Jefferson’s First Inaugural Address, Part III: Providence and Principle, contd.

Throughout his First Inaugural Jefferson added further to his list of qualities or values which he felt set America apart. Some of these had to do specifically with elements of the nation’s political culture. In the second paragraph he praised his countrymen’s tolerance for error and their faith in reason. “If there be any among us,” he wrote, “who would wish to dissolve this Union of to change its republican form, let them stand undisturbed as monuments to the safety with which error of opinion may be tolerated where reason is left free to combat it.” This statement seems to be a response to several different ideas. First, it was arguably an acknowledgement of a practical reality. Few governments in the early 19^th-century world (that Jefferson was aware of) valued freedom of speech and expression as much as the United States did, or enshrined it as a root value in their constitutions. Jefferson was rightly proud of this fact, and wished to countrymen to feel the same. At the same time he was perhaps reiterating another Enlightenment value, the importance of free debate. Jefferson believed that a truly enlightened society resolved internal conflicts via free and open discussion. In such a society, error was not considered dangerous because it would eventually and inevitably be overcome by the truth. Jefferson believed in 1801 that this was true of the United States, and that the fact was worth celebrating. Last it seems possible, if not likely, that Jefferson was attempting a slight jab at the outgoing Adams administration. Threatened by slanders and calls to insurrection, Adams and his Federalist cohorts had drafted the much-reviled Alien and Sedition Acts in the late 1790s. In Jefferson’s eyes this represented a fundamental error on their part; not only had they demonstrated an apparent fear of free debate (perhaps because they knew on some level they that they were wrong), but they violated the rights of any number of American citizens. Though the Federalists had been soundly defeated in 1800, and Jefferson seemed to be in a rather conciliatory temper, I don’t think he was above taking one last parting shot.

Further in the second paragraph of his First Inaugural, Jefferson asserted that the American government was the strongest on earth. While I think this a rather odd thing to say for a man who had not three years earlier criticized that same government for being too powerful, arbitrary and unresponsive, his stated reasoning is quite telling. America, Jefferson argued, was the only country in the world in which the average citizen would, “fly to the standard of the law, and would meet invasions of the public order as his own personal concern.” By the standards of the early 19^th century this was rather strange notion. Few, if any, countries then in existence could have boasted of the same level of civic engagement that Jefferson claimed for his. A baker living in the countryside of France or a miner working in the coalfields of Wales during this same period would likely have cared less for the health of the public order (having to do with government, national finance, or what have you) than for the price or yeast or rates for day-labour in their district. If they couldn't vote or hold office, what concern was it of theirs what went on in the capital, or which ministers had been accused of what abuses? But in the United States every man was concerned with law and government because he knew his rights were vested there. If the Bill of Rights of the United States Constitution was the rock-bottom guarantor of the liberties and freedoms of every American and that same Constitution was somehow overthrown or called into question, did that not concern every citizen equally? In essence, what Jefferson was keen to point out was not necessarily the quality of the United States government or the ingenuity of its balance of power and responsibility, but the high degree of political consciousness that he saw in his fellow Americans. He may indeed have believed that America’s was the strongest government in the world, but only because it was structured in such a way as to awaken and harness the vigilance of the people.

In addition to paying tribute to the many virtues he felt his nation and countrymen possessed, Jefferson also took the opportunity with his First Inaugural to lay out the basic principle which he felt were the most sacred and fundamental to his ideal federal administration. These, listed in paragraph four, included: “A well disciplined militia, our best reliance in peace and for the first moments of war,” “economy in the public expense, so that labor may be lightly burdened,” “the honest payment of our debts and sacred preservation of the public faith,” “encouragement of agriculture, and of commerce as its handmaid,” and “freedom of the press.” It’s also worth noting that Jefferson described these principles as, “the bright constellation which has gone before us and guided out steps through an age of revolution and reformation.” This would seem to be a dense and weighty declaration. But while Jefferson tried to frame his promotion of these ideals as a return to the first principles that had guided the American Revolution from the start, in fact he seems to have instead been attempting to refute and reverse many of the efforts of his Federalist predecessors.

In encouraging a reliance on militias rather than standing armies, for instance, Jefferson was doubtless trying to both assert the primacy of the states over the federal government in military matters at the same time that he aimed a jab at the Federalist’s short-lived provisional army of 1798. This particular force was raised on a provisional basis during a period of intense diplomatic tension with the French Republic in the late 1790s during which France began to attack and seize American merchant vessels. It was vehemently opposed at the time by Jefferson and the Republicans, partially because they feared it might be turned against supposedly disloyal elements of American society, and partially because command of it had been turned over to their avowed enemy, Alexander Hamilton. Believing themselves true adherents to the principles of republicanism, Jefferson and his followers held that because militias were controlled on a state by state basis and could only be called to serve in time of war the potential for their misuse was severely limited when compared to a national army. That the army of 1798 was nominally commanded by a Federalist President, practically led by a Federalist General, and staffed almost exclusively by Federalist officers no doubt added to the Republicans’ anxieties. Fortunately for them the army was disbanded before it could be put to use, and in the years since that time the American people had elected a president who fundamentally opposed the use of a standing military. His statement on the primacy of the militias might thus been seen as an assurance on Jefferson’s part to his supporters and critics alike: there would be no repeat of 1798. 

        By promoting “economy in the public expense,” as well as, “the honest payment of our debts,” Jefferson was no doubt likewise attempting to blend sacred principle and subtle criticism. Believing in the freedom and ingenuity of the individual, Jefferson regarded the tax regime instituted by his rival Hamilton’s Treasury Department as an unnecessary means of exerting federal control over the American citizenry. By collecting taxes on purchased and manufactured goods, the federal government could control what people bought, how much money they had to spend, what kinds of businesses they went into, and essentially how they lived their lives. That these taxes were then used to fund entire federal departments which in turn where used to exert even more control over various aspects of the lives of everyday Americans, only added further insult to injury. “Economy in the public expense,” might thus be thought of as the early 19^th-century equivalent of fiscal responsibility. By cutting back the scale of certain departments and initiatives (like the army, the navy, the national bank, and foreign embassies) Jefferson believed it was possible to run a more efficient government on a smaller budget. This would serve to decrease federal control over a host of policy areas and strengthen the authority of the states, as well as grant the American people greater economic independence. What money the government did collect, mainly from land sales and customs duties, would be put toward paying off the national debt that had been assumed under the Washington Administration.

When Jefferson was sworn in in 1801 the United States owed something on the order of $83 million, between the debts the government had contracted on its own and those it had adopted from the various states. Unlike Hamilton, who had advocated the use of the debt as an extremely powerful funding mechanism, Jefferson believed that continually borrowing money and collecting taxes to service the necessary interest payments was tantamount to institutionalizing corruption and dependence. By failing to ever pay off the debt entirely, and in fact expanding it through the use of a national bank, Jefferson believed that the federal government would essentially be chaining the American people, generation after generation, to an infinite and immovable burden. Holders of treasury bonds and bank stock would benefit greatly, though they performed no useful labour of their own, while citizens less able to afford such luxuries would be forced to pay tax upon tax without any conceivable return. Jefferson believed this policy socially destructive as well as dishonest, in that it led taxpayers to believe that they were aiding the elimination of the debt while it was in reality being increased. An honest fiscal policy, in his mind, would entail only the limited collection of revenue and a genuine attempt by the Treasury Department to pay off the national debt in full. In retrospect this was a tall order, considering the size of the debt and the comparatively minor revenue generated by customs fees, but Jefferson was doubtless feeling triumphant in 1801, and if nothing else was eager to dismantle the Federalist financial regime that he had railed against so futilely in the 1790s.          

The reasons that Jefferson had so opposed Hamilton’s economic program in the 1790s had little changed by 1801. He believed that large-scale banks (like Hamilton’s Bank of the United States) made the creation of factories possible. These factories would employ large numbers of people at relatively low wages, gathering them into cities where they lived cheek to jowl in hastily constructed tenements. Because they did not own their lodgings but rented them, they were thus beholden to or dependent on both their employers and their landlords. At the same time the unhealthy conditions and low wages brought about a general moral decline among the working poor, who spent their money not on improving themselves or their lot but on the prostitution, alcohol, and gambling that cities were all too happy to provide. This is hardly an objective assessment of early-19^th century city life, but it was one Jefferson felt qualified to make. Having been raised in the pastoral west country of Virginia, and having spent significant periods of time in Philadelphia, Richmond, New York and Paris, he doubtless felt qualified to speak of the pros and cons of an urban versus a rural existence. For this reason, and once more to emphasize the Federalists’ defeat, he stated in his First Inaugural that the, “encouragement of agriculture, and of commerce as its handmaid,” was to be one of the key principles of his coming administration. As mentioned previously, Jefferson believed that only by owning land and providing for his own subsistence would a man be free to exercise his own opinions, and would better appreciate and defend the liberty he possessed and the laws that secured it. Commerce was necessary, certainly. Farmers needed markets in which to sell their surplus, and from which to purchase the equipment or luxury goods which they could not manufacture themselves. But in an off itself, and Jefferson believed this quite adamantly, commerce could serve no possible purpose save to increase the wealth of the few and the suffering of the many. While this was not a new position for Jefferson in 1801, it certainly seems an apt one to reiterate as the curtain came down on the Federalists and their political dominance.

In a similar mode, Jefferson made a point of emphasizing his intention as president to respect, “freedom of the press, and freedom of person under the protection of habeas corpus.” Again, these were not novel concepts in the United States at the turn of the 19^th century. The freedom of newspapers and periodicals to publish what they wish had been instrumental to the success of the protesters and later revolutionaries of the 1760s and 1770s. The denunciations, essays, satires and calls for commercial boycotts and large-scale protests had served to rally the common people of the American colonies to the Patriot cause, and arguably helped make the American Revolution possible. Likewise, the right of habeas corpus had been regarded by many educated citizens of the colonies as a fundamental English liberty, and a cherished cultural and legal inheritance that had been guaranteed by the 1689 Bill of Rights. While I doubt very much that the Federalist would have disagreed with the importance Jefferson and the Republicans attached to protecting either of these rights, their actions over the course of the 1790s had opened them up for deserving criticism. The previously-mentioned Alien and Sedition Acts, drafted by a Federalist-dominated Congress and signed into law by a Federalist president, had greatly curtailed freedom of the press in the United States by making it a crime to publicly condemn, ridicule, or otherwise call in question the legitimacy of the federal government. In addition, the statutes gave the President of the United States the authority to summarily order the arrest of suspected resident aliens and have them imprisoned or deported without trial. As Jefferson had attempted to rally the people against these abuses of Federal power in his Kentucky Resolutions of 1798, so too did he draw attention to them in his First Inaugural three years later. The second time, albeit, he proceeded with a deal more subtlety; rather than call out the offences explicitly, he simply reaffirmed his adherence to a set of principles whose importance few would have needed reminding of, but which the Federalists had clearly violated.  

In all, it seems Jefferson was intent in his First Inaugural on affirming the political and physical characteristics which he felt ensured his nation’s immanent prosperity, paying homage to the influence of Providence, and laying out the ideals he envisioned his administration embodying. In accomplishing the last of these three, he also attempted to assure his fellow citizens that the ideals he called out would be scrupulously upheld in spite of past missteps by previous governments, at the same time he sought to tag the Federalists once more for their indiscretions and emphasize that many of their prized policies were about to be undone. All this he managed to accomplish while maintaining a positive, forward-looking, and at times even conciliatory tone.

Not a bad day’s work.

Jefferson’s First Inaugural Address, Part II: Providence and Principle

At only six paragraphs stretching over approximately three pages, Jefferson’s First Inaugural manages to combine economy of expression with seemingly limitless vision. Coming from the scribe most responsible for the Declaration of Independence this should hardly be surprising. The Sage of Monticello has long been known for his eloquence, and his ability to convey to others the grandeur with which he viewed his nation’s potential. Indeed Jefferson’s place in history, his political career aside, is arguably as the wordsmith of the Revolution and the man who almost single-handedly gave birth to the vocabulary of American citizenship. His First Inaugural is very much a part of that effort. With an elegance that still manages to impress, it provided Americans in 1801 with a vision of their country that strove to rise beyond disputes over diplomacy, banking, taxes and censorship. Granted, Jefferson was very much a politician, and his opinions on all of these matters had been frequently expressed in the years leading up to his election as president. But in his mind, and doubtless in the minds of many Republicans, the election of 1800 represented a fundamental turning point in American history that required a corresponding political and cultural reorientation.

The Federalists, up to that point the only faction that had governed the United States, had been defeated (for good, as it turned out). Republicanism had triumphed thanks to the support of the common people, and the time had come to mend fences, unite as a nation and redefine what it was that America stood for. Where the Washington and Adams administrations had concerned themselves with regulating taxation, servicing the national debt, negotiating treaties with foreign powers, and protecting and expanding American commerce, Jefferson and his colleagues believed that the Federal government had a higher calling to serve. The United States, they believed, was a nation that had been blessed by Providence with near-limitless potential. The true end of government was to help the American people realize this potential by offering what protection and resources they could not provide for themselves. While the third part of this series will focus on discussing some of the inconsistencies in this message as Jefferson delivered it, this post will explore what it was that the 3^rd President saw in America in 1801 and how he believed its greatness could be achieved.

Within the first paragraph of his First Inaugural Jefferson provided a very succinct summation of the elements he believed constituted America’s pre-eminence in 1801. The United States were, he wrote, “A rising nation, spread over a wide and fruitful land, traversing all the seas with the rich productions of their industry, engaged in commerce with nations who feel power and forget right, advancing rapidly to destinies beyond the reach of mortal eye.” This is truly a soaring vision, and the choice of terms reveals much about Jefferson’s personal views. By referring to his country as a “rising nation,” he perhaps sought to reaffirm the commonly held belief among his contemporaries that America was the culmination of Western philosophy and civilization, and the inevitable and logical conclusion of the reformist zeal of the Enlightenment. If this sounds grandiose, well, it was. But it’s important to remember that for men like Jefferson who believed very strongly in the lessons of the Enlightenment – natural rights, the universality of mankind, the importance of the search for truth – the fact that the United States seemed to embody those same values was extremely significant. Americans had, they thought, managed to condense almost two centuries of theory about politics and society and into a functioning government. They were understandably proud of themselves. In pointing to the “wide and fruitful land,” Jefferson pointed to what would become another major theme of his form of American nationalism, the importance of the land itself. America’s greatness, he believed, was in part a natural occurrence, a consequence of the land they inhabited and the things it made possible. The destiny of the American people was thus partially providential; whatever choices they made, whatever future they decided on, they owed the opportunities presented them and the resources at hand to fate and geography.  

That Jefferson also singled out the “rich productions of their industry” for praise is somewhat unusual, as he was no great fan of commerce or manufacturing (believing that they had an ultimately corrupting influence). He was, however, a proponent of the principle of free trade, notably championed by Scottish Enlightenment thinker Adam Smith. The later events of his second term as president would prove Jefferson’s dedication to the ideal of free trade among all nations as the key to world peace, and it seems likely that he would have attempted to seed the notion in his First Inaugural. Connected to that is the mention of “nations who feel power and forget right.” Though he believed that trade with foreign powers was necessary for America’s prosperity and the ultimate wellbeing of humanity at large, Jefferson had a rather low opinion of most the foreign regimes that he had encountered in his life and career. As a diplomat in the 1780s he had travelled extensively in Europe and been confronted time and again with governments who cared less for what was right than about maintaining their own power, stability, authority and wealth. The rise of the French Republic in 1793 was doubtless a beacon in the darkness for Jefferson’s idealism, but it too was eventually snuffed out. By 1801 the United States was alone among the republics of the world, and its newly-minted president was acutely aware of the fact.

Still, Jefferson felt there were reasons to be optimistic. As he put it, America was “advancing rapidly” towards a great destiny that neither he nor anyone else could envision or predict - and why not? The United States had managed to summon itself into existence in the 1770s and successfully confront one of the wealthiest and most formidable empires in the world. Subsequently it had dealt with internal rebellions, formulated a written constitution, created a series of complex government departments and apparatuses (including a bank and a national debt), subdued numerous Native American tribes on its western frontier and added three additional states to its number. From the perspective of one who had taken part in many of these events and knew firsthand the odds that were arrayed against their success, what other conclusion could there be than to say that America was destined for great things? While Jefferson may not have believed that certain nations were blessed by God, he certainly adhered to the notion that Providence had its role to play in the rise and fall of civilizations. And as near as he could tell, Providence seemed to be in America’s corner. This he repeated in the third paragraph of his First Inaugural, as he was listing the many aspects of the United States and its people that he believed were fundamental to its future prosperity. Specifically, he wrote that America was blessed to be, “kindly separated by nature and a wide ocean from the exterminating havoc of one quarter of the globe,” and possessed, “a chosen country, with room enough for our descendants to the thousandth and thousandth generation.” These statements speak not only to a philosophical understanding of America’s past and its future, but also to knowledge of contemporary political realities on the world stage.

Since the earliest days of permanent settlement in what would become the United States of America, the communities that migrated there often did so girded by the understanding that they were taking part in an attempt to reform or remake human society in their new surroundings. New England Puritans, Pennsylvania Quakers, Maryland Catholics and the first trustees in colonial Georgia; all believed in some sense that the societies they were setting out to create in North America would succeed in preserving and refining the virtues they held dear by escaping from the conflict and persecution that for them defined the Old World. Connected to this sense of escape was also an appreciation of the size of the land these migrants now inhabited and the possibilities that it offered. There were no feudal landowners to collect rent, no church lands or royal forests; America was a “virgin land,” a vast and untouched canvas upon which they could paint any destiny their imagination could conjure. Whether this was true or not, those early Americans believed it; in a way so too did their descendants. Men of Jefferson’s generation might not have considered the explicit blessing of God to have been bestowed on their specific community, but they were certainly willing to ascribe their fortunate position in the world to an abstract Providence having conferred its favor on the American people at large. Intolerant Europe was far at hand, and with it the kings and emperors who had always stood in the way of the kinds of social reformation the Enlightenment championed. This was not merely the dictate of fortune but of fate, a fact that Jefferson was keen his countrymen appreciate.

At the same time, Jefferson also seemed to be expressing thanks for America’s relative isolation and abundance of territory in light of certain contemporary events. More or less continuously from 1792 to 1815, Europe was convulsed by a series of wars that drew in nearly every major power and resulted in over six million casualties. Governments rose and fell, ancient royal families were deposed and exiled, cities burned, battles raged and the status quo was rewritten year by year. Physically far-removed from the scene of conflict, the United States managed to avoid being forced to choose sides thanks to the policy of steadfast neutrality promoted by the Washington Administration. This non-interventionist stance, however, did not completely shield America from some of the negative effects of the ongoing European conflagration. France and Britain, leaders of the two respective alliances and ever seeking advantage, still regarded the United States as a threat due to American merchants’ refusal to cease trading with either side. As a result, American overseas trade became prey to seizure by both belligerents, shipping and insurance rates rose dramatically, and New England merchants and Southern farmers alike suffered greatly. While war between France and the United States over this state of affairs had been narrowly avoided by the Adams Administration, the problem persisted into Jefferson’s first term in office. As a firm believer in the principle of free trade, a persistent critic of the European monarchies that were engaged in conflict, and a much disenchanted former proponent of the French Republic, Jefferson had a great deal to be disturbed by in 1801. Still, the fact that the United States had managed to avoid being dragged into an all-out war, and had suffered little else than economic damage, was a blessing, and one which Jefferson believed was clearly due to his country’s literal separation from the tumults of Europe.   

Meanwhile, as an entire generation of Europeans was being slashed to ribbons on one battlefield after another, something similarly transformative was occurring in the United States. As early as the 1780s, American began migrating in increasingly large numbers across the Appalachian Mountains and into the Western borderlands claimed by states like Virginia, Pennsylvania, New York and Connecticut. In spite of the efforts of the government under the Articles of Confederation who preferred to maintain cordial relations with the region’s native inhabitants by regulating the pace of settlement, the migration proceeded at a disarmingly rapid pace and resulted in decades of bloody conflict with the local indigenous tribes. The federally organized and governed Northwest Territory (encompassing most of the modern Midwest) subsequently became the site of numerous battles between American military forces and alliances of local bands of Shawnee, Delaware, Wyandot and Iroquois, among others. All told, the so called “Northwest Indian War” claimed over two thousand casualties between 1785 and 1795 and ended in the cessation by the defeated tribes of sizable portions of Ohio, Illinois and Michigan. The relative peace that the conclusion of hostilities brought about greatly increased the flood of settlement into the Old Northwest at the same time that similar migrations were taking place in the western regions of Virginia and the Carolinas. As a result of these population explosions, and the settlers displeasure at being so far separated from their states’ eastern power centres, Kentucky was carved out of Virginia in 1791, and Tennessee from North Carolina in 1796. Though the Congress that came into existence under the Constitution after 1789 attempted to slow the pace of westward movement by setting land prices high enough to dissuade those they felt were unsuitable, the human wave that surged across the west in the 1790s was anything but orderly or organized.

Where Federalists like John Adams and Alexander Hamilton reacted with horror at what they perceived as the chaos that had taken root on the western frontier of the United States, however, Jefferson and his Republican cohorts saw in the migrants and the communities they were establishing a source political power, security, and future prosperity. What the Republicans realized, far quicker than their opponents, was that the growth and emergence of territories and eventually states in the West was altering the political map of the United States. Being mainly farmers who cared more for cheap credit and an outlet for their produce than promoting manufacturing, shipping, or other forms of commerce, the interests of Westerners seemed inevitably to lie more with the Republican-dominated Southern than Federalist-dominated Northern states. At the same time their composition, which included many landless workers and small farmers who had failed to achieve prosperity in their home states and sought to try again in the West, aligned neatly with the emerging Republican ideology of small government, decentralization and “the common man.” By appealing to these emerging western communities and promoting issues that were close to their hearts, like cheap land, low interest rates and decentralized banking, the Republicans were able to place the West firmly in their camp by 1800.

As one of the leaders of the Republican faction, Jefferson was particularly pleased by the fact that the American West was being settled by agriculturalists. Unlike residents of cities, who owned little personal property and could be easily manipulated by their employers or landlords, he believed that men who owned and worked their own land developed a far more independent mindset, and could be depended on to behave in the virtuous, rational, self-interested manner that a republic demanded of its citizens. Furthermore, because the security of their property depended on the security of their local communities, and because they had more to lose than landless workers or merchants, Jefferson asserted that settlers who embraced an agrarian lifestyle could be relied on to rise to the defence of their government when it was threatened from within or without. In time, the growth of the agriculturally-dominated American West would thus secure a future for the United States defined by stability, security, and in time prosperity as American farmers increasingly supplied the needs of a hungry world. For any of this to occur, however, America would need room to grow. Luckily, or perhaps providentially, the United States was possessed in 1801 of, “room enough for our descendants to the thousandth and thousandth generation,” or so Jefferson claimed in his First Inaugural. Whether this would prove true or not is another matter, but it does indicate where the 3^rd President’s mind was focused at the beginning of his first term in office, and foreshadows some of the events that would come to define his administration and his place in American history.

Jefferson’s First Inaugural Address, Part I: Context

            And so we return once more to old T.J. I don’t suppose I ever intended to spend so much of my time in this series discussing the thoughts and writings of a single man, but Jefferson ever proves to be a fascinating subject. Not only did he write voluminously, and preserve seemingly every single letter he wrote from young adulthood until his death, but his contradictions, his idealism, and his at-times shocking radicalism make him very difficult to get a handle on unless one is willing and able to take the long view of his life and career. I say this because Jefferson was, in my view, someone whose opinions seemed to mutate and evolve over time with surprising regularity as he was exposed to new problems and had his prior assumptions tested. What he held as the gospel truth in 1780 he could vehemently disagree with by 1805. Even across a shorter timeline, his capacity to say one thing and do another can be terribly confusing for the scholar who tries to pin him down as being an advocate of this or that ideology or system of belief. His critics thought him inconsistent, though he doubtless regarded himself as a flexible and undogmatic thinker. Perhaps they were both right.

            This is, of course, my rambling way of introducing the next document I’d like to discuss – Jefferson’s First Inaugural Address. Delivered as a written draft to Congress in 1801, Jefferson being a notoriously poor public speaker, it represents the furthest afield I've yet delved into the Sage of Monticello’s public career. Thus far I've shone a light on Jefferson as a young man in his thirties helping to draft the Declaration of Independence, as Governor of Virginia striking a blow for freedom of conscience, and as Vice-President and secret leader of a nation-spanning protest movement. Now I turn to him as President, a mature statesman in the last public office he would ever hold and very intent on making use of the powers he had railed against only a few short years before. Though I obviously won’t be discussing some of the events that defined Jefferson’s troubled second term, when he seemed to abandon all pretence of ideological consistency, I do believe there are hints of what was to come in his First Inaugural and evidence of how his thinking had changed. I’ll be pointing out a few examples myself, but I encourage my readers (all five of you) to go back and review some of the Jefferson documents I’ve covered so far and see for themselves how time and circumstances changed the way he thought and wrote about government, society, and the roles to be fulfilled by each.

            As I recall, we last left Jefferson in 1798 as he seemed intent on pushing the envelope of political resistance in the United States about as close to civil war as it had yet experienced. Luckily for all involved the crisis of the moment that prompted both the passage of the loathsome Alien and Sedition Acts and Jefferson’s radical response in his Kentucky Resolutions was peacefully resolved in relatively short order. In spite of past failed attempts President Adams persisted in his peace overtures towards the belligerent French, and thanks in no small part to the efforts of his envoy, Secretary of State John Marshall, war between France and America was averted. Unfortunately for Adams and his Federalist allies, however, news of the treaty with France came too late to affect the outcome of the presidential election of 1800.

            This brings us, of course, to Jefferson himself. Having lost the election of 1796 to his estranged friend John Adams, and been forced to serve for four years as his Vice-President, Jefferson was keen to try his luck once more in the nation’s highest contest. As in 1796, his running mate in 1800 was a New Yorker named Aaron Burr. I don’t wish to turn too far from the subject at hand, but I feel it important to render a word or two about Burr before I go on. One of the most dynamic figures in early 19^th-century New York politics, Burr remains an exceedingly enigmatic figure. Unlike many of his contemporaries he didn't write extensively (outside of his private journals and correspondence), and seemed content to keep his own counsel on most matters. As a result, colleagues, rivals and modern historians alike have grappled with trying to understand his motivations and what he stood for. I believe this at least partially accounts for the widespread distrust with which many outside his inner circle viewed him; with few concrete opinions to ascribe to him, Burr became a target of rumour, speculation, and libel. What we do know is that his political efforts in New York in the late 1790s proved extremely effective at securing a solid and flexible Republican power base. By creating a robust alliance of workers and recent immigrants, thanks to his efforts to reform land laws and establish a Republican-controlled bank, Burr made New York instrumental to any Republican victory in 1800 and himself instrumental to New York.  It would thus be, I think, going too far to call Jefferson and Burr allies, as the events of 1800 and 1801 would demonstrate. In the moment, however, their interests were aligned.      

            It proved to be a very short moment indeed, however. The understanding between Jefferson and Burr, as many members of the Republican faction were to tell it, was that Jefferson’s name would sit at the top of the ballot, Burr would deliver New York, and in eight years Jefferson would step aside and endorse Burr as his successor. What ended up happening, and which no one seemed to foresee, was that the two men found themselves in a tie. At that time there were 138 electoral votes up for grabs, with 70 needed for a victory. Adams, still the Federalist standard-bearer in spite of tensions within that faction, secured 65 votes. Jefferson and Burr, meanwhile, took 73 each. This deadlock led the election to be turned over to the outgoing House of Representatives, who were to vote as states instead of individual members. This was, understandably, an embarrassing situation all around. Jefferson, veteran politician, was doubtless disconcerted by the upstart Burr’s near-victory and suspected him of taking steps to swing the election away from the venerable Virginian. For his part, Burr seemed completely unwilling to pull his name from contention and honor the prior agreement he’d made with Jefferson. It was, he claimed, not his place to interfere in a free election; the people had spoken, and the chips must fall where they may. The Federalists, stung by the loss of the presidency and both houses of Congress, were in the meantime intent on prolonging the stalemate as long as possible in order to further embarrass the Republicans. Because many of them were also absolutely resistant to the thought of having to vote for Jefferson, a man they regarded as the standard-bearer of Republicanism and their faction’s greatest adversary, six out of the eight states then controlled by the Federalists voted for Burr on the first of what would prove to be thirty-six ballots.

            The rest of the country, meanwhile, did not take the confusion in Washington with good humour. Over the course of the House’s thirty-six ballots, from the 11^th to the 17^th of February, 1801, Republican newspapers called for military intervention in case their Federalist enemies hijacked the occasion to remain in power. The Republican governors of Virginia and Pennsylvania, James Monroe and Thomas McKean, respectively, began the process of readying their state militias for mobilization, and mobs gathered in the nation’s capital and declared that they would take steps to prevent a victor in the presidential contest being declared by the Federalists other than Jefferson or Burr. Correspondence from the period between Jefferson and Monroe indicates that the Republicans were genuine in their threats, and that they were indeed prepared to potentially plunge the country into civil war to prevent a Federalist “usurpation.” Throughout these proceedings Alexander Hamilton, arch-Federalist and staunch opponent of Jefferson and the Republicans, had been engaged in a feverish correspondence with his colleagues in Congress. Rather than instruct them to remain resolute in their resistance to any kind of Republican victory, however, Hamilton actually attempted to convince them to vote for Jefferson. Their political and ideological disagreements aside, and they were many, Hamilton claimed that Jefferson was at least a man of principles and far preferable to someone like Burr, who in his mind possessed none at all. It’s difficult to say how successful Hamilton was, but on the thirty-sixth ballot James A. Bayard, Federalist and sole Representative of Delaware, rendered a blank ballot and convinced his allies from Maryland and Vermont to do the same. The victor needed the support of nine out of the total sixteen states in order to prevail; this action allowed the Republican Congressman from Maryland and Vermont to swing their states in Jefferson’s favor, giving him a final total of ten states to Burr’s four.

            His triumph secure and war averted, Jefferson was understandably in a rather charitable mood by the time of his inauguration. Granted, his feelings toward his now Vice-President Burr would continue to deteriorate over the course of the next eight years, and his conflicts with the Federalists were far from over. But for the moment he could afford to be magnanimous. His First Inaugural Address was very much that, but amidst all the platitudes, the reassurances of America’s place in history and its destiny as one of the world’s great civilizations, there was an undercurrent of irritation aimed at the men he knew to be his critics. Jefferson had long been frustrated by the viciousness of politics. His experiences as Governor of Virginia and Secretary of State had soured him on public service in an environment where men were quick to judge and slow to listen, and would stoop very low indeed to get what they wanted. This same man found himself, in early 1801, the undisputed possessor of the most powerful office in the nation. Though he had railed against the perceived abuses of the Adams presidency and the potentially tyrannical nature of the office itself, he was more than willing to use those same powers to achieve his own goals. The United States, Jefferson believed, needed to be set right again, and damn the critics if they couldn't see it.     

Anti-Federalist Papers: Brutus II, Part IV: Constitutionalism

As well as appealing to the sense he knew all reasoning Americans possessed of their innate and unalienable rights (British-derived though they mainly were), Robert Yates also raised several questions in Brutus II that concerned the specific wording of certain sections of the proposed constitution, and how those sections could potentially be applied. Unlike his inquires that had to do with natural rights, and which showed the mind of a political philosopher at work, Yates’ assertions which related to the actual text of the Constitution and its interpretation were the work of a practised legal scholar. Sharply focussed, Yates pinpointed two particularly troubling aspects of the draft of the Constitution that was submitted to the states in 1787/88 which would prove to be fundamental to two centuries of debate in the United States over the nature and extent of the federal government and the power it wields. In so doing, Yates’ intention was to further punctuate the need for a codified bill of rights to be included in the draft constitution then under debate. Unintentionally, however, he was reinforcing what I referred to in the previous post as one of the American people’s more unusual aspects; their abiding constitutionalism.

            Because of the experience they had gained living under charter-governed colonial regimes, and then put into practice themselves in the 1770s and 1780s in their respective states, Americans had become acutely aware of both the strengths and weaknesses of written constitutions. Worded too specifically and they could prove inflexible and burdensome; too vaguely and they could be easily abused. There was a delicate balance that needed to be struck, and in 1787/88 it was still unclear whether or not the delegates in Philadelphia had hit the mark. Then as now, speculation abounded as to what the overall intentions of the Framers had been; to largely preserve the independence of the states while creating a federal government that was more efficient within its limited sphere, or drastically alter the balance of power in favor of a centralized authority at the expense of the states?  After scrutinizing certain aspects of the raw text of the Constitution, Yates believed that the latter was the case and was keen to make it known.  

            The first criticism he leveled was one he seemed to happen upon almost unintentionally. The thrust of Yates’ argument in Brutus II concerned the necessity of including a bill of rights in the proposed constitution. The Framers, he wrote, had argued in defense of the exclusion by claiming that the existence of similar declarations of rights in the various state constitutions rendered a similar instrument in the federal charter redundant. To that end Yates discussed which of the rights represented in the state constitutions he felt were most essential, and then pointed to certain sections of the proposed constitution that made explicit mention of them. What he claimed to have uncovered ran quite contrary to the claims made by the Framers. In Section nine of Article one, Yates pointed out in paragraph eleven of Brutus II, the Constitution declared that the writ of habeas corpus shall not be suspended unless in cases of rebellion, that no bill of attainder (whereby a legislature could declare someone guilty of a crime without benefit of trial) or ex post facto laws shall be passed, and that no title of nobility shall be granted by the United States. Though Yates did not disagree with any of these declarations in principle, he was at a loss to explain their purpose. At no point did the Constitution explicitly grant the power of suspending habeas corpus, passing ex post facto laws, or any of the other offences that these statements would seem to guard against. In that case, what was the purpose of these restrictions? “The only answer that can be given is,” Yates wrote, “That these are implied in the general powers granted. With equal truth it may be said, that all the powers which the bills of rights guard against the abuse of, are contained or implied in the general ones granted by this Constitution.” By leveling this criticism Yates was drawing attention to what would become one of the most hotly debated concepts embodied in the Constitution, that of implied powers.

            As written constitutions are meant to explicitly demarcate and limit the powers and responsibilities of a government, the notion that there are certain actions a government could accomplish that are only implied (and not clearly stated) by its charter has historically proven to be extremely problematic. In the case of the United States Constitution, this idea is most often felt to be embodied by the “Necessary and Proper Clause.” Located in Article one, Section eight, it states that the United States Government has the power, “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” Constitutional interpretation being an inexact science at the best of times, this sentence has been used to justify any number of measures over the last two centuries of American history that would not seem to have been explicitly sanctioned by the nation’s governing charter. The Constitution, for instance, makes no explicit mention of the State Department, the Treasury, a national bank, or any cabinet secretaries. The Washington Administration, however, felt that all of these things were necessary and proper for the fulfilment of its stated duties and responsibilities. While this is not a particularly objectionable example, measures that have invoked the Necessary and Proper Clause often met with stiff resistance from advocates of strict constructionism who questioned the propriety of their government assuming too many powers that the Constitution did not clearly describe or limit. Robert Yates would seem to have been in this camp as well, though the offending clause was not the specific source of his chagrin.

            Rather, Yates’ alarm stemmed from the Framers’ apparent need to create explicit limits to powers which did not otherwise seem to exist. If, as they claimed, the bills of rights contained in the state charters were protection enough against the powers granted by the proposed constitution, why did they also feel the need to echo certain among them? If the state constitutions already guaranteed habeas corpus (and most of them did), and the federal constitution didn’t grant the explicit power to suspend it, why declare that the writ would not be violated? As aforementioned, the only conclusion Yates could see was that the Constitution contained far more implied powers than the Framers were willing to let on, and that the exclusion of a federal bill of rights was little more than an attempt to limit the restrictions on their use. This fact, as Yates understood it, was made all the more distressing by the second section of the Constitution he chose to highlight in Brutus II, the so-called “Supremacy Clause.”

            Located in Article six, and ever the bane of state’s rights advocates, the Supremacy Clause flatly declares 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 [.]” In Yates’ mind this was tantamount to the Framers effectively abolishing all of the state constitutions, in as much as they would be considered null and void if they were found to be in conflict with the federal Constitution. Not only that, he continued in paragraph thirteen of Brutus II, but all laws passed by the Federal Congress in pursuance of the Constitution would likewise obliterate contradictory state statutes. “No privilege,” Yates wrote, “Reserved by the bills of rights, or secured by the state governments, can limit the power granted by this, or restrain any laws made in pursuance of it.” The argument the Framers made about the adequacy of the various state declarations of rights to guard the liberties of the people was thus entirely false. If the Federal Congress chose to abridge certain rights in pursuit of some higher objective and was not limited in any way by the text of the Constitution, the bill of rights of Massachusetts or Virginia could offer no effective legal barrier.

            Worse yet, if that was possible, was the potential for abuse inherent in the treaty-making abilities the Constitution granted the President. Along with the laws passed by Congress, the Supremacy Clause grants treaties signed by the United States the status of “supreme law of the land.” The terms of such treaties would thus supersede all state laws, up to and including their constitutions. As treaty-making powers rested solely with the President, and their adoption only required two-thirds of the Senate, Yates perceived that the terms of the Constitution effectively reduced the number of people would could drastically alter or abridge the civil rights of American citizens to a distressing few. How could the states how to guard against such a potentially arbitrary, and yet irresistible, exercise of federal power? “The most important article in any [state] Constitution may therefore be repealed,” Yates asserted in paragraph fourteen, “Even without a legislative act.” In all it was Yates’ overwhelming conclusion that a federal bill of rights was the best, and in some cases only solution, to problems presented by these kinds of alarming eventualities.    

            Having said all of that, and by way of conclusion, I think it’s important to recall a few things about the Anti-Federalists and their legacy. In as much as its supporters failed to achieve many of their stated objectives, chief among them the rejection of the Constitution or the inclusion of a bill of rights prior to ratification, Anti-Federalism was arguably on the losing side of one of the earliest and most polarizing political debates in post-Revolutionary American history. And though consequently many of its most ardent advocates became staunch opponents of the federal government that came into existence in 1789, anti-federal agitation gradually faded away as new ideological and regional fault lines began to take shape in the United States. By at least the turn of the nineteenth century, and certainly by the 1820s, few if any prominent Americans would have been quite so willing to denounce the Constitution and the government it created as Robert Yates, Patrick Henry, and their contemporaries had been in the late 1780s. In spite of this eventual disappearance, however, the Anti-Federalists left an indelible mark on the history and political culture of their country.

The United States Bill of Rights, taken up in June, 1789 as one of the first legislative measure of the First Congress, was a parcel of ten amendments to the Constitution that, among other things, guaranteed freedom of speech, religion and of the press, protected the right to bear arms and of trial by jury, and guarded against unlawful search and seizure and cruel and unusual punishment. Submitted for ratification in September of the same year, Virginia became the last of the original states to approve in December, 1791. As a clear and unambiguous declaration of the rights and liberties enjoyed by every single American, the Bill of Rights was precisely what many of the Anti-Federalists (Yates included) had demanded during the ratification debate. And because it was a part of the Constitution proper, the rights therein could not be abridged by either the Federal Congress or any of the various state legislatures without further amendments. Their unglamorous departure aside, it was a stunning victory for the Anti-Federalists – thanks to their efforts, their speeches and broadsides and essays, they had helped make the personal and unalienable sovereignty of the individual an unshakable cornerstone of the supreme law of the American republic.

            But more than that the Anti-Federalists, and the Federalists for that matter, helped establish one extraordinarily important fact about how American political culture could function. While in later periods, from the early nineteenth century to the present day, political conflict in the United States has been expressed in legislative deadlock and obstructionism, ad hominem personal attacks, and even threats of armed resistance, the disagreements between the Federalists and Anti-Federalists were comparatively restrained. Tempers ran hot at times, but the main forum of disagreement seemed to be confined to the printed page. Rational debate provided the battlefield and reason and rhetoric the weapons. Rather than relying on the loudness of the voices and the audacity of their claims, both sides counted on their audience being able to distinguish a valid argument from an invalid one. They helped things along, certainly, by structuring their assertions in such a way as to appeal or insinuate, but threats of violence or personal attacks rarely if ever seemed to factor into the efforts made by either the supporters or the critics of the United States Constitution.

The Anti-Federalists in particular seem to present a model of decorum and civility. They made a well-reasoned and impassioned case against the adoption of the Constitution, in the process pointing out many of its flaws and demonstrating how easily the new federal power could be abused. Having failed to achieve their main goal, with the ratification of the document they so ardently opposed, they didn’t threaten secession, lead an armed resistance from within their respective state governments or otherwise refuse to cooperate. Rather, many of them accepted the altered status quo, sought seats in the Federal Congress and continued to caution against runaway Federal power. In time this embryonic Anti-Administration bloc would evolve into the Democratic-Republican faction (whom I’ve spoken about before), one of the most influential political organizations in the history of the early United States. In spite of their “failure” in 1787/88, it seems, the Anti-Federalists achieved a great deal. And I would submit that this was because of the way they conducted themselves, their respect for reasoned debate, their acceptance of an unfavorable outcome, and their rejection of sensationalist tactics.

Anyway, that’s how I see it. By all means, judge for yourself: http://www.constitution.org/afp/brutus02.htm

Anti-Federalist Papers: Brutus II, Part III: Common Ground and Continuity, contd.

It should not be seen as in the least surprising that most of the state constitutions which were drafted in the late 1770s following the declaration of American independence contained some form of a bill of rights on the British model. Inexperienced state-makers though the revolutionaries were, they seemed at least to be of the near-uniform opinion that certain rights were in need of concrete legal protection. Yates said as much in the third paragraph of Brutus II, where he observed that, “At a time when the pulse of liberty beat high, and when an appeal was made to the people to form Constitutions for the government of themselves, it was their universal sense, that such declarations should make a part of their frames of government.” Of the rights enshrined in these state constitutions, Yates also chose to shine a spotlight on a particular few. Specifically, he pointed to the importance of the right of habeas corpus (in paragraph five), protection from excessive bail and fines and unlawful search and seizure (paragraph six), the right of trial by jury (paragraph eight), and the prohibition against the existence of standing armies during peacetime (paragraph nine).

Taking Yates’ assertion in hand, that Americans were so fond of their rights that the made sure to codify them when they were drafting their state constitutions, I thought it might be worthwhile to examine some of these state charters and see for myself. Rather than examine each of the eleven original state constitutions (remembering of course that Connecticut and Rhode Island maintained their colonial-era charters), however, I've instead chosen to explore those of Virginia, Massachusetts and Pennsylvania only. Among the thirteen original members of the United States, these three represented the greatest concentration of wealth, population, and influence. By comparing and contrasting their respective bills of rights, a great deal can be concluded about how much 18^th-century Americans valued these kinds of legal protections and which specific rights they felt were worth enumerating.

The first state constitution of Virginia was drafted in 1776, and contained a “Declaration of Rights” that encompassed sixteen sections. Among various calls for frequent meetings of the people’s elected representatives and repetitions of the assertion made famous by the Declaration of Independence that “all men are created equal,” the document stated: there would be no enactment of martial law without the consent of the people of their representatives; no levying of excessive bail or fines and no use of cruel and unusual punishment; that the rights of habeas corpus and trial by jury were guaranteed; that no warrants were to be issued without probable cause and due process; that there would be no standing armies in time of peace; no restrictions on the practice of religion or the freedom of speech; and that the right to frequent and fair elections was not to be abridged.

Pennsylvania’s 1776 constitution (the first of five) also contained a bill of rights that was divided into sixteen sections. Like that of Virginia, the document guaranteed freedom of religion, the right to fair and frequent elections, the rights of habeas corpus and trial by jury, and freedom of speech, as well as injunctions against standing armies during peacetime and warrants issued without due process and probable cause. Unlike the framers of Virginia’s constitution, the authors of Pennsylvania’s state charter also enshrined a right to taxation only with the consent of the people or their representatives, freedom of the press, assembly and movement between states and territories, and the right to bear arms.

The Massachusetts Constitution, written in 1779 and still in operation today, contains a thirty-part Declaration of Rights situated directly after its preamble (as perhaps a sign of its importance). While it covers most of the same topics as those similar documents enshrined in the Virginia and Pennsylvania constitutions, it also ventures into certain specific areas left untouched by either. In common with its brethren, the Massachusetts Declaration endorsed freedom of religion, assembly and speech, the right to bear arms and to enjoy fair and frequent elections, the right of habeas corpus and trial by jury, and prohibitions against taxation without consent, warrants being issued without probable cause and due process, the enactment of martial law without consent, or the levying of excessive fines or bail and the use of cruel and unusual punishment. Unique among the three here presented, the Massachusetts declaration also declared ex post facto laws illegal, made provisions for the public funding of religious education, and decreed that all powers not delegated to the United States in Congress Assembled (as the federal government was then known) were reserved to the state itself.

It would seem, between Yates’ claims and my meagre explorations, that there was at least a base set of fundamental rights whose importance most Americans agreed on. These included, by my reckoning, the rights of habeas corpus and trial by jury, the right to bear arms, to frequent elections and taxation only with consent, protection from excessive bail and fines and unlawful search and seizure, freedom of religion and speech, and an absolute prohibition against standing armies during peacetime. Of these, some are clearly Enlightenment derived. Free speech and freedom of conscience, for example, seem very much rooted in the embrace of personal responsibility, the search for truth and the importance placed on open debate that so defined the Enlightenment and the reforms movements it spawned. At the same time, the value that 18^th-century Americans seemed to place on the free exercise of religion was no doubt in part a consequence of how and why many of the colonies in British America were founded. Pennsylvania, Massachusetts, Maryland, Rhode Island, and New York (at least initially) were all characterized by their founders as havens for the religiously persecuted of England. While they did not always remain so, or the degree of religious liberty they afforded was not always consistent, the idea maintained a strong hold on the minds of the colonial political class.

That being said, a significant portion of the rights that members of the Founding Generation seemed to hold dear were arguably of British derivation. A perusal of the 1689 Bill of Rights, which Yates drew explicit attention to in Brutus II, makes this fact quite plain. In its ornate, 17^th-century verbiage the Bill of Rights, among many other resolves and declarations and protests, declared that it was in keeping with the “ancient rights and liberties” of the English people that the crown: had no power to collect taxes without the consent of Parliament (no taxation without representation); to raise armies in times of peace, or restrict the ability of the people to keep and bear arms; to tamper with the frequency of meetings of Parliament or the manner in which elections were held; to enforce excessive bail, fines, or punishment considered cruel or unusual; or to tamper with the right of trial by jury as established by tradition and precedent. In 1689, these were rights that the administrative classes in England agreed were absolutely fundamental to their shared sense of citizenship and socio-political identity. That they should have also been championed by 18^th-century Americans is not so surprising in light of their mainly British origins, though it is at times curious how rabidly anti-British many of the foremost defenders of these rights and liberties sometimes were.

To put forward another example, take the right of habeas corpus. A writ (like the previously discussed mandamus), habeas corpus petitions are utilized by those that have been arrested and detained but not formally charged in order to compel the arresting authority to bring the detainee before a recognized judicial power so that charges may be made known and the validity of their seizure can be established. If, for instance, an individual is arrested without cause and held for an indefinite period, a writ of habeas corpus can be requested in order to establish the unlawful nature of the imprisonment and secure the prisoner’s release. Often referred to as “the Great Writ,” habeas corpus has its origins in English common law and developed into one of the English legal system’s fundamental remedies over the course of many centuries. Statutes dated 1640 and 1679 were the first to formally enshrine the writ in English law, but ample evidence exists of its usage as far back as the 12^th century and the reign of Henry II. As 18^th-century British legal scholar William Blackstone explained in his Commentaries on the Laws of England, habeas corpus writs were always issued in the name of the monarch, who is,  “At all times entitled to have an account, why the liberty of any of his subjects is restrained, wherever that restraint may be inflicted." As common law was inherited by the English colonies founded in North America in the 17^th and 18^th centuries, so too was the Great Writ. And as Englishmen came to view it as one of the most basic protections afforded to every citizen against unlawful incarceration, so their American brethren came to see it in much the same way.

The point I’m trying to make, mazy and circuitous though it sometimes is, is essentially twofold. On the one hand, 18^th-century Americans were a very unusual people. They were, for their time, unique in their attachment to written constitutions. Their forefathers, the English, felt no such compulsion to codify every aspect of their government. Nor, with a few exceptions, did the ancient Greeks or Romans whom they praised and admired, or even the Dutch, members of the only other republic then in existence. Perhaps this was a consequence of their attachment to Enlightenment rationalism; what better way, after all, to make something plain and clear than by writing it down? Or perhaps it was due to the way their colonial government operated. Unlike Britain, which to this day has no written constitution, the colonies of British North America all functioned via a series of royally-granted charters. Virginia, Pennsylvania, Massachusetts; all were defined by charters that described the size, scope and composition of their governments. Sometimes these charters were revoked or replaced, but there never seemed to be a time when the colonists determined that they were no longer necessary or desirable. And when the Revolution came and a change was required, constitutions took their place, each containing a declaration of the rights that it was felt were most in need of protection.

When later events necessitated the writing of a national constitution, it was with surprise that many readers came to recognize the complete absence of a similar declaration contained within. Robert Yates was certainly one of those readers, and though his insistence on the inclusion of a written declaration of rights in the proposed federal constitution was rooted in a very American sentiment, the rights that he specifically chose to highlight and the historical examples he put forward were quite the contrary. Like so many Americans of the Founding Generation, Yates looked to their shared British past and to the rights and privileges he and his countrymen had inherited from their forefathers for guidance and inspiration. The importance of declaring the rights of the people in opposition to a central authority had been arrived at in Britain long before any of the American Founding Fathers had even been born. Habeas corpus and trial by jury were staples of English common law that had evolved over the course of centuries, and the supremacy of the people’s representatives (embodied in Parliament) over the arbitrary authority of the Crown had been secured via a long series costly wars. In short, Englishmen had wrestled their rights into existence and shed blood to ensure they were recognized and protected.

Members of the American Founding Generation fought for these same rights in the 1770s and 1780s no less valiantly than their predecessors, and for decades afterword continued to look to British history and philosophy for insight and illumination. This, in essence, is the other point I’d like to make, and which Yates perhaps unintentionally called attention to in Brutus II. The American Revolution and the political changes that it wrought were certainly innovative in many extremely important aspects, but the sense the revolutionaries had of natural rights and natural law arguably wasn’t one of them. In many ways, then, the American colonists’ conflict with Parliament was really a continuation of Parliament’s own struggles with the Crown in centuries past. By demanding that a bill of rights be included in the proposed federal constitution, Yates was in a sense helping to re-enact and rejuvenate the debate over natural rights and the limits of authority that had essentially been settled in Britain at the end of the 17^th century by the Glorious Revolution.

Anti-Federalist Papers: Brutus II, Part II: Common Ground and Continuity

            When Brutus (or Robert Yates, as was almost certainly the scribe’s true identity) set out to confront the advocates of the United States Constitution in a series of essays publish in the New York Journal and the Weekly Register in 1787 and 1788, he did so very much in the spirit of opposition. The Massachusetts compromise, which allowed ratification to be linked to eventual amendment, had yet to take place and the object of most Anti-Federalists was at that time to entirely defeat the ratification effort and force either a second constitutional convention or an abandonment of the effort altogether. Yates, therefore, had little reason to be conciliatory or show any admission to the Federalist point of view. Consequently the tone of the majority of his essays is quite scathing (perhaps a factor in why they are so memorable), showing a degree of contempt for the at-times vague language employed by the Constitution and a desire to expose what he perceived as the Framers self-interest and corruption. Nevertheless, Yates and him opponents were a part of the same generation of Americans. They’d been raised and educated in much the same intellectual environment, and in spite of their economic or cultural distinctions (being wealthy or middling, Dutch or English, Puritan or Quaker) most drew from the same basic philosophical well. There are, accordingly, more than a few appeals in Yates’ Brutus II to what would almost certainly have constituted common ground among members of the Revolutionary Generation.

            Among the first of these common references that Yates made was in the second paragraph of Brutus II, and concerned the notion of a social contract and natural rights. Like John Adams or Thomas Jefferson, Yates seemed keen to endorse the basic philosophical concept that all societies are based on an unspoken contract between rulers and ruled. Government is the reaction to perceived needs; people need protection, from each other and from outsiders, and so they form communities that provide certain services in exchange for a voluntary surrender of a portion of each member’s personal sovereignty. “The common good, therefore,” Yates wrote, “is the end of civil government, and common consent, the foundation on which it is established.” This is a classic example of social contract theory, and a concept fundamental to contemporary Western European philosophy. Though I know I’ve discussed this very concept in a previous post, some time has passed since then. For that reason, I’d like to take a moment to delve into a somewhat expanded refresher on the topic of the social contract.

            Natural law, natural rights and the social contract have been topics of discussion for centuries, perhaps millennium, among the foremost minds of their respective generations. From Ancient Greece and India, to Republican Rome and Renaissance Italy; they were hardly new ideas by the time of Yates and the Anti-Federalists. That being said, social contract theory as it was understood by the Revolutionary Generation in America was very much a product of the 17^th and 18^th centuries. The thinkers that would likely have resonated for them the most were Hugo Grotius, Thomas Hobbes and John Locke. Grotius (1583-1645) was a Dutch jurist, philosopher and statesman who theorised that every individual possessed certain rights that were not granted to them by monarchs or political institutions but were inherent to their existence as human beings. These rights were part of a moral framework that was not based on a specific religious doctrine, but rather stemmed from a sense of social acceptability that was born out of consensus. People, Grotius argued, were the prime sovereign actors in society and their actions were constrained by what they and their neighbours agreed was suitable behaviour. Hobbes (1588-1679), English philosopher and polymath, expanded on these ideas in the 1650s and formulated a more structured social framework than Grotius had imagined in the 1620s. While Hobbes was willing to endorse the notion of natural rights and was the first to describe the political arrangement between the governed and their governors as a “social contract,” his description of the concept was quite rigid. While Hobbes believed that individuals did cede some of their rights when they recognised the authority of law and government, he did not believe that these rights remained with the individual. Living within a society, he asserted, was tantamount to endorsing the authority that made that society possible; the only way to completely recapture ones rights would be to exit the social contract completely by living outside society in a state of complete anarchy.

            Locke (1632-1704), the great English republican luminary, was the social contract theorist that most educated American in the late-18^th century would have been familiar with and sympathetic towards. It was Locke that described the more flexible social contract that men like Jefferson fully endorsed, and that recognised rights and responsibilities on behalf of both the ruled and the ruler. He believed that the purpose of the state was to act as a neutral judge between individuals and communities, and to protect the life, liberty and property of those within its borders. A government that violated these terms was guilty of breaking the social contract, and thus offered itself up to be overthrown and replaced. Lockean social contract theory was very much at the heart of the rights-based ideology expressed by the American Founding Fathers and was prominently featured in the Declaration of Independence. Locke’s was not, however, the most recent articulation of the concept that the Founders would have had access to. Swiss thinker Jean-Jacques Rousseau (1712-1778) had developed his own formulation of social contract theory in his 1762 treatise, the aptly titled Social Contract. While not as widely known and read in America as Locke, perhaps because he was both radical and French, Rousseau was still highly influential among a certain (particularly well-read) percentage of the Revolutionary Generation. His argument was somewhat more abstract that any of his predecessors, and regarded the social body as almost an entity unto itself. Law and government, he wrote, were the product of social consensus and functioned best when individuals surrendered their wants and desires to the greater good. Representative government was, to Rousseau, a step in the right direction, but still created a barrier between people and their government and would need to be eventually transcended. To most of the Founders, who as they matured had been inundated by British rights culture, this self-abnegation was a bridge too far. Locke was their yardstick, and it was in a Lockean mode that Yates set out the beginnings of his argument in Brutus II.

            Though the Anti-Federalist Papers were certainly an instrument of opposition, in this case to the proposed Federal Constitution, they were also, like the Federalist Papers, a tool of persuasion. Yates and his fellow Anti-Federal authors wrote for an audience whose minds they were intent on swaying to their cause. Because of the way the Constitution had to be ratified by specially-formed conventions prior to its adoption this was far from an ineffective tactic. And in Brutus II Yates demonstrated one of the simplest ways he appealed to the reason of his readers, by establishing a sense of agreement and consensus between them and him. The social contract was a commonly understood concept among the class of men who were in attendance at the state ratifying conventions. If Yates could show how aligned the opinions of his audience already were with his own, convincing them to overcome the remaining differences was hopefully made all the simpler.

            It was doubtless in this mode that Yates also argued for the inclusion of a bill of rights in the federal constitution by citing past examples taken from both the British and American contexts. This was, in fact, the main object of Brutus II. Yates, among many others, felt the Constitution’s lack of a clearly defined series of legal protections for individual rights was highly suspect. For something that had formerly been highly revered in America (as the idea of a bill of rights certainly was), such a conspicuous absence struck many of the document’s critics as a naked attempt by those that stood to wield the powers granted to the new government to erase any legal roadblocks to their eventually assuming tyrannical authority. As the Anti-Federalists and Yates in particular were quick to point out, there existed in the 1780s much precedent to be found in favour of the inclusion of a bill of rights, or something like it. English legal history furnished two influential examples, the Magna Carta and the 1689 Bill of Rights. The former was drafted by a collection of rebellious barons in 1215 and forced on a reluctant King John I in exchange for allowing him to maintain his throne. Among other things, most having to do with now-obscure feudal privileges, the Magna Carta guaranteed certain rights to free-men (people not in service to a feudal lord) and the church, ensured standard practises in trial matters, and restricted the levying of fines so as not to endanger a person’s livelihood.

In spite of the fact that it remained in force until well into the 19^th century, however, the significance of the Magna Carta is largely symbolic. Indeed, the charter that was forced on John I in 1215 was almost immediately annulled by the crown; subsequent versions were issued by later monarchs in an attempt to placate the nobility, though these later Magna Cartas no longer contained the provisions that represented a direct challenge to the power of the monarchy. For example, the earliest drafts of the document included a provision that would have allowed the creation of a council of nobles who could meet in order to review the monarch’s behaviour. If it was found that the king/queen was in violation of the rights granted by the charter, the council could authorise the seizure of crown property. This clause was highly objectionable to John I and his successors, and subsequent versions of the Magna Carta (most notably the 1297 draft that was submitted to and approved by parliament) omitted it entirely. Nevertheless, the idea of the Magna Carta, that even monarchs were not above the rule of law and could be bound by their subjects to respect certain rights, proved highly influential both in Britain and in America. Among other things, it came to be regarded as the cornerstone of what’s known as the unwritten British Constitution, and led to the emergence of Parliament as a body that represented the interests of the kingdom apart from the crown and wielded significant legal authority on its own.

Over the centuries that followed the distinct legal authority and identity of Parliament grew and evolved, and the British tolerance for unchecked monarchical power waned. In 1689, the overthrow of James II and the installation of his daughter Mary and son-in-law William as joint monarchs witnessed yet another evolution of the British Constitution in the direction of codifying the rights of the people and the restrictions placed on the crown. The subsequent Bill of Rights was, as previously discussed, the culmination of nearly fifty years of conflict between Parliament and the monarchy. As a piece of legislation, it enshrined a variety of individual protections into British law; among them were guarantees of the freedom to bear arms, freedom of speech, freedom from cruel and unusual punishment, and prohibitions against royal interference in function of the law. Symbolically, its significance was perhaps more far-reaching. For Englishmen in the late-17^th century the Bill of Rights confirmed what they already felt in their hearts; that they were among the freest people in the world and the most conscious of their rights. Over the course of the 1600s they had faced down the spectre of absolute monarchy and slain it, and the Bill of Rights was the great symbol of their victory. Americans, who in the main were of British heritage, felt this sense of pride no less than their brothers across the Atlantic. Among the Founding Generation, the Bill of Rights was one of the most highly regarded and widely cited examples of the British freedoms the revolutionaries felt had been taken from them and which they hoped to reclaim.

            By pointing to both the Magna Carta and the 1689 Bill of Rights as objects of inspiration Yates was affirming his and his countrymen’s legal heritage, harkening back to the founding of the United States (as a revolt over the violation of established rights) and once more attempting to establish a common ground between himself and his readers.

Anti-Federalist Papers: Brutus II, Part I: Context

            Having thus far devoted quite a bit of ink to examining and commenting on some of the many essays that make up the Federalist Papers, it occurred to me that it would be only fitting and proper to also explore the other side of the 1787 ratification debate. By this I mean the Anti-Federalist Papers, a collection of essays written by opponents of the proposed Constitution who took their case to the public via newspapers in an attempt to counter the writings of Alexander Hamilton, James Madison and John Jay. Unlike the effort led by Hamilton, which was organized and cooperative, the Anti-Federalists did not work in concert or necessarily see themselves as representing a united front. To that end, some made use of pseudonyms (like Brutus, Plebian, Federal Farmer and Sydney) while others published under their own names (like Patrick Henry or Melancton Smith), and attempts at producing collections of their writings have varied significantly in size because there is no mutually agreed-upon list of who is actually considered an Anti-Federalist. Regardless, there are under the broad Anti-Federalist umbrella various series of essays that cover a wide range of topics to great effect. Those written under the name Brutus are among the best regarded, and compose together sixteen parts. That which will be examined here is the second in the series, and concerns itself with the necessity of a bill of rights.

            As ever, I’d like to take a moment before diving into the text itself to establish a few points of context; in this case mainly having to do with the nature of Anti-Federalism and the identity of Brutus himself.

            As already mentioned the Anti-Federalists were a diverse group, almost to the point that referring to them as a group would seem misleading. They couldn’t be easily defined geographically or economically; some were men of wealth and establishment while others were of decidedly middling status, and they came from states across the Union. The root of their opposition to the Constitution was similarly varied: some believed that the proposed federal government would inevitably threaten the liberties and prestige of the various states; some argued that the creation of a centralized executive branch would lead to a rebirth of the tyranny that the recent Revolution had attempted to cast off; some felt, as individuals, that their fundamental rights were at risk; and some believed that the Articles of Confederation were an adequate means of governance, or that the proposed constitution was simply too strong to be trusted. Within this rather broad spectrum there were moderates and extremists, from those that believed the Constitution was simply in need of amendment before it was ratified to those that believed it represented the greatest threat to American liberty since the passage of the Intolerable Acts in the 1770s. As the ratification debate got underway and as the Federalist Papers began their print run the Anti-Federalists made themselves heard in kind, and set about dissecting both the Constitution itself and the arguments presented Hamilton and his co-authors.

            It would be difficult to say, beyond a shadow of a doubt, how effective the efforts of the Anti-Federalists really were. Obviously the Constitution was ultimately ratified, thereby completely dashing the hopes of a decent portion of their number. More to the point, I should say, it was ratified without any alterations or amendments. This did not remain the case for very long, however, and therein lays perhaps the greatest legacy of the Anti-Federalist movement. Amendments to the Constitution were considered by many to be absolutely essential, even among those that generally favored its adoption. Where disagreement most often took root concerned how far the amendment process should go, and whether it should pre-date ratification or post-date it. Initially, most who favored the inclusion of some kind of bill of rights argued that its inclusion must come before ratification. This was perhaps in hope that the issue would not be swept under the rug once the Constitution was formally established, but rather be made an absolute pre-condition. Though this position was overcome by pro-ratification elements in some states, in Massachusetts it proved almost completely intractable. After protracted negotiation, and at least one instance of physical violence, an agreement was reached whereby approval of the Constitution came only with the provision that a bill of rights would be among the first amendments recommended to the newly minted Congress. The “amendment-before-ratification” supporters had become “amendment-after-ratification” advocates, likely out of fear of being left out of the new government if it was eventually adopted, and similar transformations followed suit in New Hampshire, Virginia and New York. Still, resistance proved so strong in Rhode Island and North Carolina that neither state endorsed ratification until after the Constitution was adopted, elections held, the President and Congress inaugurated and amendments approved (North Carolina joined the Union in 1789, Rhode Island in 1790).    

                      

While there has been a degree of speculation over the centuries as to the identity of Brutus, most authorities on the matter now agree that one Robert Yates was almost certainly the author of the sixteen essays published under the name. This is a conclusion to which I agree, and on that note I’d like to take a moment for a brief overview of Yates’ life and career up to the late 1780s. Born in Schenectady, New York in 1738, Yates was the son of a merchant who initially pursued a career in surveying before taking up the law in the 1750s. He did not appear to have attended any of the colleges then operating in the colonies (such as the College of New Jersey, Kings College in New York, or Virginia’s College of William & Mary), but studied law under future Governor of New Jersey William Livingston and was licensed in 1760. In subsequent years he supplemented his income by continuing to operate as a surveyor and cartographer, and in the 1770s was elected as an alderman for the city of Albany. Having been involved in the organized resistance to the Stamp Act in the 1760s, Yates also took an active part in Revolutionary politics as they emerged in New York after 1775. A member of the Albany Committee of Correspondence (a kind of alternate government to the royally approved colonial administration), and the Provincial Congress (the colonial/state legislature) he helped coordinate New York’s war effort, and in 1776/77 served in the convention that drafted the state’s first constitution. In 1777 he was appointed to the state Supreme Court, and during his tenure there became an ally of longstanding New York Governor George Clinton and his anti-federalist faction. In 1787 he was appointed, along with John Lansing Jr. and Alexander Hamilton, to represent New York at the Philadelphia Convention. It was his belief that the purpose of the convention was to amend the Articles of Confederation so as to make them more effective; when it became clear to him that the majority of delegate were in favor of tossing the Articles altogether and drafting an entirely new governing charter he chose, along with Lansing, to depart. When the finished Constitution was subsequently presented to the states for ratification Yates was selected to attend the resulting convention in Poughkeepsie as a supporter of the anti-federalist position.     

            As to the name “Anti-Federalist,” it was certainly not of their choosing. During the Revolution it had become common for a person who supported the union of the states under the Articles of the Confederation to refer to themselves and those of like mind as federalists. At the conclusion of hostilities in 1783, however, critics of the Articles and the ineffective government they created appropriated the term to signify those in favor of measures that would enhance the power and efficacy of the federal government. These measures included the drafting of an entirely new constitution, opponents of which were summarily dubbed “Anti-Federalists.” Meant to imply a lack of patriotism and/or opposition to Congress, the label was roundly rejected by many state and local groups who objected to the Constitution, and who attempted to recapture the federalist moniker for themselves. They were ultimately unsuccessful, despite the efforts of authors like “A Federal Farmer” and organizations like the Federal Republican Committee, and the terms Anti-Federalism and Anti-Federalist have since completely solidified as referring to the late 18^th-century unorganized opposition to the United States Constitution.