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The Constitutional “Moments” You Can Believe In

In Legacies of Losing in American Politics, Jeffrey K. Tulis and Nicole Mellow assert that there is an “illiberal tradition” in American politics. That tradition, they say, has had and continues to have an enormous unrecognized influence on American culture. While scholars and the informed public are trained to believe the three “constitutional moments” (the Founding, Reconstruction, and the New Deal) shape American civic life, a strong undercurrent, generally unremarked, carries the legacy of those moments’ “antimoments” and continues to affect us greatly.

Tulis and Mellow posit that the ratification-campaign Federalists (“or, more popularly, ‘the Founders’” began a tradition that is continuous with Reconstruction, the New Deal, and contemporary novel extensions of federal authority such as Obamacare. Each of those moments had its defeated antithesis, but the antitheses surged to the fore again—respectively during “a forceful resurgence of states’ rights after ratification of the Constitution, the emergence of Jim Crow after Reconstruction, [and] the success of ‘Reagan Republicanism.’” What they take to be their novel realization is that the apparent losers—Anti-Federalists, Andrew Johnson, and Barry Goldwater—impede us still. The antimoments, they say, “sustain or ingrain illiberalisms or ascriptive hierarchies.”

Tulis and Mellow explain in their first focused chapter, the one on the Founding of the federal republic, that Anti-Federalists used select passages from The Federalist “to reinterpret the Constitution so that it worked differently from the way originally planned.” They claim that Antifederalist critiques of the Constitution led Publius to describe the Constitution in a way “that ultimately was used to legitimate this Anti-Federal political persuasion, facilitating an opposing political and interpretative tradition layered over the constitutive logic of the Constitution.” In other words, Publius (meaning, as it happens, Alexander Hamilton) responded to the Constitution’s critics by describing it in a false but appealing way to get the people to agree to it.

Here we have an important assumption about the meaning of republican consent. On one hand, the position of figures such as James Madison and Thomas Jefferson was that the meaning of the Constitution was to be found in the ratification conventions (Madison), and it was to be read “according to the true sense in which it was adopted by the States, that in which it was advocated by its friends…” (Jefferson). On the other, Tulis, Mellow, and other prominent academics have thought that whatever the ratifiers were told or understood, what should count in interpreting the Constitution is “thoughtful Federalists{‘] and Anti-Federalists[‘]  … view of the nature of the Constitution and of the proper way to understand its meaning.”

In general, they take Anti-Federalists’ most lurid warnings of the country’s post-ratification future as reflecting the “real” truth about the constitutional order. If Anti-Federalists issued a warning and Federalists denied its validity—sometimes in the most exasperated way, as anyone familiar with the Virginia Ratification Convention can attest, the warning may be objectively true, the denial a rhetorical ploy. Both sides understood the Constitution as “an architectural plan for the building of a whole polity—government, society, culture, and even the characters of the individuals who would be its citizens.” “Both sides,” they say, “understood that adoption of the Constitution meant the nationalization of American politics, ‘big government,’ a powerful presidency, and a judiciary at the national level with wide interpretive license….” Federalists’ statements to the contrary, even in The Federalist (which is somehow “authoritative”), are “mollifying” statements, ruses, ploys, certainly not binding.

In reading Tulis and Mellow, I at last thought I had come upon an answer to the question why no Democrat or liberal academic of note had ever come to my attention as having lamented President Barack Obama’s dozens of knowingly false public promises that under the PPACA, Americans would be able to keep their doctors and keep their plans while saving a median of $2,500 per year: republicanism is not for them about persuading fellow citizens to adopt a common policy or program. No, it is about duping others (using “muting rhetoric”) into unknowingly “consenting” to everything they are being assured will not happen.

Tulis and Mellow concede that, “The Federalist was not widely read outside New York.” We do not know that it was widely read in New York either. Certainly, the last eight Publius essays can have had no effect on the elections to the New York Ratification Convention, because while those elections were held on April 15, 1788, the final eight Publius essays were first published only when volume 2 of The Federalist was—on May 28 of that year. In addition, the series’ impact outside New York can have been no more than tiny, because in no state other than New York was the entire series published, and in some states none of it was published at all. By May 28, eight states had already ratified, New Hampshire’s convention was already meeting, and Virginia’s was a few days from convening. (North Carolina joined the union only after the first Congress proposed twelve amendments for the states’ ratification, and Rhode Island’s ratification—in the wake of warnings about a U.S. trade embargo—had nothing to do with The Federalist either.)

Well, one might think, popular consent underlies the Constitution, and The Federalist is the best data we have about what the Federalists told the ratifiers that the Constitution was going to mean. If we know what Publius said, we know what the people agreed. He would err.

So, for example, having played one of the half-dozen chief roles in the Philadelphia Convention of 1787, Pennsylvanian James Wilson again staked out a key place among ratification-campaign Federalists. No doubt already familiar with the first salvo of Antifederalist blasts at the Constitution, besides with the arguments made by Philadelphia Convention recusants George Mason and Edmund Randolph, Wilson on October 6, 1787 (nineteen days after the eleven state delegations still in attendance at the Philadelphia Convention agreed to the Constitution) in Philadelphia at the Pennsylvania Ratifying Convention gave what came to be known as his State House Speech.

Though his name and work are familiar only to scholars now, Wilson’s was to be a leading role in the ratification contest. The State House Speech was reprinted more times during the campaign—at least 39—than any other argument by Federalist or Antifederalist. His arguments drew extended attention in numerous states’ ratification campaigns, including the decisive one in Virginia. Thomas Jefferson, minister to France at the time, swatted down Wilson’s argument in his effort to persuade James Madison that a bill of rights must be added to the Constitution.

Anti-Federalists’ criticisms of the proposed federal charter were generally unwarranted, the future Supreme Court justice insisted. Mason had vociferously lamented, among other of its features, the absence of a bill of rights from the Constitution, and Randolph had pointed both to that omission and to what he took to be the vagueness of the provisions setting out Congress’s powers—among other provisions—in explaining why he would not sign.

Wilson’s central assertion dealt with the formidable Antifederalist point that a constitution lacking a bill of rights could not be accepted by Americans, who after all had beginning in 1776 created the tradition of adopting written constitutions as the bases of their republican governments. As Wilson explained, the argument for a bill of rights missed a key distinction between a state constitution and a federal constitution. “When the people established the powers of legislation under their separate governments,” Wilson held, “they invested their representatives with every right and authority which they did not in explicit terms reserve; and therefore upon every question respecting the jurisdiction of the House of Assembly, if the frame of government is silent, the jurisdiction is efficient and complete. But in delegating federal powers, another criterion was necessarily introduced, and the congressional power is to be collected, not from tacit implication, but from the positive grant expressed in the instrument of the union. Hence, it is evident, that in the former case everything which is not reserved is given; but in the latter the reverse of the proposition prevails, and everything which is not given is reserved.” (emphasis added)

Consider that claim: Congress’s powers, said the most widely discussed Federalist argument of the ratification campaign—an argument by a brilliant attorney whose leadership among his state’s Federalists would soon lead Pres. George Washington (for whom eminence in the ratification campaign was a key qualification for such an appointment) to appoint him to the Supreme Court—were “to be collected, not from tacit implication, but from the positive grant….” In light of this principle, Wilson continued, a bill of rights “would have been superfluous and absurd,” because it would have “stipulated with a federal body of our own creation, that we should enjoy those privileges of which we are not divested, either by the intention or the act that has brought the body into existence.” While Congress would have power to regulate interstate commerce under the proposed constitution, for example, it would have no such power concerning the press. “In truth, then, the proposed system possesses no influence whatever upon the press, and it would have been merely nugatory to have introduced a formal declaration upon the subject–nay, that very declaration might have been construed to imply that some degree of power was given, since we undertook to define its extent.”

Not only was Wilson’s speech the most widely circulated of all Federalist arguments, but leading—leading—Federalists reasoned in the same way to the same conclusion during the ratification campaign in at least eight states. Among them were Governor Edmund Randolph and James Madison (both, like Wilson, among the Philadelphia Convention’s six most loquacious delegates) in Virginia, future Supreme Court justice James Iredell in North Carolina, prominent Framer Charles Cotesworth Pinckney in South Carolina, future Supreme Court justice William Cushing in Massachusetts, pivotal Framer John Dickinson in Delaware, and Alexander Hamilton, later to become famous as Mr. Loose Construction, in New York. In fact, that the federal government would if the Constitution were ratified have only the enumerated powers was the chief contention about the Constitution of the entire Federalist campaign.

When Thomas Jefferson pointed to the ratification-campaign Federalists’ assurances that the central government would have limited power, Tulis and Mellow say, he “began a long tradition of Anti-Federal appropriation.” But Jefferson did not originate the argument that the new government would have limited power, as we have seen. Nor had he ever been an Anti-Federalist. He was a ratification-campaign moderate Federalist, like Madison, Randolph, Edmund Pendleton, and other Virginia ratifiers. How can having accepted the assurances of so many leading Federalists have made Jefferson an Anti-Federalist? Eventually, because he argued that some of the Federalist Party’s 1790s policies went beyond the powers given to the new government via ratification, James Madison in Tulis and Mellow’s account becomes an Anti-Federalist too. In general, Tulis and Mellow take the General Welfare Clause as granting power to legislate for the common defense and general welfare, which they think is all one needs to know about the powers of Congress.—thus disagreeing with, inter alia, Rep. James Madison’s 1790 argument against Hamilton’s Bank Bill and Pres. James Madison’s 1817 Bonus Bill Veto Message.

How can our authors have been mistaken about so central a feature of their story? One has the feeling already on reading the book’s first page that Tulis and Mellow are not highly familiar with the Founding era: in a list of unsuccessful presidential nominees, they include “Charles Pinckney,” who although also a Philadelphia Convention Framer was not a failed presidential candidate like his kinsman Charles Cotesworth Pinckney—his first cousin once removed and a two-time presidential nominee; on the same page, they say that the 2000 presidential election was the closest in history, which would surprise congressmen who took 36 ballots en route to choosing Thomas Jefferson over Aaron Burr, with whom he had tied in the 1800 Electoral College, in 1801. The only way an election could be closer than that would be for it to take more than 36 House ballots to resolve.

The attempt in the following chapter to tie Andrew Johnson to Anti-Federalists and to segregation does not fare much better. Andrew Johnson’s denial that secession was constitutional and insistence on states’ rights to control their own property laws, suffrage requirements, etc., had more recent antecedents: Andrew Johnson was a Tennessee Democrat, and his positions on secession and federalism were exactly Andrew Jackson’s. They generally remained northern Democrats’ as well.

Somehow Jackson’s name never comes up in this book. Perhaps Tulis and Mellow are once again out of their historical depth. Perhaps, on the other hand, associating Johnson’s principles with the first Democratic president would not serve their book’s overarching purpose: to tar contemporary conservatives/Republicans with association with Anti-Federalism, slavery, and segregation while covering contemporary big-government initiatives with the glow of Broadway’s latest sensation: Hamilton.

The book’s third “antimoment,” yin to the New Deal yang, is Barry Goldwater’s 1964 presidential campaign. The authors allow that Goldwater was generally an admirable man. They describe his constitutional and moral views, which were more or less Jeffersonian constitutional and moral views. (Tulis and Mellow cite Goldwater’s harsh statements about the Religious Right approvingly.) Yet, once again, the description of the Constitution laid out by Edmund Randolph, James Madison, James Wilson, and other prominent Federalists during the ratification campaign—that the new government would have only the enumerated powers, with all the rest reserved to the states—becomes “Anti-Federalist.” Poor Goldwater is seen in his references to the Founders’ intention that the Federal Government have limited power as a deluded heir to a defeated—and properly discarded—political and constitutional tradition. Unfortunately, although Goldwater’s defeat amounted to an endorsement of the New Deal order (play along here), Ronald Reagan later adopted many of Goldwater’s positions as his own and won the White House on that platform, and we may still be living in the Reagan Antimoment.

In summary, Legacies of Losing in American Politics is based on a mistaken understanding of the Founding. Despite the fact of enumeration of congressional powers in Article I, Section 8 of the Constitution (in a day when all lawyers knew “Inclusio unius est exclusio alterius”) and the prominent insistence of the most important Federalists during the ratification campaign that the proposed government would have only the specifically (Gov. Randolph repeatedly used the word “expressly” in the Virginia Ratification Convention) delegated powers, including in James Wilson’s key specimen of constitutional exegesis, they take this principle as “Anti-Federalist.” Thus, any argument that the Federal Government was not constitutionally authorized to undertake a new program was constitutionally illegitimate, indeed of the same ilk as segregation. This is the central aspect of Legacies of Losing in American Politics.

Reader Discussion

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on February 25, 2019 at 11:42:42 am

"Muting rhetoric" as Tulis and Mellow describe it does not entail lying or "duping" as the reviewer alleges; it amounts to making a complicated and provocative argument in a way that will be persuasive and intelligible to those you are trying to persuade. Thus, rather than announce that the Constitution was a repudiation of the Articles, Publius chose to iterate his argument in such a way that his new conception of separation-of-powers and federalism wouldn't seem so radically different from conceptions cherished by the Anti-Federalists. Rather than shout his plan from the rooftop, in other words, he stated it in a way that would invite the most intelligent of his opponents to think through the implications of his position--which (as the authors show) is precisely what Brutus and others did. Indeed, Publius' new conception is there in the text; he isn't "duping" anyone; you just need to read the Federalist Papers carefully and reflect on the implications of their arguments to see it. Unfortunately, the reviewer angrily dismisses this interpretation of Publius without examining the evidence Tulis and Mellow provide to support it, specifically Publius' evolving account of SOP and federalism in the course of the Federalist Papers.

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Hamilton
on February 25, 2019 at 15:56:03 pm

I don't understand. The Anti-Federalists' criticism of the Constitution was a "reinterpretation. . .so that it worked differently than originally planned"? (Even though there was then no accepted interpretation to be re-interpreted).
Then later the authors argue that in fact, the "[re-]interpretation" (!) by the Anti-Federalists was indeed so correct that to hold the Federalists like Wilson to their formal assurances is tantamount to Anti-Federalism? That "both sides" understood that underneath the very public assurances of limited powers there was in fact a Straussian esoteric argument, understood and accepted both by the Federalists and by the "most intelligent" (per commenter Hamilton above) Anti-Federalists, that the supreme power of the new government would not actually be practically limited? So that to continue to believe in the stated intentions of the Federalists as to the limited nature of the new government is in fact to be a "not most intelligent" Anti-Federalist and, in the pejorative of choice of today's academic apparatchiks, "illiberal"?

Their claim refutes itself in the stating of it. The evident truth is that those who demanded a Bill of Rights were long since proved correct, as was Brutus in his prescient criticism of the Judicial power.

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QET
on February 25, 2019 at 22:48:44 pm

Hamilton, Madison and Jay were trying to use the the best arguments to get the document passed. Therefore, we have to take what they wrote with a few grains of salt.

When I took a college class on this period, the professor talked briefly about terminology. The forces for adoption were nationalists, the opponents federalists. He also discussed the latter word in the upper and lower cases. It all depends on how you want to proceed. I will assert that Madison was a nationalist at heart, but became an opponent of the Hamiltonian Federalists when the interests of Virginia were threatened.

One more point. Madison had to do battle with his opponents over the General Welfare, not the Commerce, Clause. He rightly pointed out that the rest of the Constitution would be superfluous if that clause was interpreted as liberally as they wanted.

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Keith Waters
on March 04, 2019 at 06:29:47 am

Given the seriousness with which “Legacies of Losing in American Politics” was treated on the Law & Liberty podcast—each co-author was featured on a separate episode—I was looking forward to a review that grappled with some of the important arguments it advances. Not only does this review fall short of that perhaps tall order, but it also fails to meet the more modest standard of accurately presenting the authors’ arguments. Indeed, having both read and taught "Legacies," it is hard to tell that the book reviewed here is the same one Tulis and Mellow wrote.

The reviewer’s tone and analysis speak for themselves. But what is most unfortunate about the review is that it doesn’t even give readers a sense of the arguments that, according to the reviewer, are so misguided. And one needn’t look very far to find them. The chapter on the founding (ch. 2) presents the three foundational constitutional arguments that Tulis and Mellow advance in the book, any one of which should be of interest to students of American constitutionalism. These are: (1) “that the core organization issue for the Constitution is separation of powers, not federalism” (53); (2) that the Constitution departed from earlier constitutional design and political thought by establishing a new form of government, which they call “mixed democracy” (54-59); and (3) that there is a previously unrecognized “political logic of the Constitution” (28 and 61) that points in the direction of nationalized politics and a powerful national government. It is worth identifying these arguments precisely, if only to show how little of Tulis and Mellow’s analysis is reflected in this review.

There are, to be sure, important interpretive and methodological issues raised by Tulis and Mellow’s analysis. And it is not without its flaws. The review seems to gesture in this direction with the invocation of James Wilson. (It is puzzling, though, why the State House Yard Speech was cited without also acknowledging the deep affinities between Wilson’s ratification arguments and some of the very arguments in “The Federalist” to which Tulis and Mellow devote sustained attention.) Serious engagement requires presenting and facing up to the arguments a book actually advances. Tulis and Mellow’s argument is not, as the review says, that the antimoments they identify “impede us still.” Rather, it is that “total and profound loss was a constitutive feature of eventual success” (14), as evidenced by their three case studies. And it is in this context that their claim about illiberalism is principally developed. For these reasons—and especially if they are right—Tulis and Mellow’s book is a deeply important contribution to the fields of American constitutionalism and American political development. One would hope that those claiming fidelity to the Constitution would welcome such a serious engagement with the handiwork of the founders and the political history they did so much to shape.

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Connor Ewing

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.