NARRATOR: When was the last time you looked at your spare change? I’m talking about the quarters and dimes and nickels that pile up in random places. Each of those coins has a different picture on it but they all have at least one thing in common - the motto “E Pluribus Unum.” You probably know that’s a Latin phrase and you might know that it translates as “out of many, one.” What makes this motto so important that it has been printed on US coinage since 1795, as a daily reminder to the average citizen. The United States is both one and many. How did the “one” come “out of many”? It was not a foregone conclusion that this would happen. Forming a union, and preserving the union, was a long and difficult process. This series of podcasts will explore the early history of the union, considering both the merits and the flaws that still have consequences for us today. After the British were defeated, the former colonies loosely bound themselves together with the Articles of Confederation. In today’s episode, we are going to discuss why the Articles were insufficient and how the Founders came to realize that action was necessary to preserve the tenuous union between the states. Joining me today are two eminent scholars who describe the history as well as the decisions of the Founders that resulted in our union. Professor Gordon Wood is Alva O. Way University Professor and Professor of History Emeritus at Brown University. He is the author of several books about the American Founding and the recipient of numerous awards for his work. Professor John Harrison is the James Madison Distinguished Professor of Law at the University of Virginia School of Law. His teaching subjects include constitutional history, federal courts, remedies, corporations, civil procedure, legislation and property. PUBLIUS: The Declaration of Independence was issued in 1776 on behalf of the “united states of America.” In 1781 the 13 states ratified the “Articles of Confederation and Perpetual Union.” The very first “Article” stated that the “style of this confederacy shall be ‘the United States of America.’ “ That sounds a lot like the Constitution we have now. Professor Wood, why were people dissatisfied with this first form of the union? What could it do or not do? Gordon Wood: The confederation is, the Articles of Confederation is, often referred to as America's first national constitution. It's not an early version of the Federal Constitution. That would be a mistake. It's better to see it as something resembling the E.U., the European Union today. It's 13 states coming together forming a confederation giving certain rights to this Congress. But retaining each of the states' basic sovereignty. And that's the best way to think of the E.U. Well, we should start with the understanding that nobody in 1776 even imagined, even their wildest dreams imagined, the kind of strong national government that was created in 1787. Nobody suggests it, nobody even thinks about it. They can't even imagine it. So something awful had to happen in that decade to change people's minds and make them willing to accept the kind of strong national government that emerges in the Federal Constitution. And we know it's strong because it's essentially the government we have today. So what the awful thing that happened essentially- and it's summed up I think by James Madison in his essay Vices of the Political System of the United States, which was a working paper that he worked out for himself. He always liked to make sense of what he was thinking and what he wanted to do. And so he worked out a working paper, which I think- it's never been published except of course now in the Founders Papers, but it was not published at the time. It outlines in his mind what was wrong with the system that led to his rethinking and creating the Virginia Plan, which became the basis, the model for the national constitution. And essentially what he's saying is there's too much democracy in the state legislatures. They are committing tyranny. And now nobody thought that the legislatures, which are popularly elected, could be tyrannical. How can you have majoritarian tyranny? I mean, John Adams said, well, that's crazy. Some Tories, some loyalists suggested that in 1775, "You folks are giving too much power to these congresses. You're going to find that they're going to become tyrannical." And Adams in reply said, "Well, that's a contradiction in terms. The people can never tyrannize themselves." A democratic despotism is a contradiction. Now what happened is that's exactly what developed. It was democratic tyranny. . . PUBLIUS: A “democratic tyranny” sounds like an oxymoron. How can there be such a thing as too much democracy? That sounds strange to a modern audience. Professor Harrison, do you agree that the Founders thought that democratic tyranny was a problem under the Articles of z Confederation? What does this have to do with forming a stronger union? John Harrison: It's easy to talk about the fascinating subject of the high principles of the American Framers, good and bad. Their participation, for example, in the Enlightenment, or failure to participate fully in the Enlightenment values. One aspect of their experience that it's important not to lose track of is their familiarity with the strengths and weaknesses of small-scale and local government. They were people who had participated in state governments that were, by even later 19th century standards, extremely small in terms of the number of people involved and in terms of the capacity of the government to accomplish anything. They had great respect for small-scale government, for government that was close to the people, that was not a distant bureaucracy, but a lot of the Framers, and in particular the people who came to be called Federalists, also had a strong sense of the weakness of that kind of government, in two particular ways, both domestic and foreign you might say. The weakness that they were mainly concerned about, at least as they saw things, as the Federalists saw things, was the likelihood that a small-scale government would be seized by a sudden mania to do something that the sort of people who became Federalists thought was a bad idea, like for example issue paper money. They thought that was a problem. And they thought that those small-scale governments were great for local government for representing the people, but on the other hand, they weren't going to be able to stand up to the great European imperial powers. And so it was necessary, they thought, to create this new central system, both to check what a lot of them saw, and again the ones we think of as Federalists are the ones who thought this was the most serious problem, the faction-ridden nature as they saw it of the smaller-level governments, and to have the kind of national government that could play the role on the world stage that would make it possible for the American experiment in small-scale government to continue. Now of course, a lot of what the Anti-Federalists said was, all of this attempt to centralize power is the attempt to transfer power into the hands of the kind of people who are going to be influential at that kind of government, and take it away from the ordinary people who are going to be represented in the lower-level government. So that is something that was always on the mind of the American Founders, who were both often Enlightenment theorists of government, but also very practical politicians with a lot of experience with the strengths and weaknesses, as I say, of small-scale republicanism. PUBLIUS: So not all of the Founders agreed that small government was a problem. But they must have agreed that some things needed to be changed because representatives from all of the states showed up for a convention to discuss potential amendments to the Articles of Confederation. John Harrison: Sorting out the impetus, or the different impetuses, behind the calling of the Federal Convention, and then the decisions the Federal Convention made, is one of the great questions of American constitutional history. There is a story according to which the immediate spark for the Convention was the movement for debtor relief legislation in the United States, and in particular, Shays' Rebellion in Massachusetts. That theory of the immediate origins of the Federal Convention matches the theory according to which a lot of what the Convention did was try to protect the rights of creditors. Property more generally, but creditors in particular. And certainly there is a credible account of what happened specifically in 1787 that sees a connection between disturbances like that and in particular what was going on in Massachusetts in Shays' Rebellion, and the ability of the states, who had failed the previous year in trying to get a meeting together that would propose amendments to the Articles of Confederation, to happen in 1787 There are also important issues having to do with the fiscal condition of the national government. It may be that everything about the creation of the Constitution, the calling of the Federal Convention, has something to do with people's inability to pay their debts. The Shays' Rebellion story says, well, it was the attempt by individuals who couldn't pay their debts to get debtor relief that sparked the counter-revolution that some people say the Constitution is. Another part of the story, though, are the fiscal difficulties that both the national government, which was quite weak, and the state governments were having in paying their debts, and the possibility that a lot of people who became proponents of a strong national government saw in the middle 1780s that the states would have the predominant fiscal power, that is to say, they would be able to collect taxes, they would be in charge of deciding which debts were and were not paid, and would make those decisions on parochial grounds. That possibility is clearly another impetus for the Federal Convention. I think that it is no accident that the very first power that Article One, Section Eight confers is the power to tax. That is the backbone of government, and the Framers understood that as the backbone of government. PUBLIUS: Did we really need a new Constitution for something as mundane as taxes? What about just amending the Articles of Confederation? Gordon Wood: Now, it lacked the power to tax, the articles did this Confederation. It also lacked the power to regulate trade, and these were becoming obvious weaknesses of a confederation. So by 1786, I think there's a consensus among the political nation, that is the people who are concerned with politics and government, that at least these two amendments had to be added to the Articles of Confederation. Now what Madison does, and his colleagues and there are a number of them, you have to call them Nationalists. I think what they do, and I don't think this is too strong a word, they hijack this reform effort and use it as a cover to do something really radical which is, to meet in the convention and come up with a totally new government that nobody anticipated. Now many of the later Anti-Federalists are more than happy to have these two amendments added to the Articles of Confederation, and they think the meeting in Philadelphia in the spring of 1787, in May of 1787, is going to do just that. The convention is a loaded convention for the most part. It's made up of people who are, who think like Madison, that things are really bad in the way the states are abusing democracy. And that lies behind the Virginia plan, which is the working model drawn up essentially by Madison, supported by his Virginia colleagues. And of course Virginia is a very important state. No state has ever been as powerful as Virginia. It was the most populous state, it had the most people. It had the richest, it was the richest state, it just dominates the country as no state ever has. And so, it's not surprising that we'd have a Virginia Plan and later four out of our first five presidents were Virginian. So the whole- Virginia is very much in control of things. And that is, I think is what lies behind that Virginia Plan which does run into some problems in the convention. It goes a little too far in the eyes of some, and you have a contest. A rival plan from New Jersey is proposed as soon as people become aware of the implications of the Virginia Plan. The New Jersey Plan essentially reverts back to, let's add some amendments to the articles. That's defeated. And at that moment the convention is really on the rail, they set the train going towards a Virginia Plan type government, which is going to have an independent executive, a bicameral legislature, and an independent judiciary. A very different kind of government from the old confederation which had 13 independent states. PUBLIUS: A proposal for an entirely new type of government must have been a shock to some of the delegates at the Convention. Were the Federalists and Anti-federalists able to find common ground about any of this? John Harrison: I think it's fair to say that the proponents and the opponents of the new Constitution shared a lot of beliefs about what the new national government would look like. They had some different predictions about just how responsive that new national government would be to the people at large, but in large measure they differed over whether it was a good idea to have that kind of new centralized government, whether creating a fiscal military state like the British state was likely, even if it started off relatively small, to grow and grow and grow. So you might say that one important way in which the Federalists and the Anti-Federalists differed was not in what the government would be at the beginning, but what it would turn into. A lot of the Anti-Federalists thought that once you had a power that was to some extent, and even to some extent, independent of the people, it would become additionally independent of the people. They thought that the standing army was a great danger, because they saw the standing army as an instrument for the use of force that would be supportive of the national government, and not supportive of the democratic principles on which the national government was allegedly founded. And so they differed in where they thought this new great Leviathan was going to go, even though I think they had an understanding that was a lot alike about what it would look like at the outset. PUBLIUS: The Anti-federalist fear about a big and powerful government certainly seems reasonable, especially when you think about their recent experiences with the British. Let’s talk a bit more about how that affected their viewpoint. Gordon Wood: The Anti-federalists raised two major objections, one that the government is a consolidation. It's going to consolidate things, that you given the supremacy clause it's bound to be dominant over all the states. And Anti-federalists appeal to the earlier imperial debate which came to break the empire over the issue of sovereignty. The British kept saying, you cannot accept some of Parliament's authority and not accept all because of the Doctrine of Sovereignty. There must be in every state, the doctrine read every state, one final supreme lawmaking authority. And that's Parliament. The Americans finally gave up on that issue, the Colonists gave up on that issue and said, "All right, we accept sovereignty, but it's going to be in our Colonial legislatures, and that's why we don't accept Parliament's authority at all." That's the position that they had reached by 1774 which is why the Colonists are so scrupulous in not mentioning Parliament at all in the Declaration of Independence. The closest they come is say, "You George the third have conspired with others." And that's as much as they willing to recognize Parliament because of their position. This Doctrine of Sovereignty is invoked by the Anti-federalists in 1787. They said, "Because of the doctrine of sovereignty, there must be in every state one final supreme law making authority it's going to end up in the Congress." And the Federalists tried to do what the colonist had done, divide sovereignty. "Oh no, the states are going to have some authority and the federal government will have other authority. We're going to divide it." And the Anti-federalists keep using that same argument that the British officials had used. "No, no, you can't divide sovereignty. It's all or nothing." And they're really in a mess. The Federalists are very confused to how to handle this argument until James Wilson comes up with the solution. He says, "Yes, there must be in every state this final lawmaking authority but it's in the people themselves." And he makes this in a speech out of doors in Pennsylvania and then later in the ratifying convention in Pennsylvania. And when Madison picks it up, he says, that's it. That's our solution, it solves all problems. And they exploit this notion that the sovereignty remains with the people. And they don't mean just that all power comes from the people, but no, but all final lawmaking authority. So that all the agents of the people are all the representatives, the senators, the president even, and the judges are just agents of the sovereign people given little pieces of power. It's a very interesting development in political theory, and it helps them get through this argument with the anti-federalists. John Harrison: One of the features of that history that is important to bear in mind in reading the debates over the ratification of the Constitution is the extent to which the new national government, despite the fact that it had this important popular element... The new national government, to a lot of people who are today called the Anti-Federalists, looked a lot like the British colonial government. It was central, it was in some ways distant, it was going to have an important role for life-tenured judges, it was going to have an important role for a single individual, the president. Certainly the president was not a hereditary monarch, but the president was going to be a single individual running a government stretched out over a country of continental dimensions. It had a Senate indirectly elected, serving for a long term, that looked to a lot of Americans like the House of Lords, a government that was distant from them. The only part of the government as originally designed that was directly elected by the people was the House of Representatives. These very practical concerns about lack of representation in the British Parliament, control from a distant colonial center, came back in the debates over the ratification, and a lot of the opponents of the Constitution saw the new government as not so much different from the British government, just moved across the Atlantic. But still, a long way from them, and not fully representative of their interests. PUBLIUS: Professor Wood, you mentioned two major Anti-federalist objections. Was the second one also related to their experiences with the British? Gordon Wood: The other argument the anti-federalists use is that this is creating an aristocracy. Which is of course what Madison had in mind when he says we're going to get a better class of person in the Congress. And they're not wrong these Anti-federalists. They say in the debates in the ratifying convention, "This document is designed to keep the likes of me out." That's what William Finley says. These middling sorts of people are not going to be allowed into the government because it's going to favor college educated rich people. And so, they kept throwing that argument in the face of the Federalists. And the best debate, I think from this point of view is in New York where a Melancton Smith who's a middling sort of guy, may have been the author of the most important, the Federal Farmer, the most important Anti-federalist pamphlet. Anyways, Smith gives Hamilton, college educated Hamilton and Robert Livingston, a real run for their money. He keeps throwing this notion, "You're just a bunch of aristocrats and you're trying to design a government that's going to benefit the likes of you." And Hamilton's forced into saying, "Look, there are no aristocrats in America. We're not Europe." But it's a very, very difficult argument. PUBLIUS: That idea about an American aristocracy is interesting. Although the newly proposed government didn’t look like anything in Europe, did any of the Founders actually envision America becoming more like Europe in other ways? John Harrison: One important difference between the Federalists and the Anti-Federalists was their image for what America ought to become in the next 100 or 200 years. Was the country going to remain predominantly rural, a country of largely small-holding farmers with some cities on the coast that were commercial centers, but that were nothing like the great metropolis of London or Paris or any of the other great European capitals? Or was it going to grow more in the direction of Europe? One of the theories of political economy that a lot of Americans subscribe to, probably more of the opponents of the Constitution or those who thought the Constitution had real dangers in it, even if they supported it, was the notion that popular government rested on a particular kind of economic system, one in which there were people who were economically independent, primarily the small-holding farmers. People like that thought that inevitably, people who lived in a city and worked for somebody else were ultimately not going to be capable of self-government. So differences in predictions about not only how the government would work, but what would be the long-term consequences for republican self-rule of different x`economic developments, and hence differences about, well, should a new government promote something that is more like an urbanized and commercial country in Europe than the overwhelming rural and agrarian country in the United States? That's another important difference between the Federalists and the Anti-Federalists, speaking broadly, of course. Generalizations are always difficult, of course, and subject to endless qualifications, and properly so. PUBLIUS: In modern times, we tend to think of the American people as deeply divided on issues. The truth is that Americans have been divided many times in our history and people have had to learn to compromise and work together. As we’ve just discussed, there were a lot of legitimate disagreements even among the Founding generation. How did the Federalists and Anti-federalists finally agree that a new government, a new Constitution, was needed? Gordon Wood: The debate becomes very close and the vote is very close. What the Federalists benefited from at this point is the fact that there is no alternative. In the end, Malancton Smith really is a strong Anti-federalist but, in the end he realizes that this is all we've got. It's this or nothing, and they don't want nothing. Confederation is essentially collapsed. The Congress isn't meeting. And so in the end, Malencton Smith, even though he's the most articulate Anti-federalist in the state of New York, he votes for the Constitution. And I think that's, in the end, the secret to the Federalist success is that many people felt, "Well, we can't have no government, no national government. And so this is the best we've got. We better go with it." I think that helps explain, because if you'd had a poll similar to we'd have today of the whole nation, I think the bulk of the population probably would have been opposed to this government. It was so unprecedented, so contrary to their notions, such a powerful government, so far removed from localities that they would have been defeated in any kind of national referendum. PUBLIUS: As we all know, there’s much more to the story. Even after the parties agree to a new Constitution, questions remain about what it should look like. How to deal with the problem of slavery? Are the ideals of the Declaration of Independence incompatible with the realities of the new Constitution? Join us for the next episode on the story of our union. Thank you for listening to this conversion from the No 86 Audio Series: A Union, If You Can Keep It, an in-depth discussion of the core principles, accomplishments and legacy of the Founding Fathers. The spirit of debate animating the Federalist Papers in the Founding Era inspires all of the No. 86 content, encouraging discussion and critical reflection relative to how each subject is widely understood and taught in law schools and among law students. Thank you also to our speakers Professors Wood and Harrison, and to No. 86 team who made this production possible. Subscribe to the No. 86 Lecture series on your favorite podcast platform to have each episode delivered the moment it’s released. You can also go to fedsoc.org/no86 for lectures and videos on Federalism, Separation of Powers, the Judiciary and more. Thanks for listening. See you in class!