Originalism is a theory of constitutional interpretation, it is not—nor can it be—a constitutional theory in itself.
Max Edling’s recent book, Perfecting the Union, is a succinct, valuable account of the framing of the Constitution with an eye toward the division of power between the federal and state governments. It draws heavily upon, and might even serve as a useful introduction to, the body of scholarship he refers to as the “Unionist” interpretation of the American founding. The Unionist view stresses the importance of the theory and practice of federalism to understanding both the American Revolution and the framing and adoption of the Constitution.
The Unionist view shows how central the debates over the imperial federal structure were to the American Revolution, which pitted the newly dominant paradigm of parliamentary sovereignty against the rights of colonial assemblies which had been nurtured by the metropole’s “salutary neglect.” Independence, then, brought forth on this continent a new problem: how would the thirteen “free and independent states” order their relationship with one another? What kind of federal union could capture the best parts of the old colonial arrangement—unity and strength abroad, and self-government at home—without the monarchical loyalty that had structured the old order?
The Federal Compact
Edling believes that to understand the Constitution, we have to understand the long public deliberation that took place on these questions, running from the Articles of Confederation, through the various failed attempts at reform in the 1780s, the Philadelphia convention, the state ratification conventions, and the first Congress. The upshot of Edling’s account is that the Constitutional convention was prompted almost entirely by concerns about international and interstate relations, and the document therefore produced a national government that possessed authority almost entirely limited to these areas. This limited remit was a direct holdover from the Articles, which had envisioned a firm union of states that could act confidently as a single unit on the world stage without giving up the states’ individual independence and self-government at home. That hope, however, had been threatened by several distinct problems with the Articles. Most importantly, the lack of a taxing power limited the United States’ ability to protect its basic interests and take up an equal station on the world stage with European powers. Almost as important were the growing conflicts between states arising over economic tensions, with no means of independent resolution.
The Constitution’s enhanced powers, then, were narrowly aimed at rectifying these and other problems. The establishment of a more autonomous governing structure was a side effect—a necessity for a government empowered to address these problems. It did not signify the establishment of a “polity that gave the central government precedence over the states” but merely ensured that each level of the government was fully capable of successfully carrying out the tasks it was assigned. The Constitution, therefore, “transformed the structure of the American union . . . but it did not transform the fundamental purpose of the union, which remained a political organization designed to manage the relations between the American states, on the one hand, and between the American states and foreign powers, on the other.”
The other side of this coin is that the power to order society and govern internally was left largely untouched by the Constitution—it stayed with the states. There were a few prominent nationalists (Alexander Hamilton and James Madison among them) who went to the convention hoping that the new constitution would improve domestic politics. Madison’s famous Vices of the Political System of the United States, for instance, complained of the “multiplicity,” “mutability” and “injustice” of state laws. But Edling shows that such internal plans were not on most people’s minds, and they immediately met stiff resistance and rejection at the convention. To the extent that the Constitution contains provisions related to Madison’s concerns about state laws, they are very limited and specific, and typically connected to the overarching foreign, interstate, and commercial concerns that most delegates prioritized. The mechanism he thought most necessary for addressing his internal concerns (the national veto of state laws) was emphatically rejected in Philadelphia.
In impressive, if sometimes tedious, detail, Edling then demonstrates how fully the states remained in control of what was commonly referred to at the time as “internal police”—“a wide and eclectic range of government regulations of health, morals, education, communications, and the economy, covering virtually everything an eighteenth-century government did domestically apart from taxation and the administration of justice.” He compares legislative output in London with that of the early federal government and that of the states to show that the vast majority of domestic regulation for the common good remained almost exclusively in the hands of the states.
The conclusion, then, is that the Constitution’s federal structure was not a side concern at the convention, not a means to an end, not an unfortunate compromise with stubborn reality—it was the main event. The convention was called and the Constitution ratified primarily because of a widespread desire to reform and improve the federal union. Indeed, even the word “constitution” itself, he shows, was commonly used to refer to a treaty of federal union.
A Useful Corrective
There are several important, and interrelated, takeaways from Edling’s account. First among them is that one cannot understand the dynamics of the Philadelphia convention, the ratification debates and conventions, or the Bill of Rights, without recognizing that the Constitution was an agreement among sovereign states for particular purposes—it was not a general social-political blueprint for a new nation. (Here, Edling’s status as an outsider—he is a Swedish-born Reader at King’s College, London—may be helpful, in that he is not at all hindered by the mythological residue that collects on so much American writing about the period.) The agenda of the convention (including what was not on it), the way the proposed Constitution was presented to the people (even by the most ardent of nationalizers), the actual method of ratification, and the substantive content of the Bill of rights (“Congress shall make no law…”) make much more sense within Edling’s paradigm than if one looks at the Constitution with nation-defining ancient lawgivers in mind.
Second, trying to understand the Constitution in terms of “democracy” is not particularly useful. The book shows that, for the most part, domestic self-government was not on the table because most of the key figures were largely happy with the form they had, and neither the Constitution nor the national government had much effect on it. In fact, the constitution built on the pre-existing foundation by indirectly selecting senators and presidents and by deferring to state voting eligibility for Congressional elections. And when one looks at the famous comments in the convention about voting and elections (“excess of democracy” and all that), they typically are part of a discussion about how to fill specific offices with the best men—not about the overall character of the political order.
Third, the Constitution was not socially transformative. The “more perfect union” of the Preamble did not indicate a fundamental change, or the creation of anything that did not exist already. It did not revolutionize how people identified with their state or with the union. Indeed, the phrase suggests continuity. The Constitution, by attempting to address particular flaws with a new superstructure, simply made “more perfect” the same federal union of states that had existed under the Articles.
Edling’s account is, for the most part, a convincing and useful corrective to nationalist understandings of the Constitution and its context. It is missing an important element, however: a systematic account of sovereignty and its relationship between the people, states, and the federal government. Much confusion can ensue when the distinction in the founding era between an ultimate “sovereignty” and “government power” is blurred. This distinction, St. George Tucker observed, was one
between the indefinite and unlimited power of the people, in whom the sovereignty of these states, ultimately, substantially, and unquestionably resides, and the definite powers of the congress and state legislatures, which are severally limited to certain and determinate objects, being no more than emanations from the former, where, and where only, that legislative essence which constitutes sovereignty can be found.
Edling is almost entirely focused on the division of governmental authority, not ultimate popular sovereignty, and the book does not run into many problems on account of this distinction. But he does occasionally allude to matters that cannot be understood without it. For instance, he says at one point that “The authority of the Constitution rested on popular sovereignty whereas the Articles of Confederation had been an agreement between the states,” but elsewhere he calls the constitution a “plan of union between sovereign republics” and a “compact between states” He also refers to the states voluntarily “circumscribing their sovereignty.” There are not necessarily any contradictions to be had here, but a thorough presentation of the distinction and the use of more precise terminology could help for a more complete picture. On this point, readers will find a more thorough account in Aaron Coleman’s The American Revolution, State Sovereignty, and the American Constitutional Settlement, 1765-1800.
Though one cannot fault a short study for failing to look at every implication, the book is also lacking much by way of assessment of the plausibility of this division of power. Anti-Federalists, of course, did not believe such a balance of federal and state power could reasonably be struck and maintained. Give to the central government the sword, the purse, and the authority to interpret its own limits, and it will eventually use whatever pretense it can find to arrogate to itself supreme authority in all areas. Even in the early republic, the lines between foreign and domestic policy, and especially between intra- and interstate commerce were blurry. They are even more so now. On this point, at least, does subsequent American political development provide the inevitable vindication of the Anti-Federalists?
A Matter of Interpretation
So, the Constitution was a limited reform of the federal union fairly narrowly focused on the observed flaws of the Articles of Confederation, most of which related to external and interstate relations. We might assume, then, that the primary takeaways from such a study would be that we should moderate our expectations when we look back on the founders. At times in the text, Edling seems to suggest this. We might even be led to conclude that stable, non-violent improvements in political order typically come gradually, not through an all-or-nothing social revolution.
The jarring, sixteen-page conclusion, however, runs headlong in the opposite direction. Seemingly out of nowhere, Edling launches into a condemnation of the founding generation for not carrying out a cultural revolution. Observing the hierarchical character of the typical household authority of American husbands and fathers, the limits on suffrage, the many social institutions that did not properly promote individual autonomy, and of course (though not as much as one might expect) slavery, he explicitly criticizes the founding generation for failing to take Thomas Paine’s radical and destructive call to “begin the world over again” literally.
The blindsided reader is left with the concluding comment on the tendency of modern reformers to look back to the founders for inspiration: “Generations of American emancipators inscribed the rhetoric of the founders with new meaning. In so doing they rewrote as charters of universal freedom instruments that were originally designed to privilege the few by the legal subjection and oppression of the many.”
To say that this final sentence is out of sync with the tone and content of the rest of the book is a severe understatement. We have just toured a historical moment of great import, seeing that the options being debated were limited and restrained; that even so-called “founders” were not choosing the best society as if out of a catalog, but working to patch particular, repairable problems in the fabric they inherited. To someone with conservative sentiments, this seems like an admirable process on the whole and, even if its solution was not perfect, an attitude to be emulated in other circumstances in which other problems might be remedied. But the unrestrained imagination is hard to satisfy. Without recognition of human limits, we can never cease to condemn all men at all times.
Nevertheless, Perfecting the Union is a useful and recommended book, one that recounts with commendable clarity the statesmanship and compromises that took place within a broader consensus to give rise to the federal republic. Fortunately for the reader, this is history done honestly, which is something that can be learned from despite unrealistic ideological expectations. But still, you might want to skip the conclusion.