Commentaries on William Hogeland and Akhil Reed Amar

Over at William Hogeland’s blog, there’s been a series of posts on Akhil Reed Amar’s recent talk* on the Jacksonian constitution. Both the talk and the posts are well worth reading for the full context of what I’m responding to here. Essentially, Hogeland takes a well-directed aim at the liberal consensus surrounding the adoption of the Constitution, pointing out how bitter conflict really defined early American politics in a way that a history which venerates the ‘Founding Fathers’ obscures. While I don’t agree with all of the class conflict aspects of Hogeland’s work, there are a few points that I wanted to expand on myself.

 Like Hofstadter, Amar turns certain unarguable and far from uninteresting assertions — that the convention was presided over by a military figure, met in secret conclave, and went beyond its express instructions — into elements of a paranoid conspiracy theory

I’m teaching a course on the Intellectual Origins of the American Revolution this quarter, and if there is one thing that really shines through the sorts of texts on which historians like Bernard Bailyn rest much of their ideological history/history of ideas, it is the fear of a military character. The fear that military discipline and the spoils of war can corrupt a republic wass scarcely a new idea in political thought. When we think of the Roman pseudonyms adopted by country party men and American revolutionary essayists, those who stood up to military demagogues loom large.

All of which is a long way of saying that while there are many parts of Antifederalist writings that seem paranoid, the fear of a military man turning republican government into a despotic or tyrannical one was hardly without foundation. Even if we account for the widespread popularity of Washington at the time, no-one in America would have disagreed with the proposition that not every general was a Cincinnatus. Antifederalists had a tough case in making their argument because many of their arguments were of necessity abstract. But on the fear of military men being natural candidates for President, they were unquestionably right – Jackson, Grant, Eisenhower all turned great military victories into personal power.

“They put the thing to a vote.” This is the big moment, really the climax of the speech. And from here I’ll stop giving time markers, because the thing I’d like to say responds mainly to the narrative that starts here. He’s saying (triumphantly, as if delivering the coup de grace): The ratification process was democratic, so the Constitution it ratified was structurally and intentionally democratic in the way he’s been saying it was.

This, on the part of Amar, seems to be a classic case of reading the present (or at least reading future events) back into the past. What was legitimate about the vote that ratified the Constitution? Under the terms of the government of the United States at the time – heck, under the terms under which the Constitutional Convention met – the unanimous approval of the 13 states was necessary. Yet even the Constitutional Convention failed to meet this criterion (Rhode Island never showed up), let alone the ratification standard of 9 states agreed on by the convention delegates.

Thus Amar’s argument that ‘the fix wasn’t in’ really doesn’t stand up to scrutiny. The process of ratification itself was a fix. It was a very clever fix, granted – no Antifederalist could hope to argue against popular conventions and not seem paranoid. Just because a loyal opposition developed very soon after ratification does not mean that the process of ratification shouldn’t be considered with an asterisk.

And even then, the convention process was carefully manipulated. While some historians seem to hold up the ratification debate as an exemplar of rational discourse, contemporaries certainly did not see it this way. Witness Antifederalist complaints about newspaper editors refusing to print their essays. Witness complaints about postmasters refusing to distribute Antifederalist literature through the postal network. Or, witness Philadelphia Federalists dragging members of the General Assembly kicking and screaming to the Pennsylvania State House, then locking them in the chamber, to make sure that a ratification convention could be called before the Antifederalists themselves had a chance to develop an effective political organization. A ruthless manipulation of fortuitous circumstances helped Federalists win the ratification debate.

All of which is to say that the process seems legitimate because it succeeded. But I can imagine a number of counterfactual histories in which the Constitution does not receive popular consent. What if it had been ratified by popular referendum? What if ten, or eleven, or twelve states had been deemed necessary for ratification? After all, Virginia and New York ratified in large part because 9 states ratified before they came to a vote. Process and principle are two different, if related things – and throughout the years of the Revolution, those who had most political success trod a careful balance between the two.**

And he says “we didn’t have time” to put the Declaration, by contrast, to a vote: war made opposition to independence impossible; opposing independence just got you tarred and feathered; nobody who opposed independence came to a position of authority in founding America.

Huh? John Dickinson? More important: Robert Morris? What on earth is he talking about here?

Or, perhaps more important still, Tench Coxe, who actually went and took British protection in New York and Philadelphia, yet still managed to become Hamilton’s assistant in the Treasury Department in the 1790s. This is important, because it comes back to the legitimacy of the Federalist administration of George Washington. Leading Federalists were men of the British Empire – often foreign-born or foreign-educated, and many with somewhat dubious connections in the 1770s and 1780s (take James Wilson or Alexander Hamilton defending loyalists, for example). When people accused Federalists of Anglophilia or an unnecessary support they had concrete examples they felt they could point to.

Amar’s claim that the popularity of the Constitution is demonstrated by the repeated election of Federalists (under a 1788 definition) to national office also smooths over incredibly bumpy parts of US history. The way he presents this in his talk ignores the way that many Federalists move to the Republican Party in the 1790s in horror at the way the Washington administration conducts its business.

Sure, on the most general level, you can say that Republicans supported the Constitution as much as the Federalists did. Their difference wasn’t over the Constitution, but over interpretations thereof. Such an argument, though, surely owes more to myth-making and a desire to write conflict out of the early years of the Republic rather than particularly forwarding our understanding of the past. The way in which Antifederalists and Republicans meld critiques of the Constitution and extra-governmental political mechanisms (which, of course, have a longer heritage in 1790s America than the new-fangled Constitution) into the operation of the political system help define the operation of the Constitution in a very different way to that envisaged by Washington, Adams, or Hamilton. To pretend that this can all be subsumed into ‘supporting the Constitution’ strays dangerously into an unhelpful consensus history.

As I said earlier, I don’t necessarily agree with Hogeland on some of his arguments relating to the importance of class conflict in the founding era. Yet I share his concern that conflict is so frequently written out of popular narratives of the Revolution – or that at least, where conflict is present, it’s a disagreement among friends. It’s a key theme of my work that process is important in establishing governmental norms. But it’s also crucial to recognize that there are always competing definitions of what is ‘democratic’ or ‘representative’ or ‘legitimate’ in any polity. That, too, is important in looking at Amar’s talk – what many Jacksonian scholars consider to be innovations of the 1820s or 1830s seem to me to be prevalent in the 1770s. But that is a blog post for another day…

*Incidentally, the University of Oklahoma’s Institute for the American Constitutional Heritage seems to have done a tremendous job in putting together a program of speakers for their event, even if I agree with large parts of Hogeland’s critique.

**This is one area where I disagree strongly with Hogeland. He talks about the May 1, 1776 by-election in Pennsylvania, and frames it as a ‘referendum on Independence’. He doesn’t, though, account for the competing legitimacy of the committee system in Philadelphia at the time, nor does he take into account the fact that elections for the PA Assembly had a more restrictive franchise than the committee system (at least that’s my reading of it, I’m happy to discuss this in comments if people wish to disagree). By May 1776, popular faith in the Assembly to represent popular opinion had evaporated to a greater or lesser extent, and there was an alternate power structure in place. Again – where process and principle are not the same thing, and straddling the two carefully leads to the greatest success.

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About Ken Owen

Assistant Professor of History, University of Illinois at Springfield
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