Centinel I, Part VIII: The Sense of the People at Large

By way of offering a last few parting thoughts before concluding the present series and moving along to some other subject, I would like to ask my inexhaustibly patient readers – whom I quite possibly fool myself I haven’t driven away entirely – to accompany me in a brief, final examination of one last aspect of Samuel Bryan’s Centinel I. Specifically, I would like to turn the attention of the present program to the various ways in which the aforementioned author sought directly to question the practicality of certain provisions and structures within the proposed constitution. As previously discussed, the author of Centinel I tended towards a very grounded style of argument, often confronting a theory with which he disagreed with facts that seemed to disprove it. Recall, to that end, the concept of the extended republic as it applies to the enlarged scope of federal power envisioned by the proposed constitution and Bryan’s counterargument concerning contemporary state secessionism. This kind of approach did not constitute his only mode of argument, however. In some cases, when confronting a given theoretical principle, Bryan instead simply drew attention to the plain truth that the validity of the same had yet to be proven. While this might seem on its face a fairly obvious approach, it is nevertheless a very useful one in the context of public policy. Innovation is, and always will be, a very valuable quality in public administration. Precedent, on its own, can be needlessly stifling, and is best tempered by the admission that sometimes the best idea is the one that hasn’t been thought of yet. But properly embracing innovation within the context of government – in which even minor changes stand to affect the lives of hundreds, or thousands, or millions of people – requires the officers and the constituents thereof to ask hard question of themselves and each other. Indeed, at the same time that it asks them to hope for the best, it simultaneously demands that they consider the worst.

            Considering the worst, as it happened, was something Samuel Bryan appeared to excel at. Unimpressed by ambition and unmoved by fame, he questioned a great deal of what the supporters of the proposed constitution attempted to present to their countrymen in the final months of 1787. Who were these men, he asked, that drafted an entirely new plan of government for America? What difference did it make of some of them were popular and beloved? And for that matter, why should Americans consent to enlarge the sphere of national power when certain of the states themselves were dealing with secession movements caused by political centralization? Certainly this was not a method intended to sway men by feats of rhetorical imagination, but under the circumstances it nonetheless represented a very useful way of thinking. The powers being discussed, to be wielded by a national government more competent in its own right than any which had come before, were too significant not to question their every aspect, from how they were arrived at to the needs they sought to address. The architects and supporters of the same, of course, had a great many theories at hand which ostensibly addressed these inquiries. A government which balanced equal centers of power against each other, they said, would guard itself from the domination of a single party or interest. The responsibility of the Senate to approve treaties and executive appointments, they said, would allow the individual states to exert substantial influence directly upon the administration of the sitting president. And what possible danger, they added, could the proposed federal government present to the states when both derived their authority from the same source, the American people? Reasonable though these explanations no doubt sounded – and sincere though the intentions of those who offered them no doubt were – they were nonetheless little more than hypothetical models which experience had yet to prove or disprove. Bryan attempted to point this out to his countrymen throughout the text of Centinel I, sometimes pointedly, sometimes subtly, but always with effect.

            Consider, to that end, the point which Bryan attempted to raise in the sixteenth paragraph of the aforementioned essay concerning a particular clause of the proposed constitution and the effect he believed it was bound to exert – indeed, was intended to exert – upon the individual states. The passage in question, which Centinel I quoted in full, was located in Article VI, and stated with admirable plainness that,

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.     

The logic of this provision, as offered by Framers and ardent supporters of the proposed constitution Alexander Hamilton (1757-1804) and James Madison (1751-1836), was essentially twofold. On one hand, Hamilton asserted in Federalist No. 33, the supremacy of the union of states over any single state was fundamental to the very existence and purpose of that union. The delegates to the Constitutional Convention did not convene in Philadelphia and labor for five months for the purpose of creating yet another national government incapable of compelling the individual American republics to abide by its authority. Not only would that have been a wholly senseless endeavor, but it would have defied the very nature of political association. “If individuals enter into a state of society,” Hamilton posited accordingly,

The laws of that society must be the supreme regulator of their conduct. If a number of political societies enter into a larger political society, the laws which the latter may enact, pursuant to the powers entrusted to it by its constitution, must necessarily be supreme over those societies, and the individuals of whom they are composed.

The “Supremacy Clause,” therefore – as the cited passage has since become known – was both necessary for the proposed constitution to have any effect at all and a wholly logical outgrowth of the theory of the social contract. If the states were going to derive any benefit from the existence of a political union, they would necessarily be required to cede some portion of their sovereign authority and abide by the ends to which that same authority was subsequently deployed. The American people were already required to do exactly that within the states, and it evidently made little sense to Hamilton for states to be expected to do any less within the union.   

            And on the other hand, Madison clarified in Federalist No. 44, there was the question of sovereignty. Faced with criticisms of the proposed constitution which centered mainly on the extent to which the states were bound to be diminished at the expense of an empowered national government, the future author of the Bill of Rights sought to clarify rather emphatically that the welfare of the American people should by rights have been the only consideration of any attempt at collective public action. The states, he elaborated, did not exist to be protected from the encroachment of a theoretical superior power. The Revolution had not been waged for that purpose, “The precious blood of thousands spilt, and the hard-earned substance of millions lavished [.]” The continued existence of the various American states depended on their ability to protect and promote the peace, liberty, and safety of those dwelling within them, and nothing more. If it pleased the people to alter or do away with the relevant governments, there could be no argument that they possessed the right to do so, the states possessing no sovereignty which their citizens did not cede them in turn. Just so, if it the inhabitants of the various states came to the conclusion that the creation of a more powerful national government was necessary to their continued happiness and prosperity, there could be no argument that the integrity of the states need in any way be considered. Sovereignty fundamentally resided with the people, to use and direct as they say fit. Consequent to this, Madison went on to affirm, it ought to have been remembered by any who would claim that the states would be improperly impaired by the relevant clause of the proposed constitution that, “The public good, the real welfare of the great body of the People, is the supreme object to be pursued; and […] no form of Government whatever has any other value, than as it may be fitted for the attainment of this object.”

            The relevant commentary which Samuel Bryan offered upon the same subject in the cited passage of Centinel I, it must be said, did not address either of these explanations for the existence or the purpose of the aforementioned Supremacy Clause. To be fair, this may simply have been a matter of chronology. Hamilton’s Federalist No. 33 and Madison’s Federalist No. 44 were both published in January, 1788, two months after the first printing of Bryan’s Centinel I in November, 1787. Nevertheless, the thrust of the response which he did offer begs the question whether he’d have cared to address the relevant Federalist assertions if he’d been given the chance. His approach to the Supremacy Clause did not so much as approach the theoretical justifications which Hamilton and Madison later offered, seeming instead to focus on what Bryan believed to be its likely effects and the true intention of its authors. “By these sections,” he avowed, referring specifically to the cited passage from Article VI,

The all-prevailing power of taxation, and such extensive legislative and judicial powers are vested in the general government, as must in their operation, necessarily absorb the state legislatures and judicatories; and that such was in the contemplation of the framers of it, will appear from the provision made for such event, in another part of it; (but that, fearful of alarming the people by so great an innovation, they have suffered the forms of the separate governments to remain, as a blind.)

Theory, it seemed, did not interest Bryan nearly so much as outcome. Paying no heed to whatever principle may or may not have undergirded the existence of the Supremacy Clause, he instead sought to call attention to what he believed would be the most likely effect of its adoption.

The states, Bryan reckoned, were bound to be completely nullified as political entities if the federal government described by the proposed constitution was permitted to claim that its laws and its directives were superior. No law their legislatures might endeavor to pass, and no ruling their courts might attempt to hand down, would be safe from eventual invalidation on the whim of whatever party controlled the organs of national power. Faced with this stark reality, what possible purpose could the states legitimately claim for themselves? By what right might they assert their continued existence? To Bryan’s thinking, it seemed there could be no answer which would come close to satisfying the devotees and supporters of the individual American republics. These entities were vested with the sovereignty of their citizens, had defended their liberties against the tyrannical ambitions of Parliament and the Crown, and were now to be reduced to little more than powerless relics of an era in American history whose primacy had since been eclipsed. What other explanation could there be? The only purpose which the Supremacy Clause could possibly serve, Bryan asserted, was to facilitate the consolidation of all legislative and judicial power in the United States of America in a single, centralized national government. The Philadelphia Convention had not ostensibly been convened for this reason, of course, and the proposed constitution did not otherwise claim such an outcome as its primary function. But there could be no mistaking the implications of the text of Article VI.

For that matter, Bryan added, there could be no mistaking the intentions of its authors. With complete and total centralization clearly in mind, they could only have left the states outwardly intact “as a blind” intended to lull the people into a false sense of security. The duplicity inherent to this approach was further supported by what Bryan claimed to be the parallel implication of Article I, Section 4. “The Times, Places and Manner of holding Elections for Senators and Representatives,” the passage in question states, “Shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.” There being no obvious or stated reason why Congress would ever need to regulate these kinds of elections, Bryan accordingly concluded that the intention of the Framers must have been to ensure, “When the state legislatures drop out of sight, from the necessary operation [of] this government, [that] Congress [will be] able to provide for the election and appointment of representatives and senators.” The cause of Bryan’s suspicion, it seemed, was the quiet way in which these provision had been inserted amongst other more outwardly benign ones. The states were not to be done away with entirely, their forms and traditions being for the meantime preserved. But a figurative Sword of Damocles was to be raised above their heads, in the form of the national government’s latent ability to undo every law and every directive they might think to pursue, and to pick up the slack when the inevitable transpired. That this was being pursued at all was doubtless cause enough for Bryan to raise his voice in protest. But that it was being done via subterfuge? That the sovereign rights of the American people were being violated by an assembly of their countrymen under their very noses? Surely the author of Centinel I could have imagined few more legitimate sources of moral outrage.

In point of fact, notwithstanding certain proposals forwarded by the aforementioned Alexander Hamilton over the course of the Philadelphia Convention debates – which would have, among other things, established a Senate that served for life upon election and mandated the federal appointment of state governors – the overwhelming majority of the delegates responsible for the final draft of the proposed constitution showed themselves to be exceptionally sensitive of the sovereignty and the authority of the governments that had sent them. It was necessary, of course, for the states to show some degree of deference to the national government lest the central weakness of the Articles of Confederation continue to hamper the fortunes of the nascent American republic. But at no point did the Framers ever demonstrate a collective inclination towards abolishing or even substantially weakening the powers of the individual states. Indeed, quite the opposite was true. In addition to rejecting out of hand Hamilton’s aforementioned plan for the federal appointment of state executives, the assembled delegates placed the states at the very center of their discussions about the structure of the Constitution and the distribution of power within the government it described. The reason, for instance, that the United States Congress is bicameral rather than unicameral, or that its two houses are elected by different means, is because different groups of Framers had different ideas about how power within the federal government should have been distributed among the states. The crux of the resulting disagreement, it turned out, had everything to do with size.

At the time that the various delegates to the Philadelphia Convention assembled in the autumn of 1787, the central distinction between the thirteen American states did not yet pivot upon whether they recognized the institution of slavery or prohibited it. This would most definitely become the defining feature of the century to come, but as yet most every state, North and South, made legal allowance for the ownership of human chattel. Rather, what separated the states in the late 1780s – and formed them into what at times amounted to two mutually antagonistic camps – was their relative size. States like Virginia, Pennsylvania, and New York possessed large populations and powerful economies, and had historically harbored significant territorial ambitions in what was then the unsettled – though still very much populated – Midwest. The Articles of Confederation had stymied their ambitions by mandating equal representation in Congress for every state, and it was their hope that a new framework of government would allow them to claim their rightful place – based on the fact that they contained the greatest share of the American population between them – as the principle drivers of the nascent American republic’s foreign and domestic policy. By comparison, states like Connecticut, New Hampshire, New Jersey, and Maryland were very small in terms of population and economic significance. The Articles of Confederation had served them well by permitting them the same weight in Congress as their larger counterparts, and it was the intention of their representatives in Philadelphia to preserve this state of affairs under any new form of government.

The resulting debates produced a number of proposals embodying each of these positions or some variation thereof. The Virginia Plan, for instance – named for its origin in the Virginia delegation – described a bicameral legislature whose two houses would both be allocated proportionally. The lower house was to be chosen by the general electorate, the upper house by the lower house, and the chief executive by some combination of the two. While this arrangement met with the general approbation of the large state delegates, it was understandably rejected by those who had been chosen to represent the aforementioned small states. Fearing that the interests of their respective communities would be completely overwhelming within a system that gave such clear advantage to population, these delegates instead came out in favor of the countervailing New Jersey Plan. Introduced by delegate William Patterson (1745-1806), this framework skewed much nearer to the existing arrangement under the Articles of Confederation. Congress was to remain unicameral, states were to possess a single vote each, and representatives were to be chosen by the various state legislatures. Though it ultimately failed to garner enough support among advocates of the Virginia Plan to replace it as the basis of further debate, the New Jersey Plan arguably did succeed in shifting the focus of its supporters going forward. Faced with the increasingly inarguable reality that the product of the Philadelphia Convention would differ significantly from the Articles of Confederation, small state delegates accordingly set themselves to the task of forging some manner of compromise that would preserve as much of what they valued about the Articles as possible. The aforementioned Hamilton Plan – under which the state governments would exercise almost no influence on national affairs – quite possibly served the same purpose for the supporters of the Virginia Plan, being so thoroughly centralizing that it may have shocked then into reconsidering the relationship they envisioned between the state governments and the national government.

Connecticut’s Roger Sherman (1721-1793) ultimately broke the logjam by offering a compromise proposal whose basic framework formed the spine upon which the United States Constitution was subsequently built. Seeking to ameliorate the concerns of both large state delegates and small state delegates – and being himself from a small state – Sherman combined the bicameralism and the proportional representation of the Virginia Plan with the uniform representation and state appointment of the New Jersey Plan into a blueprint which recognized population advantage without allowing it to become the only source of power within the proposed national government. Representatives in the lower house of Congress were to be seated according to the population of their state – to the advantage of New York, Pennsylvania, and Virginia – while representatives in the upper house would be apportioned equally per state at the behest of the relevant legislatures – to the relief of New Hampshire, Maryland, and their similarly diminutive counterparts. Further additions to the plan – exclusive power over the introduction of financial legislation in the lower house, exceptionally long terms in office for members of the upper house – helped to ensure that large states and small states alike could derive some exclusive advantage from abiding by the arrangement and accordingly secured its endorsement by the majority of the assembled delegates.

Granting that subsequent developments in American political culture ultimately led to the development of factions, alignments, and, eventually, party organization that cut across state interests in favor of ideological principles or basic policy goals, the developments noted above hopefully serve to make it exceptionally clear that the lens through which the essential structure of the United States Government were first envisioned in 1787 was decidedly dominated by the existence of the states themselves. While a significant number of the delegates assembled in Philadelphia had come to assign some value to truly national institutions through having served in the Continental Army, state government remained the default context within which the majority of those selfsame envoys had grown accustomed to conceiving of political power and political institutions. For representatives of the smaller states, this tendency manifested in their devotion to the idea that the individual states should remain at the center of whatever model of national government was ultimately adopted. Lacking the popular or economic advantages of their larger counterparts, they accordingly sought refuge from functional irrelevance in the preservation of the states as meaningful political entities within a distinctly federal administrative framework. While this might appear to have been little more than a tactical decision – and perhaps indeed it was – the evident impulse behind it would seem anything but.

If the delegates to the Philadelphia Convention dispatched by Georgia, New Hampshire, and Delaware (among others) had been as intent on the elimination of the individual states as Samuel Bryan asserted they and their colleagues were in the text of Centinel I, they should not have raised any objection at all to the adoption and promotion of the initial Virginia Plan. So what if the larger states enjoyed a much greater share of influence in Congress? The small states would elect representatives as well, if fewer, who would in turn be free to conspire with any number of their compatriots to rob the American people of the liberty for which they had lately fought and suffered. The inability of New Jersey to speak effectively for itself in national council would appear to matter very little if this was truly what the convention delegates were after. The fact that the small state delegates did not give way to the Virginia Plan immediately is proof enough that it was not. The existence of the states mattered to the New Jersey delegates, the New Hampshire delegates, and the Maryland delegates. These men came from different places, spoke for and from different sets of interests and experiences, and were demonstrably disinclined to have the needs of their particular communities subsumed within those of any nationwide party or interest.

  At the same time, if the large state delegates were the ones who stood to benefit from a radically empowered national government, they should not have had any cause to reject the Hamilton Plan or its implications. Whether the national government appointed state governors or not, whether Senators served for life or not, the people of Pennsylvania, Virginia, and New York would between them have enjoyed majority representation in Congress and subsequent control over federal spending priorities. More to the point, the people of a certain class within these states would have been able to enhance their access to institutional power while weakening potential roadblocks – i.e. the state governments – to their eventual assumption of complete legislative and executive authority. In spite of the allure which this outcome would seem to have held, however, the Hamilton Plan was rejected almost immediately as it was offered. Why should this have been the case? Why, if what Bryan claimed was true, should any of the assembled delegates have rejected the chance to drastically weaken the states at the expense of a greatly empowered national government whose leadership would have fallen almost certainly to them? The answer, as records made by participants like James Madison show, is a fairly simple one. Contrary to Bryan’s aforementioned claim – that the Framers chose to leave the states mostly intact so as not to draw attention to their efforts to otherwise weaken those same entities – even the delegates who supported the adoption of the Virginia Plan, and accordingly favored population over state sovereignty as a means of allocating power, balked at the notion of undermining the states to the point of irrelevance.

Madison’s Notes of Debates in the Federal Convention of 1787, by which the daily goings-on of that body were recorded and published, accordingly relates that Hamilton’s plan was introduced on June 18^th, 1787 along with introductory and explanatory remarks, that the assembled delegates rose and adjourned after the presentation was made, and that nothing more was said of the idea for the remainder of the Philadelphia Convention. The introduction of the Virginia Plan on May 29^th by comparison resulted in several weeks of intense debate until the counterproposal of the New Jersey Plan was made on June 15^th. This in turn prompted three further days of direct discussion (June 16^th, 18^th, and 19^th) and went on to influence much of the three months that followed until the final adjournment of the Convention on September 17^th. Recalling that these debates were conducted under a strict veil of secrecy, and that Madison’s records thereof were not published until significantly after the fact, it would accordingly seem rather telling that no more than a single day of the proceedings was turned over to topic of Hamilton’s plan for the proposed national government. The assembled delegates were perfectly free to speak in support of it if they wished, or to debate the merits of certain elements thereof without fear that their intentions might become cause for suspicion among their constituent governments. But they did not. It is, of course, certainly possible that Madison altered his account by omitting such exchanges as he felt would have sowed distrust among his countrymen for him and his fellow Framers. There is no proof for such an assumption, however, any more than there is for Bryan’s cited claim that the architects of the Constitution, “Suffered the forms of the separate governments to remain, as a blind.” As far as the available evidence is concerned, which has since been widely accepted as representing an accurate account of the relevant events, the Hamilton Plan was never seriously considered and the New Jersey Plan had an outsized influence on the character of the debates. Both of these outcomes almost certainly owed to the demonstrable fact that the assembled delegates were at least broadly united in their concern for the continued existence and relevance of the various state governments.

None of this is to say, however, that Samuel Bryan wholly failed to make a useful point in the cited text of Centinel I. Though the aforementioned provision of the United States Constitution reserving to Congress along with the state legislatures the authority to prescribe, “The Times, Places and Manner of holding Elections for Senators and Representatives” was, by Madison’s accounting of the relevant debates, enacted as a check against corruption within the state governments or attempted partisan manipulation, it was most definitely also vulnerable to abuse on the part of the accordingly empowered members of Congress. The Framers who ultimately voted in favor of the same certainly thought that the states were the likeliest source of abuse in this context. “Whenever the State Legislatures had a favorite measure to carry,” Madison hypothesized during the relevant debates, “They would take care so to mould their regulations as to favor the candidates they wished to succeed,” while Gouverneur Morris (1752-1816) posited that, “The States might make false returns, and then make no provisions for new elections.” All the same, there existed no means of guaranteeing that the opposite outcome would not take place. United by a desire to disenfranchise such elements within the states as they felt stood in opposition to a further consolidation of federal power, the membership of Congress could well have used the cited clause to secure their own continued re-election, or to increase the likelihood of likeminded officers being sent to the House and the Senate. The Framers thought this an unlikely outcome, with Madison in particular asserting that the appointment of Senators by the state assemblies would ensure that the state governments were well represented in Congress. But such an assumption on their part once again constituted nothing more or less than a theory. It was what they thought should happen, but not what absolutely would happen. It was this possibility, this uncertainty, to which Bryan necessarily addressed his efforts. Likely or not, intended or not, abuse of the relevant provision was possible.

The Supremacy Clause operated within essentially the same speculative context. While Hamilton and Madison would shortly assert that the legal superiority of the proposed constitution and the statutes approved under its authority was both necessary to the overall success of the venture and logically consistent with established principles of political organization, they would not – indeed, could not – predict what effect this selfsame proviso would actually have in fact. Notwithstanding the evident necessity – or at least the usefulness – of ensuring the consistent application of national authority across the various jurisdictions within the United States, what would the relationship between the states and the federal government ultimately resemble? Would Congress take it upon itself to review every statute passed by the states in order to ensure their conformity with its priorities and designs? What effect might federal supremacy have upon the initiative of state legislators whose work could summarily be struck down or nullified? Did the power allocated to Congress by the relevant article extend so far as to allow the federal government to disregard – or even to effectively rewrite – the constitutions of the states? Hamilton, Madison, and their allies among the Federalists tended to respond to these kinds of inquiries by avowing that the scenarios they described were too outlandish to be all that likely. If a given action taken by Congress did not plainly serve the needs of the American people, there was no reason to believe it was liable to occur. If, on the other hand, said action did serve some need or priority of the American public, then it did not matter by whom it was achieved, only that a government elected by the people had rendered a service unto the people.

Samuel Bryan’s evident issue with this manner of reasoning was that it allowed those with a vested interest in their own power to decide what, in terms of the limit of their authority, was permissible and what was not. Granting that the states would ultimately be responsible for ratifying or rejecting the proposed constitution, and that the states had initially chosen the delegates whose efforts produced that very same document, the national government would exist as a thing unto itself once its various institutions were erected and set in motion. The officers of the national legislature, the chief executive, and the judiciary would be free to decide to what extent they believed their authority reached, the only restriction thereupon being the wording of the Constitution itself. In light of how vaguely certain clauses of the same had been written – quite possibly with the intention of giving as much latitude as possible to future generations – there would seem to have been very few limits indeed upon the actions of the aforementioned national authorities. Bearing this in mind, why would the various members of Congress, or the President, or the justices of the federal judiciary ever reject the opportunity to increase their power if so little appeared to stand in their way? Given the opinions which Samuel Bryan had previously expressed in the text of Centinel I of “the wealthy and ambitious,” and the extent to which he seemed to believe that the Framers of the proposed constitution were those most likely to benefit from its ratification, this was almost certainly a question he hoped the great mass of his countrymen would take the opportunity to thoroughly consider. The prospect which the outcome of the Philadelphia Convention had placed before them – the creation of a powerful, activist central government where a weak and passive one had existed before – constituted a tremendous potential transfer of sovereignty from the people at large to a set of previously non-existent officers and institutions. Under the circumstances, and as Bryan attempted rather emphatically to communicate, some degree of skepticism – if not, indeed, outright suspicion – was most definitely called for.