For those who know the back story, it is kind of odd that you can go to our nation’s capital, and there visit both the Washington Monument and the Jefferson Memorial. After all, the two men were political adversaries, on opposite sides of the aisle, and this was before that center aisle was even built.
But in another sense, this is just the way it ought to be, in that it helps us see how nations actually form in real life—which is to say, they do not form on the drafting tables of the Big Thinkers, especially including John Locke. Locke gets to chime in, of course, but that is just a piece or two in a five-hundred piece jigsaw puzzle.
All nations have unwritten constitutions, including those like ours that have written ones as well. For an example of an unwritten “requirement,” there is nothing in our Constitution that requires us to have a two-party system, but a two-party system developed organically here anyway, from the very beginning. The structural logic of our Constitution does encourage a two-party system, but does not mandate it. So in a parliamentary system, all the horse trading is done after the election, and a government is formed, sometimes in surprising alliances. In our system, all the same horses get traded, but it is done before the election, within the primary politics of the two respective parties.
In the early years, before the Constitution was ratified, the two factions were the Federalists and the Anti-Federalists. After ratification, these respective sympathies took shape in the two political parties, the Federalists and the Republicans. Washington was a Federalist, and John Adams was a Federalist, and Thomas Jefferson, our third president, was a Republican. But don’t be misled by the names. These Republicans were not the same as the party that formed at the time of Lincoln, although they are helpfully called by the same name. These latter Republicans came into being after the Whigs blew up. Still with me?
In other words, political parties can come and go, but there are always, on average, two—give or take a Bull Moose.
Back to the Founding
The Federalists wanted a strong national government, and the Anti-Federalists were jealous for the preservation of state sovereignty. In this regard, the formation of the Constitution itself was a Federalist victory—in that they wanted a constitution that closely imitated the English constitution, which they got. At the same time, the Anti-Federalists did us all a big favor by making it necessary to add a Bill of Rights in order to secure ratification. The Constitution, as we received it at the Founding, was therefore a compromise document—a Federalist document, with Anti-Federalist suspicions folded into it.
And yet nevertheless, after ratification , the Republicans continued to be wary of centralization, and jealous of states rights, and that division continued down to the War Between the States—when that particular debate went to the next level.
One of the more helpful historical exercises I like to work through is that of trying to identify where I would have landed in past controversies. This is of limited use when thinking about the Athenians and Persians, or the Romans and Carthaginians, but can still be surprisingly helpful. Chesterton does this with great effect in The Everlasting Man, and so we can still understand that Carthago delenda est. But when it comes down closer to our time, this exercise applied to our earlier history can really help you sort out what is actually going on now.
The Constitutional Convention itself was irregular, meaning that there was no provision for any such thing under the Articles of Confederation. They just did it. At the same time, it was done decently, through duly appointed representatives, and the results of their proposal did not take effect until nine of the thirteen states ratified it, in a straight line vote. It was not a coup. At the same time, Anti-Federalist Patrick Henry was not imagining things when he famously “smelled a rat.” There were certainly machinations.
But these things are complicated. When Shays’ Rebellion erupted in 1786, it had to be suppressed with private financing because Congress under the Articles of Confederation did not have the wherewithal to take care of it. But also, at the same time, anybody who reads through the details of that rebellion needs to grant that the irate farmers were not imagining things—they were being mercilessly worked by the system.
So if you have a simplistic white hats/black hats approach to history, you are going to have trouble. Jefferson was wrong in his sympathies for the French Revolution, and his appeal to “government by reason,” but he was right about that government being best that governs least. Adams was right about the British constitution, but the Alien and Sedition Act was a piece of work. Jackson represented the rising tide of populist individualism, which did a lot of damage, but he was right about not wanting a central bank. And so on.
And Jefferson was an anti-nationalist, but his decision to go through with the Louisiana Purchase was a nationalist masterstroke. Alexander Hamilton was no doubt pleased as punch. People are not ideology units. People are people.
Because Man is Sinful, Every System Can Be Abused
And these people who are people are also sinners, which complicates things even further.
The Federalists wanted a constitution like the English constitution, with George Washington reckoned in that number. But Washington had been the leader of our fight against British tyranny, which had been imposed on the colonies in spite of the protections promised by the English constitution. In other words, the Americans were fighting to regain their rights as Englishmen, and the Englishmen who were fighting them were engaged in the task of trying to take them away. In other words, Washington thought that the system was good, and worth fighting for, even though the official guardians of that system had betrayed it. Kind of like now.
There are many details involved in this, but here is the zoom-out view. When the colonies were formed, they were given their own charters by the king. These charters included the right to have their own legislatures, which were the bodies that had the authority to impose taxes—because part of the English constitution was “no taxation without representation.” That was not an American innovation. It was a right that Englishmen had, and which the English Parliament was trying hard to ignore. Parliament had no authority to tax the colonies, any more than the legislature of Oregon has the authority to tax the citizens of Arizona. But because of political turmoil in England over the course of the prior century, brought about by the grandiose claims of the Stuarts, this resulted in Parliament chopping off one king’s head (Charles I), and running another king off (James II). This naturally made Parliament feel like they were pretty hot stuff, and so they started levying taxes on the colonies just to show everybody who was the boss now. This was unconstitutional, but there was no Clarence Thomas around yet to slap it down. He was not even out of law school. Thus the impasse and the resort to arms.
So the Federalists knew that the problem was in men, and not in the systems that such men were occupied in distorting and trampling. Although the British system had been used against them, and they had fought and bled to resist those abuses, they still thought the system was better and offered more protections than any other on the market.
In contrast, the French revolutionaries wanted to scrap the ancien regime and invite the men with Big Brains to figure out a system for us, using nothing but the Light of Pure Reason and the Spirit of Democratic Uplift. Whenever people start thinking like that, it is time to start looking around for the tumbrils and guillotines. They are not far off.
Because men are sinners, and because that sinfulness goes down close to the bone, they will sin with whatever material they might have. If you centralize the government, they sin with that. If you decentralize it, they sin with that. If you have a strong executive, they sin with that. If you have a weak executive, they sin with that.
So the American system of government, as it was originally received from England, and as it was remodeled by the Founders to fit with our circumstances, and as it has subsequently evolved over the last two centuries, is still worth preserving. It is running on two cylinders now, but it is still running. The latest examples of the checks and balances still working would be the spate of SCOTUS decisions handed down just this last week.
But constitutional liberty cannot be preserved long term without someone declaring war on the administrative state. As Philip Hamburger has shown in his book Is Administrative Law Unlawful? the answer to the question posed is yes. It is unlawful. The kind of regulative state that we currently function under (think EPA, ATF, IRS, etc.—the other kind of alphabet enemy) is precisely the kind of state that our Constitution was designed to prevent.
At the time of the American War for Independence, despite all the grotesque encroachments, there was still some fight left in those who wanted to restore the older order—which they successfully did. The fact that it needs to be done yet again should surprise absolutely no one.
In a future installment, I hope to outline a plan for taking on the administrative state.