The return of the anti-federalists

NEW YORK  —  To be an American is to argue about what it means to be an American. Even at the founding, we had almost nothing in common. We don’t share a national origin, a religious denomination, or a racial profile. All we have are ways of defining “we, the people”, those who, according to the Constitution, are the locus of sovereignty in a state conceived as the servant rather than the master of society.

That is why the Constitution has always been the baseline of political controversy here. Since its adoption, through the Civil War and Reconstruction (when it was reinvented by the three “freedom amendments”), to the recognition in the twentieth century of unenumerated rights, the Constitution has structured Americans’ political discourse. So, it is striking, and probably dangerous, when an incipient ideological consensus channels the Anti-Federalists, who opposed replacing the post-independence Articles of Confederation with the Constitution.

And such a consensus has in fact been emerging in recent years. Influential figures on both the left and the right now question the constitutional settlement of 1787-90, and, more important, repudiate its results.

On the left, the Constitution has always been viewed as the Thermidor of the American Revolution, the moment when the radicalism of the people “out of doors”, expressed in the state constitutions written and ratified after 1774, was thwarted by the overthrow of the Articles. Charles Beard’s An Economic Interpretation of the Constitution of the United States codified this position in 1913, and it has since been echoed and amplified by countless scholars, journalists, jurists and others.

In the same intellectual precincts, it has become a commonplace to claim that the constitutional settlement was a counterrevolution meant to preserve slavery, not a device that might expand the demographic scope of “we, the people”. And James Madison, the Constitution’s principal architect, supposedly set out to prevent majority rule, not enable it.

And now the right has reached similar conclusions. The new conservative supermajority on the Supreme Court is willing to treat the United States as a diplomatic compact between sovereign states, a polity akin to what the Articles of Confederation permitted. This year, the Court ruled that the federal government has no authority to impose vaccine or test mandates for companies with 100 or more employees, or to compel (or even encourage) any kind of transition from coal-fired power plants to alternative energy sources.

Even more alarmingly, the Court will consider Moore v. Harper, giving it an opportunity to test (and probably approve) the novel legal doctrine of an “independent state legislature”  —  a legislature that may ignore state courts, Congress, and the Supreme Court itself in drawing electoral maps or appointing state electors in presidential contests.

Echoing through these decisions is the legacy of John C. Calhoun, the pro-slavery firebrand who insisted that states could “nullify” federal statutes that interfered with their “domestic institutions”. The Court’s new majority is clearly bent on dismantling federal powers, in effect returning the US to the stage of political development that preceded the Constitution.

Both left and right justify their repudiation of the constitutional settlement on the grounds that it countermands democracy. While the left typically cites the Electoral College and the Senate as egregious examples of the founders’ anti-democratic intent, the right now focuses on the overreach of executive agencies, the “administrative” or “deep” state that supposedly runs roughshod over states’ rights and frustrates the sovereignty of the people. Either way, the Constitution is viewed as the main impediment to majority rule and thus to democracy.

Is it? What about the political and intellectual legacy of Frederick Douglass, Angelina Grimké, Abraham Lincoln, Thurgood Marshall, and Theodore Weld (among many others)? All of them argued that the Constitution was a moment on a continuum that began with the Declaration of Independence and its astonishing insistence on the “self-evident” truth that “all men are created equal”.

Even Madison never wavered in his commitment to majority rule. He insisted that it was the sine qua non of popular, republican government, even as he recognised that majorities could be as tyrannical as any despot, and even as he contemplated a future in which most citizens would be wage laborers with no stake in preserving the rights of property.

This was remarkable, given that Madison, like all his contemporaries, believed that liberty was inconceivable in the absence of property rights. But he also believed that liberty could not survive the eclipse of equality. The “two cardinal objects of Government [are] the rights of persons and the rights of property”, Madison observed to Thomas Jefferson, and every previous republic had failed because it could not, or would not, balance these rights. “In all the Governments which were considered as beacons to republican patriots & lawgivers, the rights of persons were subjected to those of property. The poor were sacrificed to the rich.”

Armed with this insight, Madison was determined to write a Constitution that would enable popular, republican government to prevail and eventually give rise to a polity in which all individuals were not just created equal, but were treated equally as well. And while this undeniably original intent has been largely forgotten under the neoliberal dispensation of the last 40 years, it abides. It tells us that property rights must never be sanctified at the expense of persons, and that democracy must never be reduced to majority rule. The exercise of state power must be justified by the consent of the governed, not by the power of numbers (otherwise, the American South under Jim Crow would be considered a model democracy).

Madison’s intellectual heirs found ways to read his handiwork as an instrument of liberation. Anti-slavery stalwarts like Douglass and Lincoln, and abolitionists like Weld and Grimké, refused to view the Constitution’s infamous “Three-Fifths Clause”, which determined how slaves would be counted in apportioning congressional representation, as an immutable brand of inferiority. Rather, the clause was an invitation to treat African-Americans as “Persons”, a word implying the rights and privileges held by white inhabitants.

Madison’s intellectual heirs also understood that the Constitution authorised the creation of something more than an ensemble of sovereign states. Despite their many political differences, and often disagreements, they regarded the Constitution as perfectly consistent with the emancipatory promise of the Declaration of Independence. So should we.

James Livingston, professor of History at Rutgers University, is the author of six books, including “Pragmatism and the Political Economy of Cultural Revolution, 1850-1940”, and the forthcoming “The Intellectual Earthquake: How Pragmatism Changed the World, 1898-2008” (University of Chicago Press). Copyright: Project Syndicate, 2022. 

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