Saturday, May 25, 2013

Moderate Nationalists: Gouverneur Morris of Pennsylvania

Pennsylvania's other important delegate was Gouverneur Morris.  While Wilson was reassuring small states that large states would be just as quick to resist undue federal encroachments, Morris was making inflammatory statements like these:

This Country must be united. If persuasion does not unite it, the sword will. He begged that [4] this consideration might have its due weight. The scenes of horror attending civil commotion can not be described, and the conclusion of them will be worse than the term of their continuance. The stronger party will then make traytors (sic) of the weaker; and the Gallows & Halter will finish the work of the sword. . . . .State attachments, and State importance have been the bane of this Country. We can not annihilate; but we may perhaps take out the teeth of the serpents.

Or

"What if all the Charters & Constitutions of the States were thrown into the fire, and all their demagogues into the ocean. What would it be to the happiness of America."

Morris made these comments in opposition to small state calls for equal representation in the Senate.  On the other hand, he did not favor making the Senate proportional to population, either.  His proposed "compromise" was to have a Senate appointed by the executive and holding their offices for life!  Senators for life would probably live in several states over a lifetime and therefore not represent any one state.  On the other hand, when the Great Compromise was finally reached it was Morris (together with Rufus King of Massachusetts) who proposed to give each state an equal number of Senators provided they voted as individuals.  And at the end he even moved that no future amendment could deprive a state of equal representation in the Senate without its consent.

Morris favored ratification by convention instead of by state legislatures for the same reason as other nationalists -- that states lacked authority to ratify the Constitution, and that the Framers should appeal over the states to the people.  However, he took this idea further than any other nationalist, proposing a singe national ratifying convention instead of multiple state conventions.  Morris wanted to give the federal government power to regulate elections for the House but not the Senate, to enact bankruptcy laws, to have sole authority over treason and embargoes, and to interfere in states' internal policy in at least some instances, such as to forbid paper money.  He believed the federal government should be able to suppress a insurrection against state authority without waiting for the state's request.

On the other hand, he opposed a Congressional veto of state laws as "terrible to the states," and believed that the power of federal courts to strike down state laws conflicting with federal enactments as sufficient.  He even questioned whether it would be necessary for Congress to meet every year, since the public business might not require it.  (This may have been an attempt to strengthen the power of the executive).

Moderate Nationalists: James Wilson of Pennslyvania

Moderate nationalists were mostly from the large states of Virginia, Massachusetts and Pennsylvania.  The ones from Virginia having been covered, let us move on to Pennsylvania.  The leading delegate from Pennsylvania was James Wilson.  Wilson was a nationalist, but at the same time he sought to reassure states
that a strong central government would not mean the end of state governments.  So long as the states were properly restrained, there would be no danger of their being devoured.  If the general government did start encroaching on states, all, large and small, would join together in resisting the encroachment.  In order to conciliate advocates of state sovereignty, Wilson as willing to second a motion forbidding the general government form interfering with a state's internal affairs.

Wilson also supported a Congressional veto of state laws, saying that since it was not practical to define cases in which a federal veto was proper, it was safer to allow the federal government to decide when it was proper than the states.  He called the federal veto, "key-stone wanted to compleat (sic) the wide arch of Government, we are raising."

Like other large state delegates, Wilson to a states' rights view on the division of states. No state should be divided without its consent. If a majority in the state wished to divide, it should be allowed, but not if only a minority wished to divide. Allowing a political society to be "torne (sic) assunder without its consent" outraged him. He favored giving Congress the power to establish federal trial courts, cut canals, and charter corporations. Although the record is somewhat unclear, he appears to have favored federal authority to suppress insurrections against state governments.

But above all else, Wilson was the fiercest opponent of giving each state equal representation in the Senate. He believed nothing less than majority rule was at stake. Since all authority derived from the people, equal numbers of people ought to have equal numbers of representatives. "Are not the Citizens of Pena. equal those of N. Jersey? does it require 150 of the former to balance 50 of the latter?"  To the argument that all states are equal as sovereigns, he replied  that all people were equal and, in the state of nature, equally sovereign.  Just as the people gave up their sovereignty in submitting to a government, the states gave up their  sovereignty in submitting to a federation.  He even called unequal representation a "poison," contaminating every other branch of government.  Wilson's reason for opposing representation by states was that it would allow a minority to thwart the will of the majority.  To say that allowing the larger states to dominate carried the danger of aristocracy was absurd -- what danger of aristocracy could there be in government by the majority?  "Can we forget for whom we are forming a Government? Is it for men, or for the imaginary beings called States?"  He was even ready to see the Union split over this issue, saying it could never happen on better grounds.  As a compromise, he was willing to set the ratio of Senators at 1 per 100,000 population with the guarantee that each state would have at least one Senator.  Alternately, he proposed a system  like Massachusetts of the day, which increased representation by population, but gave less than the full proportion.  He even opposed sending the matter to committee and opposed the Great Compromise when it was proposed.  Although Madison does not say, one assumes that on the day the Great Compromise was reached, Wilson was one of the irreconcilables opposed to it.

Saturday, May 18, 2013

Moderate Nationalists: George Mason of Virginia

To the extent George Mason is remembered today, he is usually thought of as supporting state sovereignty because he ultimately opposed the Constitution and acted as an Anti-Federalist in the ratification debate.  However, during the Constitutional Convention, he comes across very much as a moderate nationalist.

Since the Virginians had discussed the Virginia Plan before the Convention began, Mason presumably had at least some role in preparing it.  He argued, "very cogently" that the federal government must have authority over individuals instead of just states, and for a revealing reason.  It would be unjust to punish states collectively, while authority over individuals would allow punishment of the guilty only.  He opposed the New Jersey plan for its lack of ordinary enforcement powers that left no alternative except military force:
The most jarring elements of Nature; fire & water themselves are not more incompatible that (sic) such a mixture of civil liberty and military execution. Will the militia march from one State to another, in order to collect the arrears of taxes from the delinquent members of the Republic? Will they maintain an army for this purpose? Will not the Citizens of the invaded State assist one another till they rise as one Man, and shake off the Union altogether. Rebellion is the only case, in which the military force of the State can be properly exerted agst. its Citizens. In one point of view he was struck with horror at the prospect of recurring to this expedient. To punish the non-payment of taxes with death, was a severity not yet adopted by despotism itself: yet this unexampled cruelty would be mercy compared to a military collection of revenue, in which the bayonet could make no discrimination between the innocent and the guilty.
To arguments that the people had hitherto resisted any increase in federal powers, he replied that what the people were resisting was not a stronger central government, but one under the present Continental Congress, which had no separation of executive and legislative powers, and a unicameral legislature not directly chosen by the people.  Increased centralization did not reduce the people's power; it merely transferred it from one set of agents to another.

He was skeptical of a federal veto of state laws, but not absolutely opposed.  He pointed out that the Congressional veto would mean that Congress would be constantly sitting to review state laws, while no state road or bridge could be built until Congress approved it.  Yet he said that he was not condemning the veto outright, but simply raising possible objections to it.

Mason was also the leading advocate of federal power to regulate the militia, so long as states could appoint the officers.  His reasoning was two-fold -- he wanted to avoid standing armies as much as possible, but he did not believe states would maintain their militias well enough to avoid the need for standing armies.  Fearing  that complete federal authority over militia discipline would be unpopular, he later partially backed down and proposed federal power over a tenth of the militia at a time.  He also believed the federal government must have authority to suppress rebellions against states because such rebellions might ultimately subvert the general government.  He favored giving Congress power to establish federal courts, cut canals but not charter corporations, and pass sumptuary laws, i.e., laws limiting excesses in conspicuous consumption.  (No one else took his call for sumptuary laws very seriously).

There were only a few signs at the Convention that Mason would ultimately see the Constitution as dangerously encroaching on the states.  He favored election of Senators by state legislatures, saying that states needed to be able to defend themselves against federal encroachments.  In this he differed from Madison, who thought that the only danger was state encroachments on federal power.  He also believed that states should be allowed to lay embargoes and tax imports in order to encourage domestic industry.  He served on the committee that proposed the Great Compromise and reluctantly agreed, on the condition that the House would have sole authority to enact money bills.

Yet Mason ultimately turned against the Constitution, saying that he would sooner chop off his right hand than sign it to such a defective document.  He did not specifically itemize his reasons at the Convention, but said he feared it would lead to either monarchy or aristocracy.  During the debate on the ratification Mason made his reasons for objecting to it public.  Most of these objections were to the structure of the federal government, rather than the extent of its powers.  However, he did mention fears that the federal judiciary would absorb the state judiciaries.  He also feared the "Necessary and Proper Clause" would allow Congress to grant monopolies, create new crimes, inflict severe and unusual punishments, and extent its powers so as to encroach on the states.  He ultimately feared that the Constitution would lead to a "total consolidation" that threatened to destroy the states.

Sunday, May 12, 2013

Moderate Nationalists: Edmund Randolph of Virginia

Virginia produced two other moderate nationalists, Edmund Randolph and George Mason.  Both contributed substantially to the Convention, but in the end neither would agree to sign the Constitution.  It should be noted that, although George Washington presided over the Convention, he had to act as a neutral arbiter and therefore did not take part in the debates.

Edmund Randolph.  Edmund Randolph at the time of the Constitutional Convention was Governor of Virginia.  He would later serve as George Washington's Attorney General.  Although the Virginia Plan is generally believed to have been developed by Madison, it was Randolph who introduced it at the Convention, and most of the delegates assumed the plan to be Randolph's. Randolp opened the main business of the Convention, arguing that the government under the ARticles of Confederation was fatally weak.  It could not maintain peace because states could break its treaties with impunity, nor could it effectively wage war because it was depending on the states to raise an army.  Its inability to tax or regulate foreign trade deprived it of any independent source of revenue and left American trade at the mercy of foreign protectionism.  It was not even clear whether federal law was paramount to state law, at it could be considered a mere creature of state governments.  Randolph then introduced the Virginia Plan to correct these defects.  The next day he went even farther, saying that no mere federal union or treaty would be sufficient, but that a supreme national government should be formed, although he disclaimed any intent to abolish state governments.

Randolph opposed the New Jersey Plan, and even said that the "federal" New Jersey Plan was insufficient compared to the "national" Virginia Plan.  In particular, the central government needed enforcement powers over individuals, while the New Jersey Plan only offered coercion of states.  Randolph called such coercion, "impractical, expensive, cruel to individuals."  Instead, he favored giving Congress power to maintain harmony among the states, set uniform rules and regulations for trade and naturalization, crush rebellion, and the like.  For any body to be entrusted with such powers, it must be elected by the people directly and be proportional to population.  He even called the Continental Congress a body of ambassadors rather than a true legislature.  He would have given the federal government authority to form federal courts and charter corporations, but not to legislate for all "general interests."  He favored federal authority over the militia, with states appointing officers, and federal power to intervene in rebellions against state government, but only if the states requested the intervention.

Like other large state delegates, Randolph opposed giving states equal representation in the Senate.  He was the one who proposed that the Convention "adjourn" when the large and small states deadlocked on the issue, although he was quick to qualify the statement with the assurance that he meant only to adjourn for the day, not permanently.  The purpose of the adjournment, he said, was for small states to propose some form of conciliation, or, if they would not, for large states to take unspecified "necessary measures."  Like the others, Randolph eventually agreed to equal representation in the Senate, but threatened to reconsider if the Senate were allowed to originate money bills.  Unlike Madison, Randolph never spoke up for a federal veto of state laws.

Despite his general nationalism, Randolph ultimately did not sign the Constitution, although he did not commit himself to opposing its ratification.  Among his objections he listed the lack of a more definite boundary between federal and state powers and the federal government's authority to intervene in a state insurrection on the request of the state executive, instead of requiring the legislature to make the request.  During the ratification debates, Randolph planted himself firmly on the fence, refusing to come down on one side or the other until the Virginia ratifying convention, when he came out in favor of ratification.

Wednesday, May 8, 2013

Moderate Nationalists: James Madison

The moderate nationalists were more numerous than the extreme nationalists, and played a larger role in the Convention.  Most were from the large states of Virginia, Massachusetts and Pennsylvania.  Surprisingly, given his later association with Jefferson, James Madison was probably the third most nationalistic of the delegates, after Read and Hamilton.

Madison did not advocate abolishing state governments, but he did argue that he saw no reason  why the people would be any less free as citizens of one great republic than thirteen small ones.  The biggest objection, he believed, against allowing the federal government to assume all local authority was not that it would be oppressive, but simply that so much authority would be too much for it to handle.

Madison had a taste for reasoning that others might consider paradoxical.  It was generally assumed at the time that popular government was dangerously prone to faction, and that it could only succeed in a small territory.*  Madison proposed just the opposite -- that popular government would be more stable over a large territory because dangerous factions would likely only occur in one small area at a time.  When small states feared that a strong central government would be dominated by large states, Madison answered small states needed a strong central government to protect them from large states and, indeed, that the stronger the central government, the less they would have to fear from large states.  He made a similar argument in favor of the Virginia Plan over the New Jersey Plan.  Small states were better off giving the federal government direct power over individuals than power to coerce states.  Power over individuals would obviate the need to coerce states.  And if the federal government did coerce states, it would be more likely to take on small ones than large.

Madison was, with James Wilson, the fiercest opponent of giving states equal representation in the Senate.  He argued that not even small states considered proportional representation in both houses unjust, only unsafe.  States did not need equal representation in the Senate because the government would act on individuals instead of states.  It would be unjust because it would allow a minority to defeat the majority.  As a compromise, Madison proposed to have representation in proportion to population when the government acted on individuals directly, and give each state an equal vote when the general government acted on states as units.  Since he did not believe the general government would ever act on states as units, this concession was meaningless.  Madison did not record what he did in the private conference during which the Great Compromise was reached, but he did say that some of the representatives of large states were ready to see the convention fail rather than yield on this point.  Given his general record, one suspects that Madison was among their number.

Madison was also the leading advocate of giving Congress a veto on all state laws that contradicted federal law. He believes such a veto was necessary for the federal government to protect itself against state encroachments. Like giving the central government direct power over individuals, Madison saw the veto as a way of avoiding the need to use force against a state. Merely making federal law supreme over state law would give the power to the courts to strike down incompatible state laws, but Madison believed the process would be too slow and cumbersome.**  Many people raised the obvious objection that forcing state laws to be approved by Congress would create undue delays, especially in the case of emergencies. Madison proposed some "emanation" of federal power into the states to give temporary approval in cases of emergency.  He did not say what form this "emanation" would take.

Madison also favored giving Congress power to regulate federal elections, charter corporations in cases in which the states were not competent and establish a national university.  He favored federal control of the state militia and federal appointment of militia generals (though not lower officers).

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*The classic example was Rome, in which popular government did, indeed, flourish so long as it covered only a small territory, but ran into serious problems when it became too large.
**This fear has proven essentially sound.  Many times, even to this day (say, with marijuana laws), states have made laws that contradict federal law.  The federal government has had little middle ground between allowing the act of defiance to stand and the use of force.

Saturday, May 4, 2013

The Constitutional Convention: Extreme Nationalists

Very well, then.  Let us begin our taxonomy of delegates to the Constitutional Convention with the extreme nationalists, i.e., the delegates who wanted either to abolish state governments or to reduce them to administrative departments of the federal government.  This was an extreme view, so, unsurprisingly, there were not many such delegates, only two.  Also unsurprisingly, one was Alexander Hamilton.  The other, even more extreme, delegate was

George Read.  George Read was the only delegate
to go so far as to advocate abolishing state governments altogether.  Furthermore, although opposition to a stronger central government initially came from small states, Read was from Delaware, the smallest state present. Read comes across as a puzzling figure.  When he first spoke up, it was to say that Delaware delegates had been forbidden to accept any plan that did not continue equal representation, and that his delegation would be forced to withdraw if such a plan were adopted.  But when he next spoke, it was with a diametrically different opinion.  "Too much attachment is betrayed to the State Governments," he said.  "We must look beyond their continuance."  He believed that distinct states were a source of discord, and that the only cure was to unite in a single society.  He held the view (also voiced in more moderate terms by Madison) that any system that maintained state autonomy would be dominated by large states, and that the stronger the central government, the less small states would have to fear.  While others complained that the Virginia Plan was too centralized, Read said that on the contrary, "He should have not objection to the system if it were truly national [unitary], but it had to much of a federal admixture in it."  He even opposed federal guarantee of the states' territory because it abetted the idea of distinct states.    His role diminished when it became clear what form the new government would take.  Once the Great Compromise was adopted, he again became a small state man, pushing for more representatives for Delaware and becoming alarmed when equal representation in the Senate was threatened.  But he showed a flash of the old nationalist when he opposed requiring representatives to have an extended residency in the state they represented.  "Such a regulation would correspond little with the idea that we were one people."

Alexander Hamilton.  Hamilton actually comes across as less of a nationalist than Read.  He disfavored abolishing states, but only because public opinion would not allow it.  Instead, he wanted to reduce states to administrative units ("corporations"), which would be necessary to administrative efficiency.  He favored indefinite authority for the national legislature, because, if limited, states would subvert it, just as local governors subverted the central authority of the Roman and Persian Empires.  Unsurprisingly, Hamilton favored proportional representation in both houses and regarded equal representation in the Senate as a "destructive element" that "shocks too much the ideas of Justice and every human feeling."

Unlike Read, Hamilton actually presented a plan for unitary government.  Under Hamilton's plan, the national legislature would have power to pass all laws whatsover," and all contrary state laws would be "utterly void."  In order to prevent states from attempting to defy federal law, state governors would be appointed by the general government with an absolute veto over state legislation.  State militias would be under the sole and exclusive direction of the central government, which would also appoint all militia officers.  Not too surprisingly, only Read endorsed Hamilton's plan.  The others did not so much reject it as ignore it.  Nor did Hamilton expect his plan to be adopted.