In yesterday’s blog I related the founding generation’s assumptions regarding the necessity of virtue in stable republics. Many conservatives today believe our early years after Independence was an idyllic era of strong private and public virtue. Some tend to disbelieve the 1787 Constitution was necessary. Resting on that belief, the same conservatives look about today, see nothing but corruption of public virtue, and throw their hands up in despair of ever returning the US to freedom.
Contrary to common belief, the first dozen years after Independence were something of a governing and political mess.
Right out of the chute in 1776, the former colonial Americans did not bear the burden of self-government very well. While few had doubts during the horrible war that America would triumph, by the mid-1780s, men saw little but “evils and calamities ahead.” In his address to Harvard in July 1787, John Quincy Adams spoke of this critical period when the whole country was groaning under the intolerable burden of accumulated evils.
The spirit of common cause in 1776 gave high expectations of what America would be once the fighting stopped. These expectations largely failed to materialize. From our vantage point over two hundred years later, the Revolution was a glorious success. We beat the British. What was the problem? Answer: We had largely failed to establish truly free governments. Republicanism drifted so far into democracy that rights of all sorts were at risk.
The parties that developed after the war were not those of the people against royal authority, magisterial power, Tories, or country against the court; they were instead parties among the people themselves, each aiming at its own aggrandizement. Where Great Britain perverted its power, America was perverting its liberty. This should sound familiar, for America 2016 faces similar problems from factionalism caused by far too much of the popular element.
An excess of power in the people was leading not simply to licentiousness but to a new kind of tyranny, not by traditional rulers, but by the people themselves. John Adams termed this a theoretical contradiction, a democratic despotism. State legislatures that were as equally and fairly representative of the people as any in history, often confiscated property, hatched paper money schemes, tender laws, and regularly suspended the rights of creditors.
Within a decade after Independence, raw majoritarian power was fast upending the tenets of the Declaration. The American Revolution was in serious trouble. Free government, that happy condition wherein government respects and protects the unalienable, Natural Rights of the nation, and makes no law without its consent, was under assault. In one of his Phocion letters of 1786, Alexander Hamilton asked, “Have the people, or those to whom they have delegated the legislative power, the right to suspend, supersede, or render void by extemporary decrees, the established standing laws by which the payment of debts were secured?”
The people’s will as expressed in their representative legislatures and so much trusted throughout the colonial period suddenly seemed capricious and arbitrary. Laws were in constant flux. This lack of “wisdom and steadiness” in legislation, said Madison in 1786, was “the grievance complained of in all our republics.” Laws had become so profuse and complicated that, as one Vermont minister charged, the very means appointed to preserve order had become the source of irregularity and confusion. Few laws enacted by one legislature survived unchanged by the next.
Thomas Jefferson warned in 1783 that “all the functions of government, legislative, executive, and judicial, were ending up in the legislative body.” Governors were mere ciphers almost totally dependent on the legislatures. State legislatures interfered with the judiciary by reversing court decisions, judgments, staying execution after judgments, and even prohibiting court actions regarding land titles and private contracts.
Such vices actually sprang from the emergent nature of American society, and therefore brought into question the fundamental principle of republican government, that the majority who rule in such governments are the safest guardians of public good and private rights. The people, it seemed, were as capable of despotism as any prince; public liberty was no guarantee after all of private liberty.
Only a minority can be interested in preserving property rights. Licentiousness leading to anarchy was a comprehensible abuse of republican liberty, but the questioning of majority rule shook the foundations of their republican experiments. The pressing constitutional problem was not really the lack of power in the state legislatures, but the excess of it – popular despotism.
Nevertheless, we were encouraged to obey our elected legislatures, right or wrong, contending the only remedy for abuses was new elections.
Reread the last sentence above. After two hundred and forty years of independence, it stands to reason that Americans would have the hang of this thing called self-government, yet like our early republican forebears, most of us believe that elections alone can restore free government.
Fortunately, there were just enough statesmen from the several states in 1787 to face our national problems head-on. The foundation of their new system rested on the consent of the people, yet the operation of their system was not limited to it. Security of our unalienable rights under the Constitution did not rely on a virtuous citizenry; it relied on the separation of powers. While no law could pass without approval from the people’s representatives, a senate of the states stood by to stymie and cool the expected, wild bills from the House.
America has endured a popularly derived congress for over a hundred years. In order to possibly restore free government, it is long past time to re-federalize congress. We must press for repeal of the 17th Amendment, which will never be proposed by those who profit so well from the existing, corrupt system.
We are the many; our oppressors are the few. Be proactive. Be a Re-Founder. Join Convention of States. Sign our COS Petition.
Wood, Gordon S. The Creation of the American Republic 1776-1787. The University of North Carolina Press, 1969.