How Would America Have Developed Under The Articles of Confederation?
The Anti-Federalist Vision of American Republicanism
You are likely familiar with the phrase “History is written by the winners”
I want to discuss a rather unique example of when history was written by the winners. Because in this instance the winners, known to history as the federalists and the losers, known to history as the anti-federalists were both on the same side and fighting for the same thing. Initially, they were a conglomeration made up by the citizens of the several states that we remember as “the American Patriots”.
In July of 1776, The Second Continental Congress began putting together the framework for a new government. November of 1777, the Congress had a workable plan of government known as the Articles of Confederation.
November 15th, 1777 copies of the Articles were sent to each of the several State for Ratification. The Articles came into force on March 1, 1781 after ratification by all 13 states.
In 1783 the Treaty of Paris was signed, which gave international recognition to the United States as 13 sovereign nation states. And that part is important to understand. That these new United States were truly independent sovereign nations with all the rights and privileges thereof. In fact our ever-practical ally, France, intended to send 13 diplomats to America. Which is demonstrative of the fact that this was both the internal and external understanding our first system of government.
By 1787, there was a general agreement among the several States about the utility of holding a convention to consider amendments to the Articles of Confederation. This is the dawn of the federalists and the anti-federalists.
It quickly became clear that two very different visions of what America should be had formed among the people of the several states. The Federalists saw the primary problem as coming from a lack of energetic government. They believed a whole new scheme of government was necessary. The Anti-Federalists saw the central problem as an abandonment of the ideals that created and drove the American Revolution. As Samuel Adams, or possibly a follower of his, writing under the pen name Candidus would articulate:
We're too apt to charge misfortunes to the want of energy in our government institutions which we have brought upon ourselves, by dissipation and extravagance.
Because it was the Federalist’s vision for an energetic scheme of government that would eventually succeed the historical narrative we have been left with is the one overwhelmingly crafted by the Federalist victors in which they portray the anti-federalists as petty contrarians who were fixated on their opposition to the Federalists and their proposal for a stronger, centralized government.
Far from being simple contrarians, the anti-federalist republican vision was both comprehensive and compelling. They did tend to favor keeping the articles of confederation in play and generally recognized a few flaws in that document should be ironed out with a few amendments. But for the anti-federalists, that argument was largely on the periphery. Because what they proposed was an appeal to a moral and political philosophy known as classical republicanism.
Part I: Classic Republicanism
Classical republicanism developed in the Renaissance inspired by the governmental forms and political philosophy of classical antiquity, especially such classical writers as Aristotle, Polybius, Cicero and Livy. Their work in turn provides the historical and philosophical foundations of the Roman Republic and the ancient Greek leagues— Including the Amphictyons, Achaeans, Aetolians, Lycian’s
Classical republicanism is built around concepts such as - Civil society, civic virtue and mixed government. The father of classical republicanism was Niccolò Machiavell. It was his posthumously published Discourses on Livy that provides the foundation of classical republicanism. Other notable classical Republicans were Jean-Louis de Lolme, Algernon Sidney, James Harrington, and unfortunately Jean‐Jacques Rousseau.
But as far as American Republicanism is concerned, the indispensable man is Baron de Montesquieu. Especially his 1748 masterpiece The Spirit of the Law.
Classical republicans drew heavily on ancient models and authorities, but they matched these models with new concerns and examples drawn from the world around them to create a distinct ideology.
Popular sovereignty and the rule of law were the first and fundamental attributes of Rome's republican liberty, protected by frequent popular elections and limited terms in office.
A “republic” denoted for its adherents what we might today call constitutional government, the rule of law, or simply good government, and this notion was thought consistent, at least potentially consistent with monarchy as one of its components. So, while modern republicanism categorically rejects any hereditary or autocratic monarchical system, in favor of “rule by the people” classical republicanism was rather aimed against any form of tyranny, whether that tyranny was monarchic, aristocratic or democratic. They concerned themselves far more intensely with the proper forms and duties of government, and were always critical of government actors who overstepped their prerogatives.
Classical republicans overwhelmingly agreed that good government was exceedingly fragile. Classical republicans often invoked the medieval image of the Wheel of Fortune to describe capricious historical change. For example, Machiavelli’s most famous work, The Prince, is commonly pigeon holed as the first political treatise that argues government should exist beyond any sort of moral framework. But Niccolò Machiavelli loved the ancient Roman Republic to the point of a fetishization of Rome as an ideal model of republican government. In fact, a careful reading of the prince, reveals a much more subtle and nuanced dialogue.
Machiavelli merely recognized the bad turn of fortune that the Florentine Republic had undergone when The Medici's and the Roman Curia had usurped and centralized the power over that region. The Prince was written to address the proper rule of a state whose republic had lately been overthrown and in which the key question was how best to save what could be preserved from the erstwhile Florentine Republican government.
In America The Spirit of the Laws quickly became the most frequently cited authority. But Montesquieu didn't simply restate the classical republican tradition. In important ways, he reinterprets that tradition he gives to the classical republican experience a novel analysis.
In its original form, republican government had been understood more in aristocratic than in democratic terms. Republic's at their best, were understood to be shaped by and for an elite, but not an elite, defined by or aimed at money or wealth. Instead, an elite genuinely dedicated to a wise exercise of virtue and civic duty that generously preoccupied the moral elite with the politics of caring for the welfare of the whole community. This was achieved by creating what is known as a mixed regime, or mixed government.
In its aristocratic form, such as the government of the ancient Roman Republic this concept was identified by the emblematic motto Senatus PopulusQue Romanus which translates as “The Senate and the People of Rome.” This phrase signified Rome was a government by the people. Because its authority came from the people.
In Montesquieu’s democratic reformulation the best practical sort of Republic was one that mixes elements of monarchy, aristocracy and democracy. Hence, mixed government. Montesquieu thought the best example of this was the constitutional monarchy of Great Britain. Where these elements of Monarchy, aristocracy and democracy existed in the form of the King, the House of Lords and the House of Commons.
The Montesquieuian reformulation took considerable power out of the hands of the moral elite, and placed that power in the hands of the majority of the populace. In the best version of this compromise mixed regime, the few of distinguished virtue had to share power with the ordinary people and govern by their consent.
Thomas Jefferson, in a letter to John Adams articulated what I consider one of the most poignant descriptions of the classic mixed regime
I agree with you that there is a natural aristocracy among men, the grounds of this are virtue and talents. There is also an artificial aristocracy, founded on wealth and birth, without either virtue or talents. The natural aristocracy, I consider as the most precious gift of nature, for the instruction, the trust and government of society. May we not even say, that form of government is the best, which provides the most effectually for a pure selection of these natural Aristoi into the offices of government? The artificial aristocracy is a mischievous ingredient in government, and provisions should be made to prevent its ascendancy. I think the best remedy is to leave to the citizens, the free election, and separation of the real Aristoi to the pseudo Aristoi; of the wheat from the chaff. In general they will elect the real, good and wise.
Now Montesquieu, in contrast to his republican forbearers such as Cicero or Livy, had argued that the true virtues of the classical Republics were more popular & egalitarian. Mediocre, as Montesquieu put it. At its best, Montesquieu insisted the classical Republic puts supreme power in the hands of the assembly of all the citizens meeting frequently to pass by majority vote, the fundamental laws and to serve as mass popular juries in court trials, and thus to control the judiciary, and also to elect and later to pass judgment on administrative officers who were understood to be the people's public servants. Montesquieu’s conception of government by consent had teeth in a way that was often lacking in the Ancient Republics that came before him and in the modern Republics that came after.
Such a democracy Montesquieu pointed out must be small enough so that the people can assemble and more importantly small enough so that those who stand for election to office are familiar to and resemble and remain under the close scrutiny of the rest of the populace.
Montesquieu stressed a true democracy requires in all its ordinary citizens, an intense public spirit. Each and every citizen must be willing to devote considerable time and energy and expense, to public service, to long meetings, to elaborate discussions to important committee work and so on. And Montesquieu calls such virtue in the people the very principle of democracy -or as he puts it, the spring of democracy. And Montesquieu explains that this democratic virtue requires among the citizens a deep spirit of kinship, or fraternity.
And such genuine fraternity, he insisted, requires a homogeneity in the way of life of the inhabitants. He argued that only persons who share the same education, the same family mores, the same economic status, and the same religion can look upon one another with an authentic sense of brotherhood, sympathy and empathy. So virtue, he argues, is the love of equality, meaning the love of like for like, the love of and for a society that prevents sharp class distinctions, or pronounced diversity and the chief business of such a democratic community, he argues, is legislating this morality, defining its meaning. In this sense Montesquieu’s classic republicanism differs from the classical liberal tradition that was also very influential to the founders, especially so in the principles and ideals of the declaration of independence, as well as differing from the modern libertarian tradition as well. Another key difference between classical republicans and both classical liberals and libertarians is its lack of emphasis on natural rights and individual liberties. Classical republican liberty denoted the positive rights of citizenship, not the negative liberties of natural law.
Part II: American Republicanism
These distinctions are crucial when discussing the qualified classical republican vision of the anti-federalists.
Qualified because the anti-Federalists are by no means simply classical Republicans.
Just as Montesquieu reformulated the older model of classical republicanism from the more aristocratic to the more democratic, so too did the anti-federalists reformulate the Montesquieuian democratic republicanism with their own subtle distinctions. This anti-federalist republican vision would come to be known as American Republicanism.
Because the classical republican ideal even in its more democratic version was not simply embraced by the founders, including the anti-Federalists. It manifests a deep ambivalence about the classical republican ideal. Sometimes To be sure, leading anti-Federalists do speak in very classical sounding terms. Such as Brutus’ Essay #7:
We ought to furnish the world with an example of a great people who, in their civil institutions hold chiefly in view the attainment of virtue, and happiness among ourselves.
What most deeply distinguishes the anti-federalist outlook from the classical republican ideal in both its original, and its new Montesquieuian form, is the anti-Federalists tend to see politics as less a positive good, and more a necessary evil required to protect personal liberty.
The anti-Federalists were unclassified in the degree to which they were apt to see government as intrinsically dubious and even corrupting. Because they see humans as by nature, prone to use whatever power they have to seek more power, likely to be used to exercise exploitative control over others. As the writer who calls himself john DeWitt said:
The more we examine the conduct of those men who have been entrusted with the administration of governments, the more assured we shall be, that mankind have perhaps in every instance abused the authority vested in them or attempted the abuse.
Anti-Federalists shared with the Federalists a Republican vision that is much less communal, much more individualistic and commercial than the classical ideal. Their highest priority was the protection of individual rights and liberties. But the anti-Federalists contend that precisely in order to protect those individualistic rights and liberties, substantial ingredients of the old classical ideal in its Montesquieuian reformulation, remain essential. Aspects that would be abandoned, or lost in the constitutional order proposed by the Federalists.
As the Pennsylvania writer who calls himself a federal Republican puts it:
Whatever the refinement of modern politics may inculcate, it still is certain that some degree of virtue must exist or freedom cannot live.
They argue the fact that at the state and local level, government is less overbearing and domineering. Still more important, government at the state and local level, tends to involve the people more; to demand more from the people, thus keeping control in the people's hands, guarding against elite aristocratic tendencies. This popular participation in and thus control over the government is most widely activated through what Richard Henry Lee called:
The people's just and rightful control in the judicial branch
That is, through their service on civil and criminal juries. And the anti-Federalists warn that this proposed Constitution is going to contribute to a grave weakening of the People’s control over the judicial branch of the government by instituting a drastic diminution of the power of popular juries in America, which would mutilate what they consider perhaps the most important institution for participatory democracy.
To understand what the anti-Federalists are getting at, we must bear in mind an important historical fact about what the power of juries was in America at that time. Juries at the time of the founding had not only the right and power to determine matters of fact, in the case before them, but also the right and power to interpret the meaning of the law. And this was a power rooted in classical republicanism as well as the English tradition celebrated by Montesquieu, who interpreted the British Constitution as placing the judicial branch in the hands of the people In their supreme power of the popular juries. And it was above all, this power of the juries to participate in interpreting the law and even to overrule judge’s interpretations of the law that made juries such a key democratic check on aristocratic judicial activism.
Anti-Federalists foresaw that under the proposed Constitution, juries will lose the right to interpret the meaning of the law. Juries will be limited, they said to judge only the facts of the case before them… and they were right. They correctly warned this traditional Democratic power will be entirely handed over to unelected judges, who will thus become a kind of aristocracy dominating the judicial branch.
As John Mercer puts it:
The jury is the democratic branch of the judiciary and as such is even more necessary than representatives in the legislature. Why shall we risk this important check to judicial usurpation, provided by the wisdom of antiquity? It's by the attacks on private property through the judiciary that despotism becomes as irresistible as terrible.
Even worse in their view, the anti-Federalists see that these aristocratic federal courts are given under this kind of institution the right to overturn local democratic jury verdicts. Meaning jury verdicts will no longer be final.
This comes from Article III, § 2 of the proposed Constitution’s Cases and Controversies Clause:
The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution.
Of course, it’s not only the judicial branch of government that the anti-Federalists see as best kept under local popular control. Equally important, they argue is keeping the legislative branch under such control as much as possible. The anti-Federalists argue that at the state level, elected representatives are more truly representative and responsive to the people's will and for three major reasons:
First, the state legislators meet at a place [the state capitol] that is closer to the people and thus better observed by the people.
Second, the state legislators tend to live more among the people, and as a result are better known to the people in their personal lives and their character.
Third, the state legislators tend to mirror the people's own character. Here the anti-Federalists in effect articulate a specific theory of what genuinely democratic representation ought to mean.
Melanchthon Smith, the leading anti-Federalist in the New York convention, puts it this way:
The idea that naturally suggests itself to our minds, when we speak of Representatives is that they resemble those they represent, they should be a true picture of the people and sympathize in all their distresses.
Or in the words of Samuel Chase, who had been a leader of the revolution in Maryland:
A representative should be the image of those he represents. He should know their sentiments and their wants and their desires, he should possess their feelings, he should be governed by their interests, with which his own should be inseparably connected.
And the anti-Federalist said it's only such representatives, whom the people truly know as kindred spirits that the people will readily obey and follow with trust.
As Brutus says:
The confidence which the people have in their rulers in a free Republic arises from their knowing them.
No one expressed the critical byte of the anti-Federalists theory of representation better than an unknown Massachusetts writer who signed himself Cornelius:
The members of our state legislature are annually elected, they are subject to instructions. They are chosen within small circles. They are sent a short distance from their respective homes. They frequently see and are seen by the man whose servants they are. They returned and mix with their neighbors… see their poverty and feel their wants
And these anti-federalist quotes illuminate one final distinction worth noting between the Montesquieuian republic and the anti-federalists qualified republican vision. Because Montesquieu’s conception of local government was clearly a direct democracy where he expected the entire community to collectively turn up to discuss, debate and directly vote for each and every provision that would affect the lives of those people. Whereas, because the antifederalists have that focus on government as primarily a vehicle for the protection of individualistic rights in a way Montesquieu simply does not; and because the individual right to acquire property and engage in commerce are, to the federalists and anti-federalists alike among the most fundamental. They recognize the value of delegating that local democratic participation to a trusted individual to act on their behalf in the tedium of local government, freeing the rest of the community up to maximize their time and ability to make the most of those rights to property and commerce.
To close, I want to draw attention to a final “winner-driven” historical narrative.
Its widely agreed today that because the Federalist’s energetic scheme of government was adopted, their pretense that the Articles of Confederation were terminally ineffective must also be true.
I contend that precisely the opposite is true. If anything, the Articles demise was the result of their being too effective. The Federalist’s criticisms of the Articles tended to fit into one of three categories.
No coercive power to regulate commerce
No compulsory taxation
No provision for national security
Yet, because the Articles of Confederation were so successfully crafted to prevent the usurpation of all powers not expressly delegated— That rather than draft a few amendments, they decided it was easier to scrap the Articles and simply create another brand new system of government from scratch.
So kudos to the Second Continental Congress! Because regardless of one’s opinion about the particular form of government authorized by the Articles of Confederation- Anyone who favors limited government, constitutionalism, federalism or libertarianism; as well as the values of both classical liberalism and classical republicanism must appreciate the great skill and careful consideration it takes to create a system that so successfully imposed enforceable limits on government.
In this author’s humble opinion, The Articles of Confederation were the finest example of implementing government by consent since 1215 AD
Carthago Delenda Est.
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Tags: articles of confederation, federalist, antifederalist, constitution republicanism, liberalism, Roman Republic, American history, freedom hub, Jim Grapek, Charles Frohman