America’s Oldest Divide
If we had not abandoned the constitution, the union may not have survived
In their effort to create a union, the delegates at the Constitutional Convention had to negotiate many contentious, deal-breaking issues. Slavery was chief among them. Southern states made clear that they would not vote to ratify a constitution that abolished slavery or ended the slave trade. Northern delegates wanted to end slave trading and did not want slaves counted at all for congressional apportionment. Southern delegates wanted slaves counted as whole people. That would have given the South greater political power in the House of Representatives…
There’s little question that slavery is an abomination and a gross violation of human rights, but the founders had to decide whether there would be a union or not. Had morality been their sole guide, they might have taken a hardened, nonnegotiable stand against slavery, but then the Constitution would have never been ratified and a union would not have been formed.
A question that we might ask those academic hustlers who use slavery to attack and criticize the legitimacy of our founding is: Would black Americans, yesteryear and today, have been better off if the Constitution had not been ratified — with the Northern states having gone their way and the Southern states having gone theirs — and, as a consequence, no union had been created? I think not. — Walter Williams
Conservative economist Walter Williams has written a number of columns about the “three-fifths” clause of the US Constitution, which counted any enslaved human being in the United States as three-fifths of a person. As someone who supports the original intent of the founders, it makes sense Williams is interested in defending this controversial compromise which some believe “fractioned the personhood of slaves, confirmed their dual status as person and property, and endorsed slavery as the normative foundation for a formal racist state.”
Williams’ defense is fairly simple. The compromise is not a judgement of the inherent worth of black people, but an imperfect means to enact the ideals of a free republic. The country is not founded on slavery, which has been the norm throughout history, but rather on the ideals of liberty that could only be established by making complex pragmatic decisions like the three-fifths compromise. The republic would not have survived without the South, so they did the best they could to pave the path towards slavery’s termination while still managing to form a strong union.
Given we accept these arguments, I don’t think this detracts much from this line of criticism. If anything, it refines it. In a country where the constitution is seen by many as literally sacred, it’s jarring to read a line where human beings with no rights or protections are given an arbitrary percentage value of personhood as part of a negotiation dividing up political power between a wealthy elite consisting largely of slaveholders. Idealistic as they may have been, it’s no mystery why the ruling elites of the former colonies would prioritize states’ rights and checks on the “tyranny of the majority” over the absolute tyranny many of them held over the millions who would be born, toil, and perish engulfed in a brutish darkness.
The general welfare clause in both the preamble of the constitution and the beginning of article one section eight of the constitution is not a blanket authority for congress to do whatever it wants to provided they’ve decided it’s within the general welfare. — Nick Freitas
This argument turns out to be a double edged sword for American conservatism. Modern conservative thinkers like Virginia House Delegate Nick Freitas as well as economists Walter Williams and Thomas Sowell argue for a restrictive interpretation of the US constitution that prevents progressive lawmakers from passing just any law they feel is in the best interest of the country. The union apparently could not have survived without a constitution that guaranteed protections for slavery. Could it have survived a restrictive interpretation of that constitution which authorized only the specific powers listed within its four pages?
Judging by their actions, the founders didn’t seem to think so. The first major breach began with the formation of the country’s first central bank during George Washington’s first term as president. In the aftermath of an expensive revolutionary war, facing the prospect of becoming economically dependent on Great Britain and being forced back under its dominion, Alexander Hamilton believed that the union needed a strong federal financial institution to maintain independence.
Thomas Jefferson and James Madison disagreed, arguing that the constitution did not authorize such a bank. Hamilton more or less argued that the constitution didn’t prohibit such a bank, and George Washington signed the bank bill into law. Thus began the doctrine of “implied powers” in the constitution that continues to irritate conservatives like Freitas to this day. The bank was necessary for the survival of the nation, so it was constitutional.
Madison was later forced to admit the necessity of a central bank after the disastrous War of 1812 once again left the union in financial disarray. In 1815, he approved the creation of the far more expansive Second Bank of the United States. More than a decade before this, Jefferson had approved the Louisiana Purchase, despite believing that it was unconstitutional. He justified this decision by painting it as a risk he took for the common good of the union. Even the strict constitutionalists were amenable to using implied powers when necessary to promote the general welfare.
It is the case of a guardian, investing the money of his ward in purchasing an important adjacent territory; & saying to him when of age, I did this for your good — Thomas Jefferson
This split between the political philosophies of Hamilton and Jefferson led to the formation of the first political parties. Despite condemnation of political parties from most of the founders and the dire warnings of George Washington, factionalism took hold almost immediately and entrenched itself as a foundational, permanent institution in American politics.
The venom of this partisan split led to perhaps the most horrendous early breach of constitutional principles. The Sedition Act of 1798 criminalized the “writing, printing, uttering or publishing [of] any false, scandalous and malicious writing or writings about the government of the United States.” Ostensibly an act of security during an unofficial naval conflict with France, in practice it was used to silence political opponents.
Matthew Lyon, a Democratic-Republican congressman from Vermont (that being the party of Jefferson and Madison), was jailed for four months for accusing president John Adams of having “an unbounded thirst for ridiculous pomp, foolish adulation, and selfish avarice.” Adams failed to win reelection, whereas Lyon won by a landslide campaigning from his jail cell.
Radical Republican itinerant speaker David Brown was sentenced 18 months and a $400 fine for erecting a “liberty pole” displaying the phrase “No Stamp Act, No Sedition, No Alien Bills, No Land Tax; downfall to the Tyrants of America, peace and retirement to the President, Long Live the Vice-President and the Minority” (the Vice-President then being Thomas Jefferson). Unable to pay the fine, he served two years in jail before being pardoned by the newly-elected President Thomas Jefferson.
Speaking to the “Alien Bills,” the Alien Friends Act was passed around the same time and gave President Adams the power to deport any non-citizen without trial, violating the Fifth Amendment. The Alien Enemies Act allowed the President to “apprehend, restrain, secure and remove” any citizen of an enemy nation without due process, and is still on the books today as 50 U.S. Code Chapter 3. Most famously, it helped serve as the legal basis for the arrest and “internment” of 120,000 Japanese-Americans, about 2/3 of whom were born in the United States, during World War 2.
It’s easy to tie this framework to modern politics, comparing Jefferson’s Democratic-Republicans to today’s Republican Party and Hamilton’s Federalists to the Democratic Party. This even tracks geographically. Around the time of the Alien and Sedition Acts, every northern senator except for one (our dear friend Matthew Lyon) was a Federalist, while every southern senator except for one was a Democratic-Republican. Jefferson’s party represented the interests of the agrarian and slave-owning south, while Hamilton’s represented the big business industrial north.
By taking on this view of history, I think one can fairly approximate the political mindset of someone like Delegate Nick Freitas. For many conservatives, the history of the United States is an eternal, and perhaps somewhat inexorable, fight to keep the federal government from encroaching on the rights and freedoms of individuals and the states. By this line of thinking, Japanese internment, Obamacare, and even the Civil War stem from the same source: The violation of the original limited government framework of James Madison and Thomas Jefferson.
This is politics we’re talking about here. At the end of the day, people are going to use the means they have available to get what’s most important to them. Was George W. Bush a Federalist when he signed the Patriot Act into law? Was Donald Trump a Federalist when he passed an executive order targeting citizens of Muslim countries, citing Japanese internment as a precedent? Were Richard Nixon and Ronald Reagan Federalists when they initiated and escalated the War on Drugs?
Whether it was illegally declaring martial law in New Orleans, invading Spanish Florida and executing British citizens, removing federal deposits from the Bank of the United States, or questioning the Supreme Court’s authority in Worcester v. Georgia, Jackson acted in a manner that was at times distinctly illegal yet widely hailed by supporters as being in the nation’s best interest. — Matthew Warshauer
Andrew Jackson was an anti-Hamiltonian par excellence. Starting out as a Democratic-Republican, after the party split Jackson joined the majority Democratic party. As a representative of the southern slave-owning class, and an owner of hundreds of slaves throughout his life, he expanded the power of the presidency in order to support the interests of his anti-Federalist constituency.
Together with Vice President John C. Calhoun, Jackson liquidated Madison’s second central bank, seeing it as unconstitutional and unsound. They also forcibly removed Native Americans from land coveted by southern state governments, most famously in the death march known as the Trail of Tears. Jackson ignored the Supreme Court and prioritized “state’s rights” over the sovereignty of the indigenous tribes and federal treaties. Under the direction of Jackson, Postmaster General and close ally Amos Kendall censored anti-slavery pamphlets sent through the mail during a mass direct mail campaign. Jackson condemned the campaign as “repugnant” and “wicked” in his 1835 State of the Union Address, and both Jackson and Calhoun proposed legislation censoring anti-slavery mail.
This states’ rights platform caused some problems. In 1828, the so-called Tariff of Abominations was passed in Congress, which many southerners considered unconstitutional because it protected northern manufacturing interests at the expense of southern agriculture. After Jackson failed to abolish the tariff, Calhoun invoked the theory of nullification, declaring that states didn’t have to comply with Federal laws they considered unconstitutional. Calhoun resigned from the Vice Presidency, and Jackson sent warships to South Carolina along with a message that he would preserve the integrity of the union through bloodshed if necessary. South Carolina mobilized their own militia in response. To prevent civil war, a compromise tariff was passed alongside the so-called Force Bill, which allowed the president to use military force against states failing to comply with federal law.
Andrew Jackson, upon being asked if he had any regrets after his presidency: “Yes, I regret I was unable to shoot Henry Clay or to hang John C. Calhoun.”
Jackson’s heavy handed use of force did not always serve him. As finance capital celebrated the success of the Indian Removal Act, they rushed in to exploit the vast new territory suddenly open to land-grabbing and speculation. Without a central bank to keep them in check, state-chartered “pet” banks loyal to the Jackson administration entered a period of manic lending, along with limited support from the brand-new “free” banks, and poorly regulated “wildcat” banks, inflaming an inflation crisis. Jackson responded by passing an executive order requiring all public land sales be made in gold or silver rather than paper money. This spurred a wave of bank runs that culminated in the Panic of 1837 a year later, leading to a severe five year depression. The United States would have no official paper currency until 1862, and no central bank until the Panic of 1907 inspired the creation of the Federal Reserve.
Like the bible, the constitution is a flexible document often twisted and weaponized to legitimize whatever its wielder wanted to do in the first place. Without this flexibility, it probably would not have survived the massive transformations that propelled the United States into its current position as undisputed economic and military hegemon. The United States has the oldest written constitution in the world, and an incredible record of stability, especially when compared to the fallout of Bolivar’s Gran Colombia and the tendency for South American countries to revolve through radically different constitutions and governments.
Conservatism, going back to Edmund Burke, has been the philosophy of caution towards change and maintaining the integrity of institutions that have been built over the course of centuries. In this sense, strict constitutionalism is not conservative, but reactionary and perhaps revolutionary. The “unconstitutional” institutions we have now were built over hundreds of years of struggle, and returning to the compromises of our founding document wasn’t even realistic for the people who drafted it.
This doesn’t mean the old arguments are dead. The Democratic Party still practices nullification when they legalize federally criminalized drugs like marijuana through state law or found “sanctuary cities” to protect immigrants from ICE. Cryptocurrency promises a chance to escape from the monopoly of global central banks and experiment with new systems of commerce, while also providing new horizons of instability, scams, and tomfoolery. Country bumpkins still want metrosexual degenerates to go away so they can farm in peace.
The purpose of government is not to preserve itself, but to make people’s lives better. To put it in founder-speak, governments are instituted among men to secure the rights of life, liberty, and the pursuit of happiness. Historically, limited government, especially the early United States, has failed to do this.
When compared to a laissez-faire capitalist system that concentrates power in very few hands, democratic governments allow people to pool their resources and collectively decide what services are needed to give the most people the most health, wealth, and freedom. The ultra-wealthy have the power to force their view of the good life on the rest of us, and they fight against things like public transportation, walkable cities, community spaces, and universal healthcare when it benefits their industry.
This system is not perfect or even ideal, but it is the best we have until people do what the settlers of the United States did and build small-scale experiments in different forms of society that can be developed over time and brought to scale. Programs like the Saugerties Underground Center, the Kingston Land Trust, Cooperation Jackson, and the International Cooperative Alliance are doing just that. The future comes with incredible challenges, and without a doubt we will make decisions our descendants will curse us for. Yet, we still have the chance to leave a beautiful vision and a better world for those who come after us.