FReeper Book Club: The Debate over the Constitution, Federal Farmer #2

To the supporters of the new Constitution, Federal Farmer must have raised some hackles, but also some significant concerns. He had first directed his fire at the circumstances surrounding the calling of the Convention and the financial chaos it had been intended to fix. He had criticized the unseemly haste with which the backers of the Constitution had insisted on ratification, the goals of the men who had attended the Convention, and the possible consequences of what they had wrought.

² The essential parts of a free and good government are a full and equal representation of the people in the legislature and the jury trial of the vicinage in the administration of justice.

³ A full and equal representation is that which possesses the same interests, feelings, opinions and views the people themselves would were they all assembled.

⁴ A fair representation, therefore, should be so regulated that every order of men in the community, according to the common course of elections, can have a share in it.

⁵ In order to allow professional men, merchants, traders, farmers, mechanics, etc., to bring a just proportion of their best informed men respectively into the legislature, the representation must be considerably numerous.

⁶ We have about 200 state senators in the United States, and a less number than that of federal representatives cannot clearly be a full representation of this people in the affairs of internal taxation and police were there but one legislature for the whole Union.

⁷ The representation cannot be equal, or the situation of the people proper for one government only, if the extreme parts of the society cannot be represented as fully as the central.

⁸ It is apparently impracticable that this should be the case in this extensive country.

⁹ It would be impossible to collect a representation of the parts of the country five, six and seven hundred miles from the seat of government.

¹⁰ Under one general government alone, there could be but one judiciary, one supreme and a proper number of inferior courts.

¹¹ I think it would be totally impracticable in this case to preserve a due administration of justice and the real benefits of the jury trial of the vicinage.

¹² There are now supreme courts in each state in the Union and a great number of county and other courts subordinate to each supreme court.

¹³ Most of these supreme and inferior courts are itinerant and hold their sessions in different parts every year of their respective states, counties and districts.

¹⁴ With all these moving courts, our citizens, from the vast extent of the country, must travel very considerable distances from home to find the place where justice is administered.

¹⁵ I am not for bringing justice so near to individuals as to afford them any temptation to engage in lawsuits, though I think it one of the greatest benefits in a good government that each citizen should find a court of justice within a reasonable distance, perhaps within a day's travel of his home, so that without great inconveniences and enormous expenses he may have the advantages of his witnesses and jury.

¹⁷ The one Supreme Court at most could only set in the center of the Union and move once a year into the center of the eastern and southern extremes of it, and in this case, each citizen on an average would travel 150 or 200 miles to find this Court.

¹⁸ That, however, inferior courts might be properly placed in the different counties and districts of the Union, the appellate jurisdiction would be intolerable and expensive.

¹⁹ If it were possible to consolidate the states and preserve the features of a free government, still it is evident that the middle states, the parts of the Union about the seat of government, would enjoy great advantages, while the remote states would experience the many inconveniences of remote provinces.

²⁰ Wealth, offices and the benefits of government would collect in the center, and the extreme states and their principal towns become much less important.

²¹ There are other considerations which tend to prove that the idea of one consolidated whole, on free principles, is ill-founded.

²² The laws of a free government rest on the confidence of the people and operate gently, and never can extend their influence very far if they are executed on free principles about the center where the benefits of the government induce the people to support it voluntarily; yet they must be executed on the principles of fear and force in the extremes.

²³ This has been the case with every extensive republic of which we have any accurate account.

²⁴ There are certain unalienable and fundamental rights, which in forming the social compact, ought to be explicitly ascertained and fixed.

²⁵ A free and enlightened people, in forming this compact, will not resign all their rights to those who govern, and they will fix limits to their legislators and rulers which will soon be plainly seen by those who are governed, as well as by those who govern, and the latter will know they cannot be passed unperceived by the former and without giving a general alarm.

²⁶ These rights should be made the basis of every constitution, and if a people be so situated, or have such different opinions that they cannot agree in ascertaining and fixing them, it is a very strong argument against their attempting to form one entire society to live under one system of laws only.

²⁷ I confess I never thought the people of these states differed essentially in these respects: they having derived all these rights from one common source, the British systems, and having in the formation of their state constitutions, discovered that their ideas relative to these rights are very similar.

²⁸ However, it is now said that the states differ so essentially in these respects, and even in the important article of the trial by jury, that when assembled in Convention, they can agree to no words by which to establish that trial, or by which to ascertain and establish many other of these rights as fundamental articles in the social compact.

³⁰ But I do not pay much regard to the reasons given for not bottoming the new Constitution on a better bill of rights.

³² Nevertheless I acknowledge the proceedings of the Convention furnish my mind with many new and strong reasons against a complete consolidation of the states.

³³ They tend to convince me that it cannot be carried with propriety very far, that the Convention have gone much farther in one respect than they found it practicable to go in another: that is, they propose to lodge in the general government very extensive powers – powers nearly, if not altogether, complete and unlimited over the purse and the sword.

³⁴ But in its organization they furnish the strongest proof that the proper limbs, or parts of a government, to support and execute those powers on proper principles (or in which they can be safely lodged) cannot be formed.

³⁵ These powers must be lodged somewhere in every society, but then they should be lodged where the strength and guardians of the people are collected.

³⁶ They can be wielded, or safely used, in a free country only by an able executive and judiciary, a respectable senate, and a secure, full and equal representation of the people.

³⁷ I think the principles I have premised or brought into view are well founded.

³⁹ It is in connection with these and other solid principles we are to examine the Constitution.

⁴⁰ It is not a few democratic phrases or a few well formed features that will prove its merits, or a few small omissions that will produce its rejection among men of sense; they will enquire what are the essential powers in a community and what are nominal ones, where and how the essential powers shall be lodged to secure government and to secure true liberty.

⁴¹ In examining the proposed Constitution carefully, we must clearly perceive an unnatural separation of these powers from the substantial representation of the people.

⁴² The state governments will exist, with all their governors, senators, representatives, officers and expenses; in these will be nineteen-twentieths of the representatives of the people; they will have a near connection and their members an immediate intercourse with the people, and the probability is that the state governments will possess the confidence of the people and be considered generally as their immediate guardians.

⁴³ The general government will consist of a new species of executive, a small Senate and a very small House of Representatives.

⁴⁴ As many citizens will be more than three hundred miles from the seat of this government as will be nearer to it, its judges and officers cannot be very numerous without making our governments very expensive.

⁴⁵ Thus will stand the state and the general governments, should the Constitution be adopted without any alterations in their organization, but as to powers, the general government will possess all essential ones, at least on paper, and those of the states a mere shadow of power.

⁴⁶ And therefore, unless the people shall make some great exertions to restore to the state governments their powers in matters of internal police, as the powers to lay and collect, exclusively, internal taxes, to govern the militia, and to hold the decisions of their own judicial courts upon their own laws final, the balance cannot possibly continue long, but the state governments must be annihilated or continue to exist for no purpose.

⁴⁷ It is, however, to be observed that many of the essential powers given the national government are not exclusively given, and the general government may have prudence enough to forbear the exercise of those which may still be exercised by the respective states.

⁴⁸ But this cannot justify the impropriety of giving powers, the exercise of which prudent men will not attempt, and imprudent men will, or probably can, exercise only in a manner destructive of free government.

⁴⁹ The general government, organized as it is, may be adequate to many valuable objects and be able to carry its laws into execution on proper principles in several cases, but I think its wannest friends will not contend that it can carry all the powers proposed to be lodged in it into effect without calling to its aid a military force which must very soon destroy all elective governments in the country, produce anarchy, or establish despotism.

⁵⁰ Though we cannot have now a complete idea of what will be the operations of the proposed system, we may, allowing things to have their common course, have a very tolerable one.

⁵¹ The powers lodged in the general government, if exercised by it, must intimately effect the internal police of the states, as well as external concerns, and there is no reason to expect the numerous state governments and their connections will be very friendly to the execution of federal laws in those internal affairs which hitherto have been under their own immediate management.

⁵² There is more reason to believe that the general government, far removed from the people, and none of its members elected oftener than once in two years, will be forgot or neglected, and its laws in many cases disregarded, unless a multitude of officers and military force be continually kept in view and employed to enforce the execution of the laws and to make the government feared and respected.

⁵³ No position can be truer than this, that in this country either neglected laws or a military execution of them must lead to a revolution and to the destruction of freedom.

⁵⁴ Neglected laws must first lead to anarchy and confusion, and a military execution of laws is only a shorter way to the same point — despotic government.

This is the crux of Federal Farmer's objections to the Constitution. In his first essay, the reader sees him deliberately lay out the criteria against which he will judge the practicality of this new form of government. “Deliberate” is very much a characteristic of this gentleman, whoever he was, and so we must wait to discover what in fact he actually saw as a potential stumbling block with regard to the form and function of this proposed new government.

Concerning its overall makeup, we have seen that his opinion is that it should steer a middle course between an overt and complete takeover of the state governments’ functions by a central government, with a weak central government whose principal consideration must be to respect the different approaches of the various states. And yet there is a considerable reserve regarding the ability of any central government to function at all in this new geography.

To state it succinctly, his main concern is that the country is too big for a central government. In his first essay he cites 800 miles between an unnamed central location and the country's peripheries. Was that location Pennsylvania? The construction of a capital city on the marshes of Foggy Bottom was yet to come. The latter was, at that time, not an entirely pleasant place, and when the British fired it in 1814, part of the reason they departed with such alacrity was the fear of Yellow Fever. The area has since become somewhat more congenial – or so we are informed.

That 800 miles was a considerable obstacle to communications, for one thing, but not an insuperable one. Were the passing of information the only consideration, the technology of the time might have been up to it. After all, an established network of way stations and dedicated messengers was a thing employed with considerable success by Roman, Mongol and Seljuk Turk long before the wild sixteen month, 1900 mile adventure story that would become the Pony Express. Messengers on foot maintained a 100 mile per day rate between Cairo and Damascus, passing their messages like batons between way stations some four to six miles apart. When horses and camels participated, the great Ibn Battuta noted that a 50 day journey on foot between the Sindh border and Delhi could be accomplished by couriers in five days. Carrier pigeons had been employed by both the Crusaders and their foes, and only six decades after this debate a Baron von Reuters would employ them to found a news empire that exists today. There were options, and so the mere passing of information was not Federal Farmer's real concern.

And so what were his concerns? The primary one was the administration of justice.

¹² There are now supreme courts in each state in the Union and a great number of county and other courts subordinate to each supreme court.

¹³ Most of these supreme and inferior courts are itinerant and hold their sessions in different parts every year of their respective states, counties and districts.

The idea was not to interfere with what was at best a system spread thin already. To replace it with a purely centralized system was quite outside the capacity of a government that had yet even to have its sources of funding identified. And where there is no justice, there can be no government among free men.

Americans litigious? The reader chuckles – Federal Farmer knew his people, all right. While in the South there was a tradition that a man’s word was his bond, in the North there was a long and honored tradition of written contracts – and of violations of those contracts. So what was a day’s journey in his terms? Perhaps 20 miles or so, more if the litigant were fortunate enough to possess a horse or stubborn enough to accomplish it on foot.

¹⁶ It would be impracticable to derive these advantages from one judiciary.

¹⁸ That, however, inferior courts might be properly placed in the different counties and districts of the Union, the appellate jurisdiction would be intolerable and expensive.

We see at 17 that a citizen would be contemplating a ten day journey to plead his case before a central court, should that be the only option open to him. Clearly less strenuous options, such as already offered by existing state courts, were preferable. However, 18 describes with startling accuracy the system still extant at the present time. Expensive, yes. Intolerable, no.

Federal Farmer was concerned as well with the effects on a decentralized country of the deliberate construction of a central repository of power. It is likely that what he envisioned was the pattern of London, Paris, or Rome: a large urban area that came to treat the outlying areas as tributary. That might be a very difficult thing to sell to the prickly independents of such backwoods areas as the future Kentucky and Tennessee.

²⁰ Wealth, offices and the benefits of government would collect in the center, and the extreme states and their principal towns become much less important.

How to protect against the inevitable accrual of wealth and power to a central location to the disadvantage of outlying areas? Here the bicameral nature of the proposed Congress has its subtle corrective effect. To a pure democrat the idea of a state enjoying a representation within the Senate equal to that of a more populous neighbor is an outrage. This new Constitution wasn’t designed to promote pure democracy, but to guard against its abuses and to protect the “remote provinces” against the self-interest of their urban cousins.

That won't do for this new country, lest it throw its constituent parts in various directions like raindrops from a spinning umbrella. Fear and force at the borderlands serve their rulers well and their inhabitants poorly, and it is toward the inhabitants, and not their rulers, that Federal Farmer turns his regard.

²⁴ There are certain unalienable and fundamental rights, which in forming the social compact, ought to be explicitly ascertained and fixed.

This is an early expression of what will later become a furious controversy, the necessity or lack of a bill of rights.

This much is very clear and is a foundational principle of American government – government will be limited, and its operators will recognize the primacy of the people who have permitted it to be. When those operators stray or overreach, there will be a general alarm. It is an attitude that would be considered naïve were it not driven home so very frequently by the voters over the succeeding two centuries. It is well that a government should fear the people; it is ill when the people must fear the government.

At last comes Federal Farmer’s real critique of the Constitution – that although the state governments will be more numerous (42), the federal government relatively small (43), or else prohibitively expensive (44), and yet eventually the holder of all important power:

...the balance cannot possibly continue long, but the state governments must be annihilated or continue to exist for no purpose. (46)

That is, after all, the primary argument of Federal Farmer – that to centralize is to threaten to destroy the principles of local government on which the country was built. And, as well:

⁴⁹ The general government, organized as it is, may be adequate to many valuable objects and be able to carry its laws into execution on proper principles in several cases, but I think its warmest friends will not contend that it can carry all the powers proposed to be lodged in it into effect without calling to its aid a military force which must very soon destroy all elective governments in the country, produce anarchy, or establish despotism.

It is a prescient contention, but in fact it will not unfold in the United States within the author’s lifetime, but in France. Theirs was a revolution that would make the process taking place within Independence Hall seem bland but rational indeed.

At last Federal Farmer returns to his plea for the middle course and with a reminder of what will come should either extreme come to pass.

⁵³ No position can be truer than this, that in this country either neglected laws or a military execution of them must lead to a revolution and to the destruction of freedom.

In Decision in Philadelphia: The Constitutional Convention of 1787, Christopher Collier and James Lincoln Collier laid out the diversity of the thirteen states.

America was larger than most countries, and vast parts of it were sparsely settled. People both at home and abroad questioned whether such a large nation could be effectively governed. The road system was not much more than a poorly connected network of mud wallows, and waterways were ferried or forded, not bridged. An American who needed to travel between port cities was best advised to take the boat. A letter might take four days to go from Boston to Philadelphia, but a letter from Philadelphia to Pittsburgh could take a month. For most people, it was a rare occasion to travel more than fifty miles from home.

People from one region who visited another noted the differences in home construction, agriculture, religion and customs.

Life on the frontier was foreign to those from all six regions, with its hunter-gatherer lifestyle combined with smallholding agriculture. Frontiersmen had little loyalty to the states whose capitals were many days’ ride away, and they had no intention of obeying laws promulgated in those capitals. The Scots-Irish on the frontier would bow to no man.

In the settled areas, America was a deferential society, in which certain people by right of birth were expected to take leadership. In this stratified society, each town had a group of men who made the decisions and were automatically elected to office every year. This hierarchy consisted of wealthy landowners, lawyers, merchants, shippers, and in the North, ministers. People were born to their stations and went to college to prepare for those stations.

The gentry saw themselves as the natural leaders, and so did the “plain” people, who looked up to their “betters” without resentment. The gentry found nobility in the yoeman farmer, but they were not about to elect or appoint him to office. The yoeman farmer had enough on his hands, leaving the gentry to run things – unless they taxed him out of his smallholding, as had happened in Massachusetts. Then beware his wrath!

Although slavery was legal in most states, the South was far more dependent on the institution than the North. James Madison had come to the Convention believing that the key differences would be between the large states and the small states. By the time the Convention had ended, he understood, with no small amount of trepidation, that the key differences were between North and South.

45 and 46.

I’d say the erosion of states rights started, oddly enough, with prohibition.

If I remember correctly, criminals could flee to another state and there was no way for law enforcement to pursue criminals across state lines.

Hence, the creation of federal crimes and the FBI to fight such criminal activities.

From there Herbert Hoover, progressives, FDR, The New Deal, etc.

An encroaching federal government could have been fought by the States at that time. They didn’t, so, here we are now, having States fight the federal government.

Hopefully, the States can win the battle.

•At 45 and 46, he sees the states reduced to a mere shadow of their present power. One can grant that he got that one right, but was it inevitable, and why?
(45) Thus will stand the state and the general governments, should the Constitution be adopted without any alterations in their organization, but as to powers, the general government will possess all essential ones, at least on paper, and those of the states a mere shadow of power.
(46) And therefore, unless the people shall make some great exertions to restore to the state governments their powers in matters of internal police, as the powers to lay and collect, exclusively, internal taxes, to govern the militia, and to hold the decisions of their own judicial courts upon their own laws final, the balance cannot possibly continue long, but the state governments must be annihilated or continue to exist for no purpose.

(49) The general government, organized as it is, may be adequate to many valuable objects and be able to carry its laws into execution on proper principles in several cases, but I think its wannest friends will not contend that it can carry all the powers proposed to be lodged in it into effect without calling to its aid a military force which must very soon destroy all elective governments in the country, produce anarchy, or establish despotism.

Perhaps "destroy" used in the above context should be interpreted to have meant "exist for no purpose".

If that is the case, a coup can be accomplished without a military force. The result is a state government that exists only to fill a void that would otherwise result from the 'general governments' usurpation of power and remain in existence for that single purpose. A coup can be identified and resisted, an insidious usurpation cannot. The states are left as ineffective hollow shells.

The Civil War put an end to the notion that states voluntarily seceding from the Union was their right.

It did more than that.

Between the Revolution and the Civil War, the argument was about federalism. The Hamiltonian impulse toward centralization was pushed by Hamilton, the two Adamses, Webster, Clay and Lincoln. The Jeffersonian impulse toward decentralization was pushed by Jefferson, Jackson and Calhoun. The Civil War ended that argument with a military victory by the Hamiltonians.

Whether intended or not, the Civil War bequeathed us an early and primitive form of corporate fascism. The country was run by Big Business in general and Big Rail in particular. The federal government had become the central government, and the sphere of the states was diminished. Where would the Jeffersonian impulse go?

The Jeffersonians decided to take that powerful central government and turn its energy into helping the people, not Big Business. Thus were born the Progressives, who came out of the Republican Party in the Northeast and Midwest in the decade of the 1870's. They had a Protestant view of the world, no doubt because their roots were in Northeastern Episcopalianism and Midwest Lutheranism. They wanted to regulate Big Business before more radical folk, like the Populists, could nationalize everything.

Like most American political movements, the Progressives spent 30 years wandering in the political desert before they achieved power with Theodore Roosevelt, who imparted legitimacy to the movement. Since then, the debate between Hamiltonians and Jeffersonians has been all about who will control that all-powerful central government and how its power will be used.

After World War II, the attempt by Southern segregationists to use states’ rights as the means of preserving the “Southern way of life” discredited federalism further.

It is only now that federalism is emerging once again as a potent philosophy. We are hearing arguments once made by Calhoun coming from Andrew Napolitano, among others. We are in for some interesting times.

Has his vision of centralization come to pass, and was there any inevitability about it?

Interestingly, the concern about large/small states, and north/south states, should probably give way to an unconsidered grouping, the east/west states.

Instead of worryiing about the localization of power and wealth around the center of government, I think as the country expanded the localization occured on the eastern coastal states vs. the western states.

If you consider that we have four continental time zones, it only makes sense that the country wakes up on the east, and all power begins while the west is still asleep. The leading newspapers are the New York Times and Washington Post, all television is based on the Eastern time zone broadcasts (even live western events are timed for east coast consumers).

The major financial markets are in the east as well. The New York Stock Exchange closes at 1:00PM PST.

So, I'd say yes, centralization has come to pass, but it is east vs. west today.

-PJ

•At 22, he foresees that free principles will be observed in the center, but that military force would have to rule outside the center, specifically citing the Roman model of governance. He appears to have misjudged the situation, but why?

I think a couple of factors are at play here.

1. The Roman frontier was made up of conquered nations forced to pay tribute to Rome. The American frontier was settled by free people conditioned by the norms of the American center from which they (or their parents) came.

2. The American frontiersmen chose to enter the union voluntarily, and therefore didn't need coercion to comply with the union's wishes.

3. From reading works like The Rights of Man by Thomas Paine, European countries were created from a system of monarchies, based on the premise that their rulers were chosen by God. When one country is conquered by another country, they may be forced to comply with the political wishes of the conquerer, but the people would still have a fealty towards their God-given heritage, their lands, and their ancestors.

In a country created by the rule of law based on the consent of the governed, people who freely give their consent do not need force to compel them to comply. The question going forward is not how to keep the remote people in compliance, it is how to keep the central government from devaluing them in a way that leads to capricious lawmaking that favors the central population within immediate communication range.

I think that was the crucial issue of Farmer -- not that the remote people would need force to comply, but that they would use force to keep the central government honest and true to the principles of the Constitution.

-PJ

Thank you, again, for this excellent method of discussion!

Re #25:
"A free and enlightened people, in forming this compact, will not resign all their rights to those who govern, and they will fix limits to their legislators and rulers which will soon be plainly seen by those who are governed, as well as by those who govern, and the latter will know they cannot be passed unperceived by the former and without giving a general alarm."

The key word the Farmer uses here which forms the basis for his premise seems to me to be "enlightened."

The founding generations, "enlightened" as they were to the ideas of liberty and knowledgeable of the opposing ideas of tyranny, structured their government by a written Constitution to fulfill the purposes outlined in its Preamble.

From "Our Ageless Constitution," are the following observations about "An Enlightened Citizenry . . . ."

"Although all men are born free, slavery has been the general lot of the human race. Ignorant - they have been cheated; asleep - they have been surprised; divided - the yoke has been forced upon them. But what is the lesson? ...the people ought to be enlightened, to be awakened, to be united, that after establishing a government they should watch over it.... It is universally admitted that a well-instructed people alone can be permanently free."- James Madison

But now, by neglect, America's citizens have failed to "watch over" those in charge of their schools and their public places. By that neglect, they have allowed to occur an almost total censorship of the ideas of liberty, resulting in a citizenry of constitutionally illiterate individuals.

Again, from "Our Ageless Constitution":

"In the 1830's, Tocqueville observed that, in America:

". . . every citizen ... is taught. . . the doctrines and the evidences of his religion, the history of his country, and the leading features of its Constitution ... it is extremely rare to find a man imperfectly acquainted with all these things, and a person wholly ignorant of them is a sort of phenomenon."

"He continued, "It cannot be doubted that in the United States the instruction of the people powerfully contributes to the support of the democratic republic; and such must always be the case...where the instruction which enlightens the understanding is not separated from the moral education...."

"Possessing a clear understanding of the failure of previous civilizations to achieve and sustain freedom for individuals, our forefathers discovered some timeless truths about human nature, the struggle for individual liberty, the human tendency toward abuse of power, and the means for curbing that tendency through Constitutional self-government. Jefferson's Bill For The More General Diffusion Of Knowledge For Virginia declared:

"...experience hath shewn, that even under the best forms (of government), those entrusted with power have, in time, and by slow operations, perverted it into tyranny; and it is believed that the most effectual means of preventing this would be, to illuminate...the minds of the people...to give them knowledge of those facts, which history exhibiteth. History, by apprizing them of the past, will enable them to judge of the future...it will qualify them judges of the actions and designs of men; it will enable them to know ambition under every disguise it may assume; and knowing it, to defeat its views.."

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