes that made them possible. This is a problem.

I would not, for a moment, suggest as a solution that Mr. Miranda or his collaborators rework the show in order to better reflect the larger context of the moments they have chosen to present. The historian shall not tell the dramatists how to do their job. Rather, I would simply enjoin any and all who have found themselves captivated by the story that Hamilton so skillfully relates to refrain from understanding what they have seen as pure and simple fact. Hamilton is not the last word on the American Revolution. Rather, it is an inspiration and an exhortation to seek out the truth for oneself.

Friday, September 9, 2016

Federalist No. 51, Part V: Lessons & Limitations, contd.

Less ambiguous – for a modern audience, at any rate – than certain of Madison’s explanations in No. 51 for the structure of the federal government was his assertion of the danger presented by unchecked majority rule. Though the government that he and his colleagues had designed relied heavily on the common notion that a majority, be it elective or legislative, possessed inherent legitimacy, he was careful to note that the rights of the minority did not disappear simply because they were the minority. Under the system of government framed by the proposed constitution, the winner of an election for a seat in the House of Representatives was the candidate that received the most votes, and a piece of legislation put before the federal Congress became law when a majority of those present voted in its favor. That being said, Madison cautioned in No. 51, the residents of a given congressional district who voted against the eventual winner did not give up their right to be represented, and even an overwhelming majority in Congress could not be permitted to abrogate the liberties of those whose representatives were in the minority. “In a society,” he accordingly asserted in the tenth paragraph, “Under the forms of which the stronger faction can readily unite and oppress the weaker, anarchy may as truly be said to reign, as in a state of nature [.]” In order to prevent such an outcome from playing out within the proposed national government, some kind of safeguard was necessary.

Before moving on to discuss the counter that Madison offered in Federalist No. 51 against the scourge of popular tyranny, the basic assumption he put forward perhaps bears some thought. In the United States of the late 18th century, legislative authority was almost universally trusted to a great extent than executive authority. As a result, many state constitutions, and even the proposed national constitution, placed a great deal of power in the hands of legislative authorities and consequently a great deal of trust in the concept of majority rule. This was acceptable, Madison argued in No. 51, or even preferable. Rapid, arbitrary decision-making – a king deciding to raise an army on his own authority, for instance – was made far more difficult by diffusing power across a large body of legislators, each of whom nurtured their own personal set of interests and priorities. That being said, he warned, majorities were no freer from sin than any man. The decisions of the Massachusetts General Court, the Pennsylvania Legislative Assembly, or the federal Congress may well have carried the weight of law and the confidence of the people, but each of these bodies was still as capable of infringing upon the rights of man and citizen as any king, governor, or president. Majority rule is a simple and durable logic by which to govern, but a majority that abuses its power and violates the liberties of those that fall outside of its consensus effectively abdicates its claim to legitimacy. Founder par excellence James Madison believed this, and said as much, in 1788.

Without picking out any specific examples, it would be difficult to argue that subsequent generations of Americans have always held to this principle. Across the history of the United States, spanning the 18th, 19th, 20th, and 21st centuries, state legislatures and Congress alike have been guilty of abusing their collective ability to make law in order to oppress or sideline ethnic, religious, and political minorities considered by the mainstream as falling outside the orthodox definition of responsible citizenship. Native Americans, African-Americans, Chinese Americans, Catholics, Mormons, Muslims, Socialists, and Communists, to name but a handful, have all been victims of popular tyranny – of “we the people” – at one point or another. And though many of the worst abuses have since been remedied, the temptation and the ability to visit similar offenses upon equally outnumbered populations remains ever-present. This, Madison tried to make clear in Federalist No. 51, is why constant vigilance is required of every responsible citizen of a republic. Not only is it essential, he asserted, that every person vigorously guard their own rights, but they must fly to the defence of their neighbor’s rights as well. Governments that are subject to election are subject to change; and so majorities change, and so laws change. The difference between being “in” and being “out” can at times boil down to a handful of votes, and so it behooves every person, whether they are at the helm of power or not, to rally against the abuse of those outside the consensus of the moment. There are few more valuable lessons than this that documents like No. 51 have to impart, and fewer yet more clearly applicable to the American historical and political context.  

Madison’s solution to this problem, his answer to the requirement that a republic, “Guard one part of the society against the injustice of the other part [,]” was an unusual one for its time. Unlike a monarchy, he argued in the tenth paragraph of No. 51, which could rely on the existence of an entity removed from the electorate –a king or an aristocracy – to guard the rights of the minority, the United States was required to look internally for protection against the inescapable threat of popular tyranny. Fortunately, he observed, the American republic occupied a vast swath of territory and held within its borders a similarly large and varied population. Therein lay the key to the country’s salvation. Counter to the contention advanced by French philosopher Charles-Louis de Secondat, Baron de Montesquieu (1689-1755) – perhaps the single most popular European thinker among the colonial American elite – that stable republics could only exist within a small geographic expanse, Madison maintained in No. 51 that the great size and diversity of the United States actually made the nation more secure, its citizens safer, and its government lest given to abuse. The reasoning behind this claim, a truly revolutionary notion for its time and place, was exceptionally simple.     

Encompassing such a large expanse of territory, the United States was home to a great number of people spread across a set of geographically diverse regions and engaged in a sizeable number of different professions. As a population, Americans recognized different religious faiths, spoke a fair number of different languages, and nurtured a great many different individual and community priorities. They were unalike, to put it simply, and could be said to agree on very little. This, Madison argued, was a great virtue. “In the extended republic of the United States,” he declared in the tenth paragraph of No. 51,

And among the great variety of interests, parties, and sects which it embraces, a coalition of a majority of the whole society could seldom take place on any other principles than those of justice and the general good.

Smaller populations could boast of no such inherent protection against majoritarian tyranny. Products of the same geography and more likely to share the same customs and cultural experiences, a republic of three thousand or five thousand citizens could very easily fall prey to a political consensus that prioritized the mainstream and ignored or punished the outsider. The United States of America, by comparison a nation of approximately three million as of the mid-1780s, was less likely to give rise to such exclusive majorities because there was almost no single faith, sect, profession, or culture that was truly and unequivocally dominant. Thus robbed of the opportunity to further the priorities of their particular creed by numbers alone, Madison believed that his fellow Americans would have no choice but to forge alliances and build majorities around only those ideals – liberty, stability, reason, justice, etc. – that accorded with the rights and sensibilities of all.

        While there can be no denying that James Madison was a brilliant and innovative political philosopher and statesman, and that his ideal of the “extended republic” was both ingenious and theoretically sound, a moment’s consideration of modern American political culture reveals beyond any doubt that the even the vaunted Founders could not foresee all that the United States would become. The U.S. is, as Madison observed, a very large country. From the Atlantic to the Pacific, its three million square miles currently contains upwards of three hundred million people. These figures are far in excess of what Madison believed sufficient to ensure a diverse and divided population, and, true to form, American politics at the dawn of the 21st century can fairly be described as combative. Disagreements at the state and national level over the purpose of government and the needs of society have made consensus relatively rare, and the debates that spin out of national elections frequently reveal the great diversity of interests and priorities nurtured by the voting public. In spite of this abiding diversity, however (and as mentioned previously), majorities have emerged throughout the history of the United States that have served to disempower and disenfranchise whomever fell outside the reigning consensus. Entire communities, ethnic, religious, or otherwise, have been barred from owning property, from voting, and from attending the schools and patronizing the businesses of their choice. The reason for this evident contradiction, between what Madison assured his readers was impossible in 1788 and what 21st century observers cannot fail to recognize, stems from the emergence of something the Founders widely rejected and consequently failed to account for: political parties.   

            The antipathy the Founders nurtured towards the concept of partisan politics has been discussed in previous posts in this series. Having inherited, in large part, many of the political assumptions and customs of their British radical antecedents the Whigs, supporters of the American Revolution and American republicanism accordingly shared their forebears’ distrust of any faction or individual in government whose motivation were anything other than outwardly virtuous or self-sacrificing. To be “interested” was to have an agenda other than the promotion of the public good, and to worse yet be a member of an organized party or faction was to tacitly admit that the public good was itself perhaps less important than jockeying for power or advantage. Because the Founders endeavored to create, in the various states and at the national level, governments whose primary function was the protection of individual rights and the betterment of society as a whole, the existence of entrenched parties – viewed as inherent disruptive – was never factored into their designs. Madison’s assertion in Federalist No. 51, that the abiding diversity of opinion in the United States would be enough to prevent any one sect or interest from rising to a position of power, speaks to this very assumption. He did not consider the possibility that people would rally around something other than their faith, their regional identity, or their profession, or that the factions they formed could expand to the point of exerting a tremendous influence on the national political agenda. This, of course, is exactly what modern political parties are, and this is exactly what they do.

            Ethnic identity is a marker of political self-identification that, if it moves at all, moves at a glacial pace. People think of themselves as Black, White, Hispanic, Chinese, Arab, or Austronesian (for instance) based mainly on who the parents were, what language they speak, and the culture they identify with. Religious faith, while in many cases a matter of personal choice, is also a relatively static political identifier because established belief systems tend to evolve very slowly, over decades if not centuries. Party identification is conversely flexible, fluid, and highly porous. Established parties are often centrally-led, coalesce around specific issues, actively try to expand their electoral support, and undergo constant change. Being a Democrat, consequently, is not like being Hispanic. There is no Hispanic National Committee that controls membership, defines a central platform, engages in public relations exercises, and tries always to get more people to be Hispanic. There are, however, Democratic and Republican national committees that do all of these things. And the fundamental goal of both of these parties, whether they have stated as much or not, seems to be the eventual and complete domination of American political life. Democrats would like it if everyone was a Democrat, and Republicans would like it if everyone was a Republican. In pursuit of this goal, American political parties – including 19th century Whigs, Democratic-Republicans, Federalists, Know-Nothings, et al. – take every opportunity to build majorities around divisive, often morally-charged, issues. From the French Revolution to slavery to same-sex marriage, partisan politics in the United States have almost always used the most contentious terms to build the broadest possible consensus.

            The struggles of generations of party faithful, and the alarmist, epithet-slinging, pot-banging politics that accompanied them, are a large part of the reason why the promise of America has been denied time and again to unoffending and inoffensive minorities within the general population. The United States Constitution, though designed with many an ingenious and time-tested safeguard in mind, was not constructed with political parties in mind. As a result, they have to some degree subverted the expectations and intentions of the Founders and the Framers by creating a new axis upon which American politics pivots. Not culture, not language, not faith, and not vocation, they are a kind of tribal identification that constantly and quickly shifts from one moment to the next. Madison did not foresee this, as No. 51 makes clear. He believed, peering out at the world through the lens of the late 18th century, that the size and diversity of the United States would prevent the political rise of any one sect or faction. Doubtless he also believed that as the country expanded the accompanying growth in population and the distances involved would only maintain and increase that diversity – after all, what could a farmer in Massachusetts possible have in common with a merchant on the California coast?

The emergence of parties – parties that are constantly trying to reach for the largest slice of the American population – have of course elided this diversity and united large groups of people around the same core sets of issues. Advances in communications technology have greatly accelerated this trend, to the point that people in Maine, and Alaska, and Florida, and California have been made to understand that they do indeed have a great deal in common. To say whether this is a good thing or bad thing is to attempt to judge objectively what it by its very nature subjective. Political parties exist in America. They are. The Founders, that handful of demi-gods whose words and deeds are ever a source of wisdom/validation in matters public and private, utterly failed to account for their existence, as Federalist No. 51 helps illustrate. Does this matter? Are parties, therefore, illegitimate? Again, these are not question that have simple answers. What is clear, however, and ought to be remembered and repeated, is that there are many things about what the United States has become that it creators could not, and did not, predict. They were wise and intelligent men and women, and a great deal can still be learned from the legacy they left behind, but oracles they were not. Self-aware enough to understand this about themselves, they accordingly did their best to design systems and frameworks of government that would allow subsequent generations to decide for themselves the nature and meaning of the grand experiment that is the United States of America.

But please, really, judge for yourself:

https://en.wikisource.org/wiki/The_Federalist_(Dawson)/50

Friday, September 2, 2016

Federalist No. 51, Part IV: Lessons & Limitations

            Studying the American Founders has for a long time been a remarkably relevant endeavor. Few countries actively maintain the fervent, at-times visceral connection to their origins the United States of America seems to revel in, and understanding exactly who created the nation that has stood at the pinnacle of global power for the last seventy years is a course of study that capably repays the effort put into it. The words and intentions of George Washington, Thomas Jefferson, and James Madison are referred to constantly in the halls of power and punditry alike, and comparisons are ever being drawn between the United States as it exists today and the nation that those hallowed few helped create. Being able to take part in this discussion can be incredibly enriching – the Founders were, after all, an exceedingly intelligent and insightful group of people. That said, it is also incumbent upon every student of the American Founding, amateur or otherwise, to try to cultivate a nuanced understanding of the subject at hand. The Founders said a great many things from which a 21st century observer can draw inspiration – about the purpose of government, the logic behind certain power structures, and the importance of literacy, reason, and vigilance in a republic – but they were far less capable of accurately foreseeing the future than many of their admirers would care to admit. They were human beings – if exceptionally gifted examples of the species – and there were accordingly certain eventualities they were simply incapable of accounting for.  

            James Madison is no different in this regard. His Federalist No. 51 remains, almost two hundred thirty years after it was written, a tremendously cogent explanation of checks and balances republicanism and the practical limitations inherent in creating a large, complex government. In addition, some of the contrasts between certain elements of the federal government he was attempting to promote and their modern iterations – the way Madison viewed the Presidency is somewhat at odds with the office as it exists today – provide fascinating insight into the late 18th century conception of the United States of America. That being said, other of the arguments Madison put forward in No. 51 cannot help but seem rather naïve by 21st century standards. The country that Madison and his cohorts at the Philadelphia Convention attempted to draft a framework of government for was small (territorially, and in terms of population), rural, and decentralized, and it was inevitable that as it expanded and matured its needs and the pressures placed on its public institutions would change. The Framers were eminently aware of this, and did as best they could to create a set of flexible structures into which subsequent generation of Americans could manifest their particular intentions and desires.

Even so, there were certain social and political transformations they were ill-equipped to anticipate, and as a result some quantity of their insight into the needs of the nation they were attempting to govern has since been disproven or disqualified. Federalist No. 51 preserves such a misapprehension, no less worthy of examination for its obvious fallacy. Indeed, understanding how and why someone as preternaturally intelligent as James Madison could have failed to predict the course of American political history is every bit as valuable as imbibing the wisdom he so often dispensed. Because the Founders were such an exceptional group of thinkers, and because their words have been quoted and referred to so frequently by generations of Americans, it can be all too easy to think of them as infallible. The phrase “what the Founders intended” comes up so often in the public discourse of the United States that an outside observer can be forgiven for concluding that these semi-mythic originators must have been some species of demi-god who created a perfect system of government that was subsequently handed it down to their flawed, contentious, and oh-so-mortal offspring. This is, of course, not the case. The Founders made mistakes, and quarrelled with each other, and they were partisan, and petty, and short-sighted. Confined by the intellectual context of the 18th century, they failed to predict a great deal about what the United States would become. Bearing this in mind is exceedingly important when studying the circumstances of and participants in the American Founding, lest a modern reader of Jefferson or Hamilton fail to scrutinize what they are being told and come away with a understanding that is particularly toxic to the overall public good. 
        
            Bearing that in mind, much of what Madison had to say in Federalist No. 51 does continue to be of great potential use. Though it ought to be a durable maxim that not all questions of a political which arise in the United States ought to be viewed through the lens of the 18th century, it can occasionally be useful to compare what has become tradition and custom in American government to what the creators of that government originally intended. Take, for instance, the balance of power as it exists today (May 23rd, 2016) between the Congress of the United States and the President thereof. Both of these entities possess foreign and domestic policy agendas and both wield significant power in each of these arenas. Occasionally (more often in some eras than in others), a disagreement or difference of priorities leads them into conflict with one another, and thanks to the means they each have at their disposal the result is quite often a stalemate. In spite of this fact, the President is generally considered the more powerful of the two while the nominal leader of the legislative branch (the Speaker of the House of Representatives) remains a comparatively obscure figure. Without in any way referring to the way things “should be,” or making any statement as to who intended what as if it was the last word on the subject, it perhaps bears reflection that one of the fathers of the Constitution, James Madison, nurtured an altogether different conception as to the nature of the abovementioned relationship.

            “In a republican Government,” Madison wrote in the sixth paragraph of Federalist No. 51, “The Legislative authority necessarily predominates.” The state governments that then existed – excepting Massachusetts and New York – obeyed this axiom by delegating far more responsibility to their legislatures than their executives. Madison perceived this balance of authority as being distinctly flawed – legislatures, in his opinion, were as capable of corruption and excess as any governor or president – and the federal constitution he and his colleagues in Philadelphia designed in the summer of 1787 accordingly mandated a far more equitable distribution of power. That being said, and recalling the passage quoted above, the 18th century conception of a republic was prejudiced in favor of a strong legislature. If the United States of America was to operate within a truly republican framework, as most Americans in the post-independence era demanded it should, it followed that the same would then be true of the federal Congress. Madison was evidently of this opinion, as No. 51 indicates, and argued in favor of several specific measures which he hoped would diminish the strength of the federal legislature and prevent it from dominating the national government.

            Congress could be sufficiently weakened vis-à-vis the executive branch of the federal government, Madison asserted, by first dividing the former into two different bodies. Like the upper and lower houses of many existing state legislatures, the House of Representatives and the Senate would each be required to pass judgement on bills proposed from within their own membership before they could become the law of the land. Unlike these same state legislatures, however, the House and the Senate would be chosen by and conform to, “Different modes of election, and different principles of action, as little connected with each other, as the nature of their common functions, and their common dependence on society, will admit.” Whereas the upper houses in most states were chosen either on the same basis as the lower house (by popular election) or by the lower house itself, the membership of the Senate was to be determined by the legislatures of the states therein represented. As a result, the Senate would be more likely to embody the interests of the individual state governments while the House would speak for the general population of the United States. This, Madison argued, would help to ensure that the upper and lower houses of Congress would nurture different sets of priorities and place them frequently at odds with one another, thus preventing the legislative branch of the national government from possessing the requisite stability or solidarity to overshadow either the executive or the judiciary.

            Fearing that dividing the power of Congress would not be enough to blunt its ability to dominate the federal government, Madison further explained in No. 51, the Framers of the proposed constitution also determined to allow the presidency the use of a veto on all legislative acts and established certain structural connections between the executive branch and the Senate. “As the weight of the Legislative authority requires that it should be divided,” he wrote of the former provision, “The weakness of the Executive may require, on the other hand, that it should be fortified.” Weak state governors had been incapable in the 1780s of stymieing legislative efforts to forgive debts and print large quantities of paper money that quickly lost its value. The American economy had accordingly suffered through a post-independence downturn, and Madison seemed particularly keen to prevent this kind of runaway populism from finding its way onto the national political stage. Armed with a veto, a President could act to prevent the passage of laws they deemed harmful to those not represented by a majority in Congress – notably including individuals who held public and private debts and nurtured a reasonable expectation of being repaid.

Tying the upper house of Congress to the executive branch – making the Senate responsible for confirming executive appointments – was also intended by the Framers to create a more balanced distribution of power within the proposed national government. So long as the Senate had some stake in the day-to-day function of the federal executive, Madison explained, its members would be less inclined to intrude upon the prerogatives of the President and his chosen ministers. Having exercised their discretion in the selection of executive department heads, it was hoped that Senators would rise to their defence in the event that their counterparts in the House attempted to disempower or disregard the same. After all, the power to approve who directed the nation’s finances or its diplomatic priorities represented a significant responsibility, and one which the Senate would be loath to see invalidated once put to use. This would necessarily introduce a further cause for conflict between the two branches of Congress, make unity of purpose between them less likely, and allow the executive to fulfill its responsibilities unimpeded by unwarranted legislative oversight.  

In light of these various provisions and the manner by which Madison accounted for them in 1788, several facts are worth noting about the way the government of the United States functions in the present era. Following the ratification of the 17th Amendment in 1913, United States Senators are no longer selected by the legislatures of the states they represent in Congress. Instead, they are popularly elected on a statewide basis with mid-term vacancies filled by the appropriate state governor. While this change was intended at the time of its proposal and implementation to address the perceived corruption and inefficiency inherent in allowing state legislatures to select Senators – state assemblies were understood as being easier for special interests to sway than Congress and prone to deadlock during Senate elections – the result has necessarily been an alteration of the balance of power in the federal government. Whereas the Senate was originally intended to act as a counter to the House of Representatives, in part by giving the state governments a voice in the affairs of the federal government, this has arguably ceased to be the case.

Though the upper and lower houses of Congress still possess different powers and responsibilities, they are no longer, as Madison described in No. 51, “As little connected with each other as the nature of their common functions […] will admit.” Released from any connection to the fluctuations of state politics by the implementation of popular elections, the Senate has become wholly a part of the federal government. Rather than check the power or the prerogatives of the House, it has become far more likely to ally with it in pursuing a shared legislative agenda. This often comes at the behest of the executive branch, whose connection to the Senate via its power of appointment has increasingly become cause for conflict. Meanwhile the states, held up by Madison in No. 51 as another check on the power of the national government, have lost the structural mechanism originally intended to allow them input into federal decision making and have been forced to seek alternative means of exerting their influence. Whether this altered status quo had been harmful or beneficial to the overall health of American republicanism is a matter of debate.

As Madison and his collaborators envisioned it, explicitly tying the composition of the Senate to the state governments provided the latter with an ingrained safeguard against an abuse of federal power and ensured that Congress would have a harder time combining against the executive branch. Since the passage of the 17th Amendment, however, the Senate and the House have been increasingly united in their overall priorities – both tend to see themselves as part of national legislature concerned with national issues – and since the 1930s both have served to further empower the federal government at the behest of the states. There is no sense in denying that changes to the Constitution like the 17th Amendment came as the result of challenges or flaws the existing federal charter appeared incapable of surmounting. As the needs of the American people have changed, Madison would doubtless have agreed, it is altogether appropriate that the nature of their government has changed as well. That being said, examining the reasoning deployed in Federalist No. 51 for the pre-1913 federal power dynamic may reasonably lead one to question whether or not something has been lost by altering the formula the Framers originally devised. The balance that Madison championed in 1788 was a delicate one, and though it eventually gave way to a wave of populist reform – at a time when populist reform was notably in fashion – its utility may yet bear further analysis.

Also worth noting are the ways Madison’s cherished executive veto has been utilized since the ratification of the Constitution. Or perhaps “cherished” is too strong a word. As he made clear in No. 51, an executive veto was not a fool-proof proposition. At times, “It might not be exerted with the requisite firmness; and on extraordinary occasions, it might be perfidiously abused.” The fact that Madison still endorsed the existence of an executive veto in spite of his ambivalent feelings towards it would seem to indicate, however, that he and his cohorts in Philadelphia were convinced that the presidency would have been too vulnerable without one. A perusal of American presidential statistics would seem to corroborate this sense of delicacy; presidents in the 18th century and throughout most of the 19th century tended to be very judicious with their veto power. Between George Washington’s election in 1789 and the death of Abraham Lincoln in 1865, Franklin Pierce (in office between 1853 and 1857) was the most generous at nine, Madison himself (1809-1817) made use of five, and several presidents, including John Adams (1797-1801), Thomas Jefferson (1801-1809) and John Quincy Adams (1825-1829) didn’t negate a single piece of federal legislation. As this era roughly corresponds to a period of legislative dominance in American federal politics, Madison’s characterization in Federalist No. 51 would seem to have been born out. The presidency was weak, Congress was strong, and the executive veto acted as an occasional counterbalance.   

By way of comparison, Grover Cleveland (1885-1889 and 1893-1897) vetoed three hundred forty-six pieces of federal legislation, while Harry S. Truman (1945-1953), delivered one hundred eighty. Indeed, since the 1890s presidents have regularly racked up double digit veto numbers, with Warren Harding (1921-1923) coming in at the bottom of the ranking with a slim five. Paradoxically, this increased usage of the executive veto, intended to allow weak presidents to stave off legislative dominance, seems to parallel the rising power of the executive branch witnessed since the end of the Civil War (1861-1864). Rather than act as a tool to balance the scales of federal power, the veto has increasingly come to represent the at-times overbearing authority modern American presidents are capable of bringing to bear upon the affairs of the nation. In this sense, Franklin Roosevelt’s record seems particularly instructive. He served in office longer than any president before or since, greatly enlarged the scope of federal authority, and suffered having only nine of his three hundred seventy-two vetoes overridden by Congress. In other words, he successfully negated three hundred sixty-three bills passed by the Senate and the House – together a theoretically co-equal branch of government – between 1933 and 1945. To the likes of Madison, Jefferson, and Washington this would likely have appeared an unconscionable abuse of a constitutional power intended to prevent rather than facilitate the dominance of any one branch of the federal government. Obviously, a great deal has changed since the 1780s. Americans have come to expect different things of their government as their social and cultural priorities have shifted. That being said, reading Madison’s measured explanation of the executive veto in Federalist No. 51 calls into sharp relief – for better or worse – the difference between what the Government of the United States was designed to do and what it is now expected to do.