along with Washington and Adams. But both agreed—one a slaveholder from Virginia, the other a merchant from New York—on the aims of this new government they were establishing. In this they anticipated the tradition of fundamental agreement between the two “opposing” political parties in the American system. Hamilton wrote elsewhere in the Federalist Papers that the new Union would be able “to repress domestic faction and insurrection.” He referred directly to Shays’ Rebellion: “The tempestuous situation from which Massachusetts has scarcely emerged evinces that dangers of this kind are not merely speculative.”
It was either Madison or Hamilton (the authorship of the individual papers is not always known) who in Federalist Paper # 63 argued the necessity of a “well-constructed Senate” as “sometimes necessary as a defence to the people against their own temporary errors and delusions.” And: “In these critical moments, how salutary will be the interference of some temperate and respectable body of citizens in order to check the misguided career, and to suspend the blow meditated by the people against themselves, until reason, justice, and truth can regain their authority over the public mind?”
The Constitution was a compromise between slaveholding interests of the South and moneyed interests of the North. For the purpose of uniting the thirteen states into one great market for commerce, the northern delegates wanted laws regulating interstate commerce and urged that such laws require only a majority of Congress to pass. The South agreed to this, in return for allowing the trade in slaves to continue for twenty years before being outlawed.
Charles Beard warned us that governments—including the government of the United States—are not neutral, that they represent the dominant economic interests, and that their constitutions are intended to serve these interests.
True, there were many property owners. But some people had much more than others. A few people had great amounts of property; many people (roughly, one-third) had small amounts; others had none.
Still, one-third was a considerable number of people who felt they had something at stake in the stability of a new government. This was a larger base of support for government than anywhere in the world at the end of the eighteenth century. In addition, the city mechanics had an important interest in a government that would protect their work from foreign competition.
This was especially true in New York. When the ninth and tenth states had ratified the Constitution, four thousand New York City mechanics marched with floats and banners to celebrate. Bakers, blacksmiths, brewers, ship joiners and shipwrights, coopers, cartmen, and tailors all marched. They required a government that would protect them against the British hats and shoes and other goods that were pouring into the colonies after the Revolution. As a result, the mechanics often supported wealthy conservatives at the ballot box.
The Constitution, then, illustrates the complexity of the American system: that it serves the interests of a wealthy elite, but also does enough for small property owners, for middle-income workers and farmers, to build a broad base of support. The slightly prosperous people who make up this base of support are buffers against the blacks, the Indians, and the very poor whites. They enable the elite to keep control with a minimum of coercion, a maximum of law—all made palatable by the fanfare of patriotism and unity.
The Constitution became even more acceptable to the public at large after the first Congress, responding to criticism, passed a series of amendments known as the Bill of Rights. These amendments seemed to make the new government a guardian of people’s liberties: to speak, to publish, to worship, to petition, to assemble, to be tried fairly, to be secure at home against official intrusion. It was, therefore, perfectly designed to build popular backing for the new government. What was not made clear—it was a time when the language of freedom was new and its reality untested—was the shakiness of anyone’s liberty when entrusted to a government of the rich and powerful.
Indeed, the same problem existed for the other provisions of the Constitution, such as the clause forbidding states to “impair the obligation of contract,” or that giving Congress the power to tax the people and to appropriate money. They all sound benign and neutral until one asks: Tax whom, for what? Appropriate what, for whom?
To protect everyone’s contracts seems like an act of fairness, of equal treatment, until one considers that contracts made between rich and poor, between employer and employee, landlord and tenant, creditor and debtor, generally favor the more powerful of the two parties. Thus, to protect these contracts is to put the great power of the government, its laws, courts, sheriffs, police, on the side of the privileged—and to do it not, as in premodern times, as an exercise of brute force against the weak but as a matter of law.
The First Amendment of the Bill of Rights shows that quality of interest hiding behind innocence. Passed in 1791 by Congress, it provided that “Congress shall make no law… abridging the freedom of speech, or of the press.…” Yet, seven years after the First Amendment became part of the Constitution, Congress passed a law very clearly abridging the freedom of speech.
This was the Sedition Act of 1798, passed under John Adams’s administration, at a time when Irishmen and Frenchmen in the United States were looked on as dangerous revolutionaries because of the recent French Revolution and the Irish rebellions. The Sedition Act made it a crime to say or write anything “false, scandalous and malicious” against the government, Congress, or the President, with intent to defame them, bring them into disrepute, or excite popular hatreds against them.
This act seemed to violate the First Amendment directly. Yet, it was enforced. Ten Americans were put in prison for utterances against the government, and every member of the Supreme Court between 1798 and 1800, sitting as an appellate judge, held it constitutional.
Despite the First Amendment, the British common law of “seditious libel” still ruled in America. This meant that while the government could not exercise “prior restraint”—that is, prevent an utterance or publication in advance—it could legally punish the speaker or writer afterward. Thus, Congress has a convenient legal basis for the laws it has enacted since that time, making certain kinds of speech a crime. And, since punishment after the fact is a strong deterrent to the exercise of free expression, the claim of “no prior restraint” itself is destroyed. This leaves the First Amendment much less than the stone wall of protection it seems at first glance.
Are the economic provisions in the Constitution enforced just as weakly? We have an instructive example almost immediately in Washington’s first administration, when Congress’s power to tax and appropriate money was immediately put to use by the secretary of the treasury, Alexander Hamilton.
Hamilton, believing that government must ally itself with the richest elements of society to make itself strong, proposed to Congress a series of laws, which it enacted, expressing this philosophy. The Bank of the United States was set up as a partnership between the government and certain banking interests. A tariff was passed to help the manufacturers. It was agreed to pay bondholders—most of the war bonds were now concentrated among a small group of wealthy people—the full value of their bonds. Tax laws were passed to raise money for this bond redemption.
One of these tax laws was the Whiskey Tax, which especially hurt small farmers who raised grain that they converted into whiskey and then sold. In 1794 the farmers of western Pennsylvania took up arms and rebelled against the collection of this tax. Secretary of the Treasury Hamilton led the troops to put them down. We see then, in the first years of the Constitution, that some of its provisions—even those paraded most flamboyantly (like the First Amendment)—might be treated lightly. Others (like the power to tax) would be powerfully enforced.
Still, the mythology around the Founding Fathers persists. Were they wise and just men trying to achieve a balance of power? In fact, they did not want a balance, except one which kept things as they were, a balance among the dominant forces at that time. They certainly did not
