It is helpful to get a good grasp of two questions: how did the
founders generally see this debate and what did the overall political culture support? To begin with, federalist values ultimately
counted on free consent, as stated in an earlier posting, not only in terms of
joining the federated union, but in meeting the responsibilities upon which
such a union relied.
But one
cannot dismiss the level of social pressure that people were under when
federalist ideals were dominant in the political culture to fulfill those
responsibilities not to mention the proclivity to enact supportive laws. A noted scholar, Jack Rakove, writes of how
government straddled that line between individual prerogatives and commonwealth
concerns:
Most important, freedom of conscience
becomes the quintessential and paradigmatic liberal right. It goes further than
most of the common-law rights simultaneously recognized in the various
Revolutionary-era bills of rights. Those rights – even those relating to search
and seizure – do not suppose that our activities lie completely beyond the
purview of public authority. They suppose only that when the state acts, it
must be able to demonstrate its basis for doing so, and then must conform to some
set of established norms in carrying out its lawful duties.[1]
In
short, the writers and those who voted to ratify the original constitutions of
this nation, both at the state and national levels, did not believe in
inalienable – meaning unobstructed or undeniable – rights. The phrase in the Declaration, “endowed by their Creator
with certain inalienable rights, among them life, liberty, and the pursuit of
happiness...” really refers to categories of rights; for example, the right of
free speech falls under liberty. Liberty itself is inalienable, but free speech
is not, as in the often-cited example that you don't have the right to yell
fire in a crowded theater.
The only
restriction placed on government on limiting a right is that government must
base such restraints on a legitimate state interest, such as to “secure
domestic tranquility” (stated in the Preamble
to the Constitution).
Relating
to this concern, the founders held the federated goal to establish a republic. Structurally, republican government can be
defined as a government that is composed of representatives of the people. But culturally, republicanism demands
civically inspired qualities which are characterized by certain
attributes. The argument is that
federalist governments allow the polity to meet the demands associated with attaining
these attributes.
What are
these demands? The first is structural
in nature. Government should be small to
guarantee a more personal approach to public policy. This was furthered by the development of
covenants and compacts calling on personal commitment and securing a palatable
liberty. One can intuitively see that
having the “smaller” state governments addressed this demand (more on this
below).
The
second demand is that resulting governmental entities, at a given level and
given authority, will be treated as equals. But the trade-off is: each has responsibilities to the union, such
as participating in the processes to achieve the union’s purposes. Therefore,
they all have rights and duties. As such,
given the moral basis of the promissory agreement, fulfilling the prescribed
duties and respecting the rights of others takes on a moral character.[2]
The next demand, as stated above, the
founders thought in terms of alienable, not inalienable, rights. To add a word
on this demand, government, under federalist thought of that day, had a legitimate
role in controlling passions such as gluttony, jealousy, salaciousness, and other
physiological drives. An enemy of
liberty, it was believed, were those passions that experience has demonstrated
to be self-destructive if uncontrolled. Again,
the only caveat is that the state cannot be capricious in its demands of the
citizenry.
In short, a lot of federalist
politics in our early history is about the boundary between legitimate and
illegitimate exercise of governmental power in what would nowadays be
considered the personal aspects of life. It was believed that since laws were the
product of democratic processes, these processes served to protect individual
rights – the very people who selected the law-makers, had to live by the laws
those law-makers made.
Gordon
Wood does point out that this reliance on representative government during the
years between the Declaration and the
Constitution did become abusive. In some cases, the “majority” was trampling
property rights and culminated in Shay’s Rebellion. (an uprising in which poor
farmers wanted to avoid paying taxes). At
that time, therefore, there was a strong, almost radical, preference for
collectivism among many Americans.[3]
This rebellion was one of many events that
spurred the calling for the 1787 Constitutional Convention that resulted in our
current national constitution. But it is a mistake to see this turn as a
complete undoing of communal biases of the Whigs in favor of individual
property rights and other individual rights. It encouraged only a scaling back from
the more radical stand that some Whigs promoted and this illustrates the
diversity of views during those late eighteenth century years.
But
responding to a more widespread view, the founders hit on a new model. They saw
the problem for maintaining small governing areas an ideal with innate
problems. While smallness allowed for more personal politics, they also were
subject to dominating factions or moneyed and/or propertied interests
tyrannically controlling political affairs – the “company town” syndrome. Elazar reports that Madison reacted to this.
Elazar
writes: “The interdependence of the
national and state governments was to ensure their ability to check one another
while still enabling them to cooperate and govern energetically. In the words
of Publius, they advocated a
republican remedy for republican diseases.”[4] To avoid a tyranny of a domineering faction
or factions, therefore, the same federalist model was applied to a larger
configuration and a non-centralized system was created.
It was
neither a decentralized nor centralized system, but a non-centralized system.
The solution came as close to the demand for personal interaction and
respecting smaller entities as possible while incorporating the benefits of a
larger political arrangement. They
created the pre-Civil War federalist model which sustained a significant level
of sovereign power at the state level while creating a central government with
national powers.
With
this new format, a central assumption was made regarding the protection of
liberty and individualism. That is, there is no central or single power, but several.
The result is a system of checks and balances through distributed powers. With a strong allegiance to communal concerns
while furthering the rights of individuals, American republicanism received a
strong foundation. Even in the
post-Civil War arrangement, this description held for many years.
[1] Jack Rakove, “Once More into the Breach: Reflections on Jefferson, Madison, and the
Religion Problem,” in Making Good
Citizens: Education and Civil Society, eds. Diane Ravitch and Joseph P.
Viteritti (New Haven, CT: Yale
University Press, 2001), 233-262, 247.
[2] Daniel J. Elazar, American Federalism: A View from the States, (New York, NY: Thomas
Y. Crowell, 1966) AND Daniel J. Elazar,
“How Federal Is the Constitution?
Thoroughly,” Readings for classes
taught by Professor Elazar (Steamboat Springs, CO: National Endowment for the Humanities
Institute, 1994), 1-30. A booklet of
readings prepared for an institute for teachers. AND Daniel J. Elazar,
“Federal Models of (Civil) Authority,” Journal
of Church and State 33, (Spring, 1991):
231-254 AND Donald Lutz, The Origins of American Constitutionalism,
(Baton Rouge, LA: Louisiana State University Press, 1988).
[3] Gordon S. Wood, The
Creation of the American Republic 1776-1787, (New York, NY: W. W. Norton
and Company, 1998).
[4] Daniel J. Elazar, “How Federal Is the
Constitution? Thoroughly,” 21.
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