A Fitful Union

What the Founders Wrought?
Howard Chandler Christy, "Signing of the Constitution," 1940; courtesy Art Architect Of The Capitol

Hatred is as American as apple pie. Progressives who are struggling to understand the catastrophic result of the 2016 presidential election should return to American history. A candidate who proudly trumpeted his disdain for women, African Americans, Mexicans, Muslims, gays, and the disabled, and who wore his lack of experience in public office as a badge of honor, struck many Americans as unfit as well as unqualified for the presidency. Yet that candidate tapped into some of the most venerable traditions in our nation’s past, traditions that have survived the attacks of the past six decades. Now that many self-styled conservatives are openly embracing such traditions, progressives—including the majority of voters who preferred Hillary Clinton—must face facts. Our past is alive. As Ta-Nehisi Coates has put it, “racism is heritage.”

In his ambitious study of governance in U.S. history, the distinguished American historian Gary Gerstle shows that Americans have distrusted each other ever since they forged a single nation from states that considered themselves as independent of each other as they were of Great Britain. That suspicion has manifested itself in an apparent contradiction that Gerstle probes in Liberty and Coercion: The Paradox of American Government from the Founding to the Present (Princeton University Press, $36, 472 pp.). Whereas the U.S. Constitution gave limited authority to the central government, state governments reserved much more robust and too-seldom appreciated “police powers,” long exercised by English authorities, that justified not only economic regulation but regimes of “surveillance” constraining the freedoms ostensibly guaranteed by the Bill of Rights.

A venerable tradition of animosity toward federal authority has animated foes of a stronger national government. Antifederalists opposed ratifying the Constitution. Flinty frontiersmen ignored demands that they respect Indian treaties. Jacksonians denigrated the nationalism (and antislavery activism) of their foes. Self-proclaimed “redeemers” thwarted post–Civil War attempts to end white supremacy in the former Confederacy. More recently, that animosity blunted or rolled back New Deal and Great Society programs, and it lives on among Tea Party activists who denounce Barack Obama as a socialist dictator.

The conflict between those who tried to empower the central government and those who fought to contain it, Gerstle insists, has defined American political history. The federal government, enfeebled by the Tenth Amendment, failed to consolidate temporary expansions of its authority in potentially “transformative” moments such as the Civil War, the New Deal, and the 1960s. Instead, in an effort to sidestep the states’ dogged opposition, the federal government was forced into “improvisational” maneuvers, inadequate to establish the legitimacy of progressive social and economic reforms, as it tried vainly either to use the courts, enlist the states, or cooperate with private partners to reach its goals.

Many observers have tried to explain why contemporary conservatives, pledged to oppose the federal government and all its works, nevertheless insist that state governments outlaw abortion and gay marriage, secure the right to pray in school and carry assault rifles in malls, and impose strict regulations on who can work (under what conditions) and who can vote. Gerstle finds the answer to that apparent contradiction in Americans’ peculiar fear of centralized power and their confidence in the authority of the states. This is a deeply pessimistic account of U.S. history. Changes that have led to greater freedom and equality, in Gerstle’s view, are ultimately futile improvisations that violate the Constitution. Resistance to those changes is grounded solidly in the police powers reserved for the states.

 

MY TWO RESERVATIONS concerning Gerstle’s provocative argument should not be taken as dissent from the praise the book has earned. Given that so much of Gerstle’s case turns on his conception of the eighteenth-century origins of the “liberal” federal government and the limits placed on it by the “founders,” his brief and schematic interpretation of that period offers a misleadingly straightforward account of devilishly complicated developments. When he gets to the nineteenth and especially the twentieth century, this author of two outstanding books, one on industrial labor and another on race and nationalism, and co-editor of two well-known essay collections, is on much more solid ground. For readers who want to know what the scholarly community thinks about the past two centuries of U.S. political history, Liberty and Coercion is a reliable and comprehensive guide.

Gerstle’s overall argument, though, depends on a distinction that I consider problematic. He attributes the safeguards against a powerful national government—safeguards built into the Constitution—to the prevailing eighteenth-century “liberal” mistrust of centralized authority and Americans’ commitment to securing liberty. To the state governments, by contrast, the “founders” gave all but unlimited authority to regulate citizens by invoking “police power,” or “coercion,” which Gerstle traces to the traditions of civic republicanism and English common law. Thus incompatible defenses of liberty, on the one hand, and reliance on coercion, on the other, “bound together from the earliest days of the republic,” have coexisted uneasily ever since.

As historians have been pointing out for three decades, however, the split between “liberal” and “republican” ideas on which Gerstle’s interpretation depends is a figment of the scholarly imagination. Those who wrote the state constitutions and the U.S. Constitution were the same people. They were not liberals obsessed with rights at one moment, then republicans focused on civic duties at another. The original state constitutions emerged in a flurry of writing during the period from 1775 to 1780; many delegates to the Constitutional Convention in Philadelphia in 1787, and to the state ratifying conventions that adopted the Constitution, had framed those documents. As John Adams wrote in the Massachusetts Constitution that he drafted in 1780, “government is instituted for the common good, for the protection, safety, prosperity, and happiness of the people and not for the profit, honor, or private interest of any one man, family, or class of men.” The plan being adopted by Massachusetts was “Locke, Sidney, and Rousseau and deMably reduced to practice.”

Neither Adams nor Thomas Jefferson nor James Madison distinguished between the “liberal” Locke and the “republican” Rousseau, or between individual liberty and government coercion. Notwithstanding their real disagreements, all the members of the founding generation believed that individual rights must be exercised within the boundaries of laws written by representatives of the people themselves. That shared commitment to popular sovereignty, not a schizoid or incoherent yearning for unbounded freedom and unlimited surveillance, made the state constitutions and the U.S. Constitution emblems of the world’s first democratic revolution. The architects of these founding documents, with very few exceptions (Alexander Hamilton, who wanted bankers to govern and the president to serve for life, comes to mind), prized equality and decentralization because they judged concentrated political power a threat to self-government. They also feared concentrated economic power, which is among the reasons that they thought the rich should pay more in taxes than the poor.

These God-fearing men, whether Deists or conventional Protestant Christians, knew they were flawed creatures incapable of establishing, once and for all, the delicate equilibrium between freedom and obligation, which explains the provision for amendments. They aimed to secure for citizens a wide array of liberties bounded by laws that would develop, over time, as a result of deliberations in sites ranging from town meetings and state legislatures to the Congress, and from local jury rooms to the Supreme Court. Gerstle concedes that references to the principle undergirding the states’ police power, “salus populi,” the people’s welfare, “did slip in” to the Preamble of the Constitution and Article 1, Section 8. I believe instead that those references to the obligations shouldered by state and national government alike to “promote the general welfare” were central to all these founding documents and the reason why, despite the Antifederalists’ anxieties, the Constitution was ratified by the states. 

Although the founders did value rights, they also valued justice. They differed, though, about how both rights and justice—both liberty and coercion—should be secured, and for whom. From the earliest squabbling about whether to form a single nation until today, race and ethnicity have been among the most important issues underlying those disagreements. Whether the question was the survival of indigenous peoples, the immigration of Germans to the colony of Pennsylvania (Benjamin Franklin disparaged them as “Palatine boors”), or the suitability for citizenship of women, Catholics, Jews, Muslims, Asians, Latinos, or, most persistently, African Americans, disputes concerning federal or state authority stemmed from the unwillingness of many white Protestant Americans to accept as their equals people unlike themselves. Beneath the masquerade of battles over local or state control, I believe, lay struggles over white male supremacy. Although Gerstle understands that persistent animosity as well as any American historian, he chooses not to emphasize the persistence of racism or sexism in this book. In the wake of this year’s presidential election, the consequences of those traditions loom larger.

The heart of Liberty and Coercion is a series of eight superb chapters dealing with the battles fought to establish and expand the power of the national government against forces defending two different oligarchies, those entrenched in the states and those spawned in the ever-rising tide of capitalism. Gerstle shows the stutter-step establishment of national authority, as the United States spread across the continent, and eventually around the world, by means of land distribution, post offices, local militias, and ultimately the nation’s military forces. Usually that expansion occurred through cloaked partnerships with entrepreneurs, ranging from nineteenth-century railroad, banking, and industrial tycoons to those who used generous government funding to create the military-industrial complex in the region now known as the Sunbelt. All these champions of “private enterprise” profited handsomely from federal largesse, even though their shrill attacks on “big government” veiled their feeding at the public trough.

Along the way, Gerstle catalogues various measures adopted by state governments to regulate economic activity, many of which he labels “progressive,” and others regulating religious belief, alcohol consumption, and sexual behavior, which he dubs “regressive.” Although those categories are less stable historically than Liberty or Coercion suggests, a generation of legal historians has puzzled over the fact that states undertook much more robust forms of regulation than did the federal government. Gerstle contends that the explanation lies in the Constitution’s original shackling of federal authority. Yet debates over the role of government, at every level, have been at the heart of U.S. politics and law from the beginning: Federalists and Jeffersonian Republicans in the 1790s, Whigs and the Jackson Party in the 1830s, and, since 1860, Republicans and Democrats have all battled nonstop over the purpose and the proper scope of government, within the states as well as between the states and the federal government. The outcomes have varied; the struggle continues.

Gerstle argues that the fault line between states and nation has shaped our political history, but that emphasis leads him to understate the extent to which there has been, and continues to be, tension between the techtonic plate of the Southern states and the rest of the nation. Parties enjoying greater strength in the North showed stronger support for the rights of indigenous peoples, internal improvements, antislavery agitation, compulsory education, unionization of labor, social-welfare programs, and, in more recent decades, struggles to secure equal rights for African Americans, women, the disabled, and LGBTQ people. Of course opposition to all those causes was never limited to one region, as the election reminded us, and the hardy band of Southern progressives cannot be ignored. Yet again and again, the strongest opposition to what Gerstle (and most readers of Commonweal) would consider forward-thinking legislation concerning agriculture, industrial relations, civil liberties, and especially the rights of minorities has come not just from “the states” but from particular states: those of the former Confederacy and its latter-day cultural outposts further west.

 

THOSE WHO VIEW the expansion of the central government as the most effective way to advance an egalitarian agenda have often emphasized the transformative role of war. Although Gerstle agrees that the scope and scale of federal power expanded by necessity during wartime, he terms that expansion a “mirage.” Opponents dismantled most of the improvised initiatives once peace returned, except after WWII, when the Cold War justified military spending on an unprecedented scale for an apparently endless time. In 1944 Franklin Roosevelt laid out ambitious plans for a postwar social-welfare state as generous as any of those created in Northern Europe. That agenda came to nothing, though, when southern Democrats made clear that they would never support programs that would have extended benefits to all citizens, black as well as white. Gerstle shows brilliantly how and why New Deal efforts to assist struggling farmers and industrial workers, efforts that substantially shrank the gap between the richest and poorest Americans, ended up benefiting primarily the most organized and (relatively) affluent sectors of agriculture and labor. A fine chapter on the 1960s shows that enforcing civil rights and anti-poverty legislation required “breaking the power of the states,” but he minimizes the extent to which the states that had to be “broken” clustered in the former Confederacy.  

That campaign for equality and inclusiveness sparked a “conservative revolt” that has dominated American politics since the 1970s. Confronted with a flurry of federal regulations, the states reasserted their authority to resist the power of the central government with the significant exceptions of military spending and initiatives to police citizens’ drug use and sexual behavior. Conservatives began to insist, in the face of the longest period of sustained economic growth in U.S. history and a steady decline in inequality, that government regulations and the steeply progressive income tax put in place in the 1930s had stifled initiative and productivity. They embarked on a campaign to reverse the central decisions of the Warren Court by demanding a return to what they conjured up as the “original meaning” of the Constitution. Under the leadership of President Ronald Reagan, they challenged the power of organized labor, slashed taxes, and campaigned against increases in the minimum wage, ostensibly out of renewed reverence for a “free market” that, as Liberty and Coercion makes abundantly clear, was always thoroughly regulated, albeit frequently in the interest of those who howled about preserving the freedom of contract.

Gerstle illuminates the novelty of recent conservatism by spotlighting President Dwight Eisenhower’s March 15, 1954, address on Americans’ civic duty to pay their fair share of taxes in order to expand Social Security and unemployment insurance, improve the nation’s housing stock, and provide health care for all. The political center of gravity has shifted dramatically, in part due to the Reagan revolution and in part due to Jimmy Carter’s and Bill Clinton’s embrace of deregulation. President Obama’s Affordable Care Act, as Gerstle points out, was modeled on the health-care law enacted in Massachusetts under Governor Mitt Romney. This plan, relying on private insurance exchanges, was conceived as a Republican Party alternative to the single-payer system that Hillary Clinton proposed in 1993. By 2010 all taxes—and all public-private partnerships—were being condemned as threats to Americans’ freedom. By 2016 that refrain was being repeated endlessly, particularly by a real-estate developer who boasted about his shrewd and (so far at least) successful evasion of federal income taxes.

Among the fascinating features of Liberty and Coercion is Gerstle’s analysis of the rise of political parties and the relation between partisanship and corruption. The founders neglected to address the necessity of funding elections because, as Gerstle acknowledges, they deemed parties inimical to the civic virtue necessary for popular government. If the common good, not the interest of any particular group, was to be every statesman’s aim, then parties were dangerous, as Washington warned in his Farewell Address. Yet because of the vast size of the nation and the decentralization of political authority, Gerstle argues, the nation immediately split into factions, and electioneering was thus bound to be an expensive proposition. The founders’ naïve unwillingness to provide for public funding spelled disaster. Private money inevitably seeped through even the tiniest cracks in the dams that “elite reformers”—a phrase that appears five times in less than two pages—have tried again and again to erect to stop corruption from flooding the political process. The fault lay, Gerstle insists, with “the deficiencies of the Constitution” rather than “the moral deficiencies of individual men.” Perhaps because those “moral deficiencies” are so hard to overlook right now, that judgment seems debatable.

 

WHAT IS TO BE DONE? This reviewer was surprised that Gerstle endorses the view, for decades associated with the most conservative legal scholars but now embraced by some on the left as well, that the limits placed on the federal government by the Constitution render most forms of economic regulation unconstitutional. Moreover, decisions rendered by the Warren Court, based on the principle of substantive due process, are said to impinge illegitimately on the states’ authority. Efforts to limit the influence of money in politics are dismissed as hopeless. So if we want to bolster the imperiled labor movement, shrink the widening gap between rich and poor, and secure the rights of minorities, Gerstle concludes, we must amend the Constitution. Because the founders really did intend “to limit and fragment federal power,” and because they really did fail to give “the federal government a power to act for the good and welfare of the commonwealth,” we must undo what they did. I disagree, and I believe that both John Adams and James Madison, the much-misunderstood darlings of many conservatives today, would disagree as well.

Although I doubt there are differences that make a difference between Gerstle’s vision of social democracy and my own, my second disagreement with the analysis offered in Liberty and Coercion centers on how we should understand the Constitution. Ever since the Progressive era, generations of reformers and scholars, some influenced by philosophical pragmatism and others informed by the best historical research on the founding period, have insisted on the idea of a “living Constitution,” a charter that the founders understood would have to change and develop along with the nation itself. Partisans of that view, including constitutional scholars such as Jack Rakove and Akhil Amar, dismiss the idea of originalism as incoherent. The Constitution was a compromise forged by individuals from starkly different regions—slave and free—who cherished different ideals of what the United States should become. The document ratified by the states embodied the compromises they had to make in order to satisfy their fellow delegates. Many of the ideas it contains, particularly those about women and nonwhites but also those about many other aspects of the world we inhabit—including but not limited to ideas about economic regulation, religious and ethnic pluralism, and the diversity of choices people can legitimately make about how they want to live their lives—no longer conform to the shared understandings of most Americans.

If we enshrine the Constitution in a glass case said to contain its “original meaning,” we embalm it. If we understand it instead as setting in motion a dynamic framework of self-government—a “living” set of rules that can be altered not only by the dramatic step of amending the Constitution but also reshaped incrementally, by juries and city councils, by state legislatures and district courts, and by the endless struggles fought between the executive, legislative, and judicial branches of the federal government as well as between the national and state governments—we will see instead that our challenges are those always facing a democracy. We must make persuasive arguments for what we believe, we must elect those who share our convictions, and we must abide by the decisions they make whether we like it or not.

Seldom in U.S. history has our nation faced a choice as stark as that of 2016. Particularly in light of the result, we must resist the idea that nothing short of amending the Constitution is adequate. Our future will be shaped, as our past has been, by our democratic process, imperfect and in need of reform as it always is. We must build with the tools we have. We must resist the temptation to see the perfect as the enemy of the good, as so many of those who voted for Barack Obama but failed to vote at all in 2016 evidently did. Gary Gerstle has given us a masterful overview of the dynamics that have shaped American politics, including the persistent struggle between the states and the federal government. Anyone who shares Gerstle’s conviction that our democracy should be moving toward greater equality and inclusion, and who seeks a clearer understanding of what we are up against as we work toward those ideals, should read Liberty and Coercion.

Published in the January 6, 2017 issue: 

James T. Kloppenberg, Charles Warren Professor of American History at Harvard, is author of Reading Obama: Dreams, Hope, and the American Political Tradition (Princeton) and Toward Democracy: The Struggle for Self-Rule in European and American Thought (Oxford).

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