In early August 1787, the Constitutional Convention’s Committee of Detail had just presented its preliminary draft of the Constitution to the rest of the delegates, and the Federalists and the Anti-Federalists were beginning to parse some of the biggest foundational debates over what American government should look like. On this episode, we explore the questions: How did the unique constitutional visions of the Federalists and the Anti-Federalists influence the drafting and ratification of the Constitution? And how should we interpret the Constitution in light of those debates today? Two leading scholars of constitutional history – Jack Rakove of Stanford University and Michael Rappaport of the University of San Diego School of Law – join host Jeffrey Rosen.
Jack Rakove is the emeritus William Robertson Coe Professor of History and American Studies and professor of political science and law at Stanford. He is the author of six books, including Original Meanings: Politics and Ideas in the Making of the Constitution (1996), which won the Pulitzer Prize in History. And, he is a past president of the Society for the History of the Early American Republic.
Michael Rappaport is the Hugh and Hazel Darling Foundation Professor of Law, and the Director of the Center for the Study of Constitutional Originalism at the University of San Diego School of Law. He previously worked in the Office of Legal Counsel in the U.S. Department of Justice. He’s the author of Originalism and the Good Constitution co-written with John McGinnis.
Jeffrey Rosen is the President and Chief Executive Officer of the National Constitution Center, the only institution in America chartered by Congress “to disseminate information about the United States Constitution on a nonpartisan basis.”
- The Federalist Papers
- The Anti-Federalist Papers
- American Treasures: Documenting the Nation’s Founding
This episode was engineered by Greg Scheckler, and produced by Jackie McDermott. Research was provided by Lana Ulrich, Michael Boyd, and Zoe Dettelbach.
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Jeffrey Rosen: [00:00:00] I'm Jeffrey Rosen, president and CEO of the National Constitution Center. Welcome to We The People, a weekly show of constitutional debate. The National Constitution Center is a non-partisan, non-profit chartered by congress to increase awareness and understanding of the constitution among the American people.
In August 1787, the constitutional convention was considering the manuscript of the Committee of Detail report. That was the second draft of the constitution that was circulated. I know that because in the constitution center's American Treasures gallery, we have the major drafts, July 24th, August 3rd, September 12th and September 17th. That's as good indication as any to talk about the debate between the federalists and the anti-federalists.
How did their unique constitutional visions influence the drafting and ratification of the constitution during those crucial months between May and September 1787? How should we interpret the constitution today in light of those debates? Joining us to explore this foundational constitutional question between the anti-federalists and federalists are two of America's leading scholars of the constitution. I'm honored to welcome both of them.
Jack Rakove is the William Robertson Coe Professor of history and American studies and professor of political science and law at Stanford. He's the author of six books including Original Meanings, Politics and Ideas in the Making of the Constitution, which won the Pulitzer Prize in History. Jack, it is wonderful to have you back with us.
Jack Rakove: [00:01:38] Great to be here.
Rosen: [00:01:39] Michael Rappaport is the Hugh and Hazel Darling Foundation professor of law and director of the Center for the Study of Constitutional Originalism at the University of San Diego at school of law. He previously worked in the Office of Legal Counsel in the US Department of Justice and is the author of Originalism and the Good Constitution, co-written with John McGinnis. Mike, it is great to have you back on the show.
Michael Rappaport: [00:02:02] Great to be here, thanks.
Rosen: [00:02:03] Jack, let's begin with a broad question, what were the major constitutional disagreements between the federalists and anti-federalist?
Rakove: [00:02:13] Jeff, I think I would start with two propositions that became clear only after the constitution was first published on September 19th 1787. The first would be that the bells of power between the national government and the states as the frameworks of the constitution have proposed that would inevitably drift sooner or later to give the national government deeper version of preeminence over the entire structure of law.
The word that was usually used at the time was that the constitution would produce a consolidated national government. The anti-federalists had a couple different meetings that they ascribe to consolidation. Sometimes, they meant it would simply mean the total absorption of power by the national government.
Sometimes, it just meant it would be a government that would act directly upon the citizens of the states and not have to work through the state governments as the congress had done under the Articles of Confederation. I think the key finding here is that the anti-federalists imagined that sooner or later, there would be a one-way drift of power towards the national government.
The residual sources to protect the powers and rights of the states were few. For a variety of reasons, the national government would consolidate all its power. The state governments would more or less wither away. I think that was the one greatest objection that resonated throughout the whole period when the constitution was being publicly debated.
The second one, which interest scholars in particular is tied to a theory of republican government. The basic argument here is that if you want to be a republican, I always like to say republican with lower case R. That what they had meant in the 18th century was would you believe that republics were, by their nature, supposed to be small, relatively confined, socially homogeneous entities. The association between the smallness of size and the extent of republic is one of the great conventions of 18th century political thinking.
The frameworks of the constitution, I think, led first and foremost by James Madison turned that proposition upside down. They argued that in fact, the best way to preserve a republic would be not to try to preserve this kind of limited extent and the kind of homogenative social interest that in fact it would be a great virtue and a great saving force in a large extended republic, which would embrace in Madison's language, a multiplicity of interests. A diversity that could be rooted in any of a number of factors.
Therefore, the best way to preserve republics was not to get them small and homogenous, it's to make them large and extensive. I think those are the two most important issues that occurs. There are a number of other propositions that come out, whether the constitution had adequately separated. The different powers of government or what we sometimes call checks and balances. There's a big concern that the senate would have emerged as the dominant institution of the government. Because, in fact, it would exercise all three forms of power.
I think, in consolidation, the question, the optimal size republic, I put those at the top of my list.
Rosen: [00:05:29] Thank you so much for that. Thank you for identifying the questions of consolidation and the size of the republic as some of the central concerns. Mike, do you have any several concerns that you'd like to add? Or, would you like to amplify on the ones that Jack has identified?
Rappaport: [00:05:45] I agree with Jack. Those probably were the two most important ones, the balance of power between the nation and the states and the size of governments in a republican system. There were, as Jack also notes, many other issues that were important. One important issue is the Bill of Rights. The federalist when they were proposing the constitution and arguing for its ratification were opposed to a Bill of Rights.
In fact, some of the time even made arguments it would be dangerous, it would be a bad thing. They also argued it was unnecessary. The anti-federalists did not. They felt in many of the states, in the state constitutions, there were Bills of Rights. This was a traditional protection of the liberty of the people and they wanted it at the federal level. The fact that it wasn't in the US Constitution made them very suspicious. That's one very important aspect. We really owe the Bill of Rights to the fact that the anti-federalists insisted upon it.
In fact, we would never have gotten the ratification of the constitution had the federalists had agreed in the ratification conventions to add a bill of rights in order to secure anti-federalists votes for the ratification. That's one very important issue.
There's another issue that Jack mentions, which is, what kind of separation of powers do we want at the federal level? There's the anti-federalist view, which is what we might call, in a way, a strict separation of powers. They wanted the legislature to have the predominant power. They were doing all the legislating and then the executive would simply enforce the laws and the judiciary would adjudicate them.
The federalists believe that when that system was operating, it didn't actually have a significant amount of stability. What would happen? They felt that the state level was that the legislatures would pass laws that would use their powers for themselves. One of the things that the federalists argued for was to have an executive veto, something which did not exist in most of the states.
The fact that we have an executive veto so that the president could protect himself from usurpations by the legislature is something that we very much owe to the federalists but something that the anti-federalists oppose. Another example of that, and again Jack mentions this, is the role of the senate. We're all familiar with the fact that the senate advise and consents to judicial nominations and to cabinet appointments. That's thought to be a very significant check on the powers of the president. He just can't appoint cronies.
The anti-federalists objected to this, they thought that this was not an appropriate role for the senate that this would be part of the way in which the senate and the president would get together and seize power from the rest of the government. We had a number of different disagreements. I could go on, but those are two that are worth mentioning.
Rosen: [00:09:30] That is great. Thank you for adding to the questions of the fear of consolidation in the size of government, the question of a Bill of Rights and the questions of what kind of separation of powers we want at the federal level.
Let us begin, now that these questions have been so well identified, with the first, namely, would the new constitution lead to a consolidated government? We know that the anti-federalists were concerned about that because the anti-federalist papers say so. Anti-federalist paper number nine is called a consolidated government is a tyranny. Number 17 says federalist power will ultimately subvert state authority.
Jack, there's much to say about the debate here, but I want to begin by asking you about the federalist and anti-federalist disagreement about sovereignty. James Wilson, we know from his early draft of the constitution which you can find online at American Treasures and here at the Constitution Center thought that we, the people of the United States, we're sovereign. As a result, because we, the whole people, made the union, only, we, the whole people, could change it.
Anti-federalists like Patrick Henry disagreed and said, the states were sovereign. I want to begin by asking you, what did James Madison think? We have federalist 39, which talks about the proposed constitution is in strictness neither a national nor a federal constitution but a composition of both. Did Madison side either with Wilson or with Henry? Or, did he have some amalgamation of the two? Then, tell us more about this fear about consolidation under competing conceptions of sovereignty.
Rakove: [00:11:06] Jeff, that's a great question. One worries, there's no short answer to it. Let me start by saying, I think Madison's position, first of, is much closer to Wilson's than it would be to Patrick Henry's. Madison did not believe that the states would remain the quintessential perpetual sources or expressions of sovereignty within the American republic.
Going beyond their proposition, federalist 39 which is a text I've spent a lot of time over the years, over the decades working with, is a very complicated text. Basically, what Madison does there when he turns to the question, is this more a federal or a national ... federal meaning state-based or a national meaning a nationalist-based government. Madison actually comes up with fully five criteria to try to map what are the exact dimensions of the distribution of, let's say, the overall contours of sovereignty within the proposed constitutional republic.
To start with that proposition, it's important to know that historically, empirically, going back at least to Jean Bodin and Lloyd 16th century and Thomas Hobbes in the 17th century, William Blackstone in the middle of the 18th century. Sovereignty was thought of as being a final absolute, ultimate, unresistable power. Every government needed to have a sovereign. Once you identify who or what the sovereign was, you'd have to concede that the sovereign's power in the end was final, absolute and, in a certain sense, uncontrollable.
The American system from the beginning made a mess of that. The states were there, they had a great deal of residual authority, a new national government was created. It was given a number of delegated power starting with article one section eight of the constitution, the enumerated powers of congress.
There was a complicated set of relations between the different political jurisdictions and to these that made up the union, the people electing the house, the legislatures electing the senate and then this strange body of electors in theory getting ready to chose the presidency. I think, in a sense, the way I usually try to explain to my students is or the audience is, basically, the American framers or the founders essentially destroyed the received idea of sovereignty.
They made it, actually, I published an article about this one, it's called Making a Hash of Sovereignty. They break it up, they divide it, they break it down to constituent's powers. That's what Madison went out to try to explain in a somewhat complicated way in the federalist 39 was the text is well worth reading but you have to read it patiently. On the other hand, there is a big rhetorical debate going on in 1787, '88, so where does sovereignty now reside?
James Wilson, I think, has the great ingenuity to say, we've established a republic which rest upon an initial act of the sovereign people of the United States. We're going to preserve a unitary theory of sovereignty. We're going to say, it resides in the people with large, at lest when they act constitutionally, by setting up governments.
They are, in a sense, the ultimate source of authority. You preserve that traditional notion of unity. You preserve a traditional notion that there is some final source of authority. The problem is, it doesn't work descriptively to say what is it the government actually does? It takes the traditional language of sovereignty and tries to preserve it. It does so in a form by European standards. Makes almost no sense at all.
Rosen: [00:14:50] Thank you so much for that answer. I have to confess that the debate over federalist 39 was one that I had when I was a first year law student with Akhil Amar my admired teacher. I said that the federalists hadn't settled the question of which people was sovereign and federalists 39. It took (inaudible) and the civil war to settle it in favor of Wilson.
Akhil said, "No, it was national from the beginning," and I hear you saying that it was more complicated. Wilson tried to fit it into the traditional theory that two forms of sovereignty were imperium in imperio or a state within a state but it really didn't work in practice. I'm relieved to have some backup about many decades later.
Michael, do you agree with Jack's description of the complicated debate over sovereignty and then after beat on federalist 39. I want to ask you, weren't the anti-federalists correct to worry about consolidation and didn't their fears come true?
Rappaport: [00:15:44] Yeah. I agree with jack that Madison takes a middle view. He says it's a combination of national sovereignty in certain ways and state sovereignty in other ways. I think this is really a contested issue, right, from the very beginning. With some people of a nationalist sort arguing for national sovereignty from the beginning.
Some people pretty quickly arguing for state sovereignty. Because one of the things that happens and this becomes absolutely clear by 1800, but we see a lot of it beforehand, is that people are arguing, the anti-federalist and their heirs in terms of the Jeffersonian democratic republicans, argue that the constitution was really a compact between the states.
That if you'd look at how the constitution was put together and formed, each state in its state convention had to ratify the constitution in order to become part of the system. Really, what it was, was each state getting together and entering into a compact with the other states. Under that way of thinking about things, the constitution plays sovereignty or recognize sovereignty at the state level.
Then, you had the James Wilson people and then that's followed on by the federalist party after the constitution is ratified arguing that sovereignty is at the national level. Madison, as is often the case, has this middle position and often also has a position that is not all that represented of what other people were thinking. He's got this middle position and I find it to be somewhat attractive. I'm not sure if, as I say, it was all that much representative.
The Supreme Court will fight about this for years and years. Chief Justice Marshall becomes the early chief justice, the third chief justice. He serves for over 30 years. In many of the famous opinions that his core issued, the very first thing the talked about is pretty much where does sovereignty lie? What kind of instrument is the constitution? Is it a compact among the states?
Marshall says, "No, it is not." This gets repeated because it ends up being flawed about. I think you're absolutely right. It goes all the way to the civil war and the cessation by the south. Your next question is, weren't the anti-federalist right to be worried about this? I think, if one looks further, especially if one looks further into American history and past the civil war and especially into the 20th century, the answer is absolutely.
The original conception and this is debated but I think it's pretty clear that even the federalist in the early years thought that national power would be limited. Debate about how limited it would be but that the constitution plays significant limits on it. By the time we get to the new deal, pretty much those limits are gone. They're gone for a couple of generations, one can argue about how limited the Supreme Court has recognized the federal government is today.
For a long time, the federal government had largely unlimited authority. This was exactly the type of thing that the anti-federalists were concerned about.
In fact, probably my favorite anti-federalist was Brutus and he has several different papers where he would sort of great predictive power says, "What's going to happen here is the Supreme Court is going to look at this vague language, this unclear language in the constitution. It's going to then recognize national power and give legitimacy to acts of usurpation by the congress and over time, there's going to be a consolidated government." It takes quite a while, but certainly by the new deal, looks like Brutus predicted things 100%.
Rosen: [00:20:32] Jack, do you agree that the anti-federalists were correct and that the new deal would fulfill their fears about consolidation? What would the federalists have thought about the new deal? After all, they won in the anti-federalist laws, was their conception of national power consistent with the one that would develop in the 20th century?
Rakove: [00:20:53] Jeff, and Mike too, I have to say, I radically disagree with Mike's way of approaching this. I do saw the basis of saying that you need to have some kind of historical explanation of why the national government grew as powerful as it did. The claim of the anti-federalists in effect was that the amount of power vested in the national government, the enumerated powers of article one section eight reinforced by the necessary and proper clause would ab initio, from the very beginning, create this kind of head long drift of power towards the national government.
Again, in fact, we leave the states as jurisdictions. In sort of sense, they're saying the constitution itself is the independent variable. The very nature of the constitution is the force that's going to make this, not only make it possible, it actually make it happen. If you're a political historian as I am and try to trace, let's say, the evolution of the American state, broadly defined not just the states but the whole enterprise with public power and you try to ask, what was the respective authority of the national state governments over two-third centuries of our history since the constitution is ratified?
I think the basic story is the states remained the pre-eminent source or locus of governance for the first century or so of American history. There's a big debate among historians as to just how powerful a national government we had. That debate is more complicated then suddenly we need to resolve now. The way I would answer this question is to say that what really matters was not the formal delegation of power per se or the constitution acting as an independent variable by itself.
What really matters is what the American people broadly define in all the different interests in the constituencies in which they operate politically. At what point and what time do the idea of national action, let's say a general broadly define approaches of national governments are the kind that we're, in a certain sense, best embodied in not only the new deal, but also the great society. What made that possible?
Those were political shifts. They weren't driven by the constitution itself they're driven by the actual course of politics. I think Wilson, and I think also to some extent Madison, understood this from the beginning. Then, what would really determine the balance of power between the nation over the states was not the text of the constitution per se, it was the way in which all those different interests out there in the republican society would try to manipulate government for their own purposes.
For the first century of American history, after the revolution, I think down to the late 19th century, the desire to use the states was still pretty eminent, except during certain moments, the civil war decade obviously, reconstruction would be a great exception there. Then, around the turn of the 20th century and then increasingly with each passing decade, the imperatives and the attractions of national action became all the more important.
I don't see this as a process that's driven by the constitution or one that really either the federalists or anti-federalists could have anticipated very well. It's really driven by the way in which ordinary citizens and the interest groups in which we organize ourselves try to make use of government.
Rosen: [00:24:19] That's a powerful answer. Mike, you are free to respond. I hear what Jack is saying that far from anticipating that Supreme Court would enforce original limitations on national power according to their original design, the federalists, at least, anticipated the ultimate balance between state and national power would be determined by politics. Therefore, the 20th century developments are not inconsistent with that original design. What's your response?
Rappaport: [00:24:48] You have to distinguish, I think, two questions here. The first question is, what does the constitution actually establish? What are the limits in that constitution? Then, there's the second question which is, are those limits stable? Do we have to worry about the possibility that they're going to be usurpations?
One can believe, for example, that the US Constitution plays significant limits on the federal government but also recognize that government institutions can perhaps illegitimately not follow those original limits. The revolutionaries who fought the English in 1776, believe that the limitations of the glorious revolution in England of 1689 was supposed to establish, they thought, a system of liberty. They felt that there had been a decline from that, that those limitations had been undermined through corruption and other matters.
They were quite familiar with the idea that you could have a good system and the benefits of that system could be lost through usurpations. They were worried about usurpation. They were worried about those problems. That doesn't mean that they thought that anything would go. One looks to what happened, let's say, with the new deal is absolutely right that the country faces an emergency and political desires of different interest groups and different parts of the government lead towards national powers being exercised.
That's right. The separate question is whether or not that was done in a constitutional way. One might argue, and I would, that the changes that the new deal, at least some of the changes that the new deal implemented were things that required constitutional amendments. Unfortunately, Franklin Roosevelt and the new dealers didn't want to go for constitutional amendments and so they made changes through the Supreme Court.
The Supreme Court approved the changes that congress enacted. One can feel, yes, there was a great desire to have national solutions and at the same time bemoan the fact that constitutional amendments were not enacted. That would have actually changed the constitution and made what the people wanted legal rather than to be sort of questionable legitimacy.
Rosen: [00:28:00] Great. Thank you for that fine exchange on the important question, is the new deal constitutional. We The People listeners, you know we have that wonderful debate between Bruce Ackerman and Randy Barnett on that question a few weeks ago. We know that we'll be returning to it in the months ahead. Let's turn now to the second big question that both of you identified as dividing the federalists and anti-federalists.
That was the proper size of government. Jack, as you said, classical theory assumed you needed small republics where homogenous interest could debate face-to-face and rule themselves but Madison turned that on his head by saying that in an extended republic, factions would find it harder to organize, passion would dissipate and reason could rule.
Say more about both sides in that debate and then tell us whether or not you think Madison was right.
Rakove: [00:28:50] I know almost every proposition, Jeff, I say Madison was right. I've been a long term Madisonian since the early 1970s. Part of that little quibble aside, again, there are so many ways you can approach this question. One is to say that when 18th century authorities including let's say, notably Montesquieu wrote about the optimal size of republics.
I think what they're basically envisioning where the city and states of Ancient Greece or early modern Italy, something like Athens in the 5th and 4th century BCE or Florence at the turn of the 16th century. Some Americans observe, I think, Hamilton made his point as well that if you look at the American ... the state-based republics, all the American states were organized as republican governments. They were already much bigger, at least most of them except say for Delaware and Rhode Island.
We're much bigger than any of those classical or early modern republics. I think the bigger issue that Madison was confronting here and the one that scholars continue to wrestle with is that an additional criterion of republican government was that you needed to possess a virtuous people. When you use the term virtue, which actually goes back to ... in some ways goes back to Machiavelli's use of virtue.
What you mean is not simply that we're polite and we help all people like myself to cross the street and so on. I'm past 70, so I'm entitle to this assistance.
Rosen: [00:30:23] You live in Stanford, I'm sure you're jogging across the street.
Rakove: [00:30:27] Actually, I refer to swim.
Rosen: [00:30:28] Yeah.
Rakove: [00:30:31] In any case, virtue has a specific political meaning. It means the capacity as a citizen to subordinate private interest to public good. It means that when you enter the politic you don't do so first and foremost to assert your self-interest. You do so because you feel a set of common obligations to the body politic and you're willing to subordinate your own interest to act patriotically, to act with public spirit, to pursue those interests.
In a sense, the idea of virtue remain one of the founding assumptions of the American republic circus 1776 when the first constitutions were written. A decade later when Madison says out to reassess how well of these republic governments operate, comes up with a number of criticisms. One of the most fundamental is we can't rely upon virtue. We can't rely just on public spiritedness to preserve our republican force of government.
We've seen lots of occasions, lots of decisions which were the decision has been reached not on the basis of virtue, but out of what he calls opinion, passion, and interest, each of which in a certain sense is seen is a vice.
Madison says, "We can't create, at least to the high level, the kind of virtue that Machiavelli admired and Montesquieu had discussed." We have to take people. We have to take Americans as they are. They have this ordinary array of opinions, passions, and interests. What we want to do is to create a republic that will act more or less virtually that will still respect private rights and the public good.
It will do so by taking people as they are. Then, we have to come up with the set of institutions that will not idealize or that will not be naïve about the trace of our citizens. We'll take Americans as they are, then we have to set up institutions that will mitigate and filter and modify and deliberate on their preferences and try to come up with the right results.
We give up, in a certain sense, we give up that classical notion of virtue. We try to come up with a more modern notion of how is it that people in modern civilized societies actually behave?
Rosen: [00:32:38] Michael, address the question of the debate of the anti-federalist between large and small republics. Jack introduces this question of virtue and Machiavelli's hope that people would subjugate private interest for the public good. I can't help but ask whether both the federalists and anti-federalists were also influence by Aristotle who's channeled by Machiavelli as well.
His notion of subjugate of Eudaimonia, well-being ... subjugating one's passions so that one can serve the public good. How did this notion of virtue play into the debate over the large and small republic?
Rappaport: [00:33:19] I guess, I think that I agree with Jack and that the anti-federalists were looking with a somewhat classic theory of politics, which as he says assumed a certain kind of virtue. One way to think about it is that it was making very optimistic assumptions about how people would behave.
Those were inconsistent with how in fact America was actually operating. What's interesting about that is that the anti-federalists were arguing for the traditional way of doing things. They had said, "Look, we had had these small republics for a long time. We have them since independence, but we had them at the colonies level for a long time and throughout history going back Montesquieu and earlier."
This was the way that republics had only operate. They didn't have any experience with a large republic. The only republics that existed were small ones. When Rome grew too big, it turned into an empire. That's on the one hand what the anti-federalists were concerned about. They wanted to do traditional things. Then, Madison and the federalists come back and they say, "Look, things are not working out the way you are suggesting that they are."
One way to understand that is prior to 1776, what placed limits on the colonies, what placed limits on these small republics from behaving badly was the English system and the English checks that were being imposed. Once 1776 happens and those states then can operate on their own independently, they're not following these optimistic assumptions of the classical theory. What they're starting to do looks a lot like we see it described in Madison and other places, sort of corrupt, interest group politics where people's rights and property are not safe.
Where there's all kind of machinations at work. The federalists say, "This traditional theory, this won't work under the circumstances in the United States. What we have to do is not assume that people will behave in this public-spirited way. We have to actually recognize that they may not and design the system so that they'll be checking one another."
We have to worry that the legislature is going to try to seize power. To protect against the legislature seizing power, we're going to give the president a veto, and so they're going to be able to stand up to one another. In any number of ways the federalist system attempted to do this. This was a new system, an innovation that the anti-federalists were very suspicious of.
On the other hand, the federalists come back and say, "Look, these classical notions that you're describing are not actually working in the United States and we got to do something new."
Rosen: [00:36:57] That, I think, leads to our third concern which was the debates between federalists and anti-federalists about the separation of powers and you've both described the fear of the anti-federalists that the blending of powers would lead to tyranny.
Madison proposed an amendment that was not adapted taken from the Virginia Bill of Rights that would have required that the legislature only exercise legislative powers, the executive, executive and the judicial, judicial that didn't pass.
Jack, tell us more about the anti-federalist fear that the blending of powers would lead to tyranny. Once again, to what degree do you think their fears have been vindicated or not?
Rakove: [00:37:42] One of the things that struck me 27 more years ago when I was doing my book Original Meanings. When I was working my way through those debates was to realize that somewhat accuracy to a modern eye, the institution that the anti-federalists seem to fear the most was the senate.
The reason for that was that by the standard theory would said there were three forms of power, legislative, executive, and judicial and never the twain or the trio shall meet, that standard theory which again we also associate first and foremost with Montesquieu. The senate seem to be the principle of danger. Why was that case?
It has all the legislative power that the house of representatives has. It also shares what many commentators regarded as forms of executive power with the president, the advising consent clauses, which cover appointments to major offices, including federal judges and justices and cabinet members and ambassadors and the like. As well as the advice and consent clause for the treaty power.
If you think of foreign policy making and if you think of appointment as being inherently executive powers, the senate shares in those executive powers. Then, third, because it will be the court of impeachments, should the house of representatives ever impeach an official, it has a significant judicial power as well.
What struck me being curious is that, I think, at the time, many commentators, actually federalists and anti-federalists alike, found it very difficult to imagine how much power the president would be able to exercise.
I mean, conventional American thinking before the revolution was dominated by the fear of executive power. That goes back to Cory's revolution that Mike was refereeing to earlier. That's an inbred element in American thinking. After 1776, the Americans have to ask a question what kind of executive power are we going to create?
I think the problem they face was that there was no adequate model of what a national republican executive would look like. Americans, they weren't about to accept the king, that would rule monarchy out. They weren't grate admirers of the kind of form of cabinet government or ministerial government that had emerged in Britain in the 18th century after the Cory's revolution.
They didn't really have any strong positive examples. They had no obvious way of knowing how much political power would the presidency have. I think one of the great puzzles, something I think I have to leave your listeners with a puzzle more than a solution, is that the anti-federalists were obsessed with the wrong institution. They were more concerned about the senate. They should have been more concerned about the president.
The problem with the presidency was it was difficult, I think, really almost impossible to know what executive power would look like until you actually had the institution up and running. Of course, the other aspect of this is so long as George Washington is going to be president, you're not going to worry about this.
The question is once you get into a post-Washington world, I mean, let's say he serves a term or two, nobody is going to regard that as a problem. Once you get into a post-Washington world, that becomes a serious issue. Then, you have to see how will American national politics be organized. That's why I think in certain ways, it's the emergence of the political party system beginning the 1790s. Particularly, with election of 1796 that starts to illustrate the complicated way in which the existence of organized political parties is going to interfere with than complicate the way in which this nominal separation of powers was supposed to act.
Rosen: [00:41:37] Mike, Jack has identified two anti-federalist fears of untrammeled senate, power, and executive power we can see that from the anti-federalist papers themselves that have at least four papers on the organization of powers of the senate and also have various fears concerning the executive department and the powers and the dangerous potentials of his elected majesty.
Tell us more about the competing fears of the senate and the presidency. Then, this really interesting question, were they wrong? Do you think, as Jack says to fear the senate more than the presidency or were they right to fear both?
Rappaport: [00:42:14] Yeah. It's very interesting with the presidency. Jack is right that they don't want a king and they don't want cabinet government, but they do have a model here.
One of the things that's not often appreciated enough is that they're not just inventing the constitution without any prior experience. Because the states are going to have state constitutions that they start enacting in 1776 and continue to change in different states all the way up until 1787.
The two models that they're going to use, I think, most significantly for the presidency is the governor of Massachusetts and the governor of New York, which were two stronger executives, stronger than the executives in the other states. That's going to be the model that they're going to employ. They're not just inventing this out of nothing.
The interesting thing is that the anti-federalists are worried about this, about this presidential power. They want to use, as always, they want to use the traditional limitations that they thought worked well. One of the traditional limitations is to have a council, which is not quite a cabinet the way we understand it, but it's a group of people that the president has to kind of consult with.
Sometimes, they would have to approve what he wanted to do. The federalists said, "We don't like the way councils operate, so we're going to not use them." The anti-federalists, where some of them are quite upset about this. They thought that the only way to keep executive power limited was to have a council in this way. The federalists, as usual, turned this around. They said, "No, we want a single president who will be responsible for what actions he takes." If something goes wrong, he's got to say, "I did it." He can't say, "I was forced to do it by my council. My council wouldn't do the thing that I really wanted to do."
Once again, we see the traditional arguments of the anti-federalists. Then, the federalists saying, "The traditional system doesn't work." This links in with the idea of the senate. Because once you got rid of the council, the council might be the traditional institution for advising and consenting to appointments. Once you got rid of a council, you have to have advising consent and be somewhere else, and so you gave that to the senate.
Of course, the senate was as well something of the ... some analogue to the house of lords in England. It did other things as well. It tries impeachments, the house of lords had significant judicial powers and the like. Which should we worry about more? Were they wrong to worry about the senate more than the presidency?
Probably. Although some people today are very upset with the senate. They don't like the fact, something that we haven't really talk about. The fact that we don't have ... that every state has the same number of senators and so it seems to give small states more power. There are plenty of people today who are more upset with the senate than they are with the presidency.
The presidency was a pretty limited power for most of the 19th century. It was only really beginning in the 20th century. Again, with some of the very significant changes we see during the new deal especially, but throughout the 20th century generally, that we begin to see a presidency that's really quite different than the presidency of the 19th century.
Rosen: [00:46:35] We have one other large issue that we haven't talked about and that's the disagreement about whether or not the Bill of Rights was necessary.
Madison originally said that the Bill of Rights would be unnecessary or dangerous, unnecessary because the constitution itself was a Bill of Rights by constraining congressional power. Dangerous because if you wrote down certain rights, people might assume that if a right wasn't written down, it wasn't protected.
In the face of anti-federalists objections and his need to win election in Virginia, he changed his mind and came to support the Bill of Rights. Jack, tell us more about why Madison changed his mind? How the federalists were right or wrong about the need for Bill of Rights and who do you think have the better of the debate?
Rakove: [00:47:16] Yeah. Jeff, I think you and Mike approach this question with the natural bias of people trained in the law schools, where there is such a great emphasis in teaching constitutional law today on the whole role of the Bill of Rights.
That emphasis represents what was actually a fairly traumatic turn in the American jurisprudence. The Bill of Rights was pretty inconsequential for the first century to half of its existence. There were not very many important Bill of Rights cases before you get really to the late 1919s, 1920s really to get to the 1930s.
Today, of course, the Bill of Rights dominates your idea of jurisprudence. Most Americans assume they only think about the institution. In some ways, that's the part of it that matters most.
Madison's concern if you go back to 1780s, I think, he was wrestling with a truly difficult question which is, if you want to use a constitution to protect fundamental rights, what's the best way to do that? Americans in the 1770s, 1780s thought that rights came from multiple sources. We don't have to glare what those were.
I think Madison realized that instead of having a variety of ways in which you can say, rights were given by nature, they're given by God, they're given by cabinets of governance, they're provided by the common law, whatever. Madison realized that the best way to protect rights might be to lock them into the text of the constitution.
I think in 1789, he set himself the task of forcing his fellow members of congress to pursue what he calls the nauseous project of amendments. He was concerned to do it in the right way. The flip side of this is that the anti-federalists, during the ratification of it proposed a number of amendments. The ones that matter most to them were not the Bill of Rights.
They had things to do with limiting the taxing, authority of congress and a whole variety of other things that were related to powers. By the time some anti-federalists made their way to the first federal congress in the spring of 1789, they were pretty indifferent to whether or not Bill of Rights should exist.
Madison remained unconvinced it was really necessary or useful. He worried about the danger of enumerating right. What happens if he leaves some rights out? Because they remain politically controversial. He reached to some extent about the problem of what happens when you textualize the statement of rights? How do you come up with adequate definition of what a right is?
Having a right is a complicated concept. It's not easy to capture it fully in the constitutional text. He was convinced that if you wanted to get the constitution to work, there was a group of well-meaning, misguided anti-federalists out there who really felt that constitutional Bill of Rights was defective.
To get them to, I won't say to play along, but to get them to accept the legitimacy of the process of institution change give them some body of amendments that would identify the fundamental rights with which Americans were most familiar. State those rights as precisely as you could.
Having done that, neither he nor everybody else actually felt the Bill of Rights would be an important part of the institution. It took a century and a half of our history for it to really attain that status.
Rosen: [00:50:42] Mike, the last word is to you, how would you characterize the debate between the federalists and the anti-federalists about the need for a Bill of Rights and who do you think had the better of the debate?
Rappaport: [00:50:53] I guess I disagree with Jack a little bit on this. It seems to me that the Bill of Rights is an incredibly important accomplishment of the anti-federalists. What we can really see rather than to think about who is right, the federalists or the anti-federalists, about these matters? Am I a Madison man? Am I a Patrick Henry man on these matter? Is to see that they both contributed to our American government and the constitution.
One of the great contributions of the anti-federalists is to introduce the Bill of Rights. Did we need the Bill of Rights? The federalists said we didn't need them and the anti-federalists said, yes, we do. In part because of this idea of a belt and suspenders approach to things. When the Alien and Sedition Acts come up in the late 1790s, the Sedition Act is a restriction on freedom of speech.
One of the arguments made against the Sedition Act is congress does not have the power to enact it. That's an argument you could make even without the Bill of Rights. Another argument was, this Sedition Act is going to violate the free speech rights of people in the country. You have a belt and suspenders approach to these matters.
Jack says, "The Bill of Rights was not very important for the 19th century. We don't have a lot of cases about it." That's true. It's also true that the federal government didn't do all that much during the 19th century by and large. That's a big part of the reason why we don't have very many cases about it.
In the 20th century, some portions of the Bill of Rights get applied to the states and states are doing lots of things. Then, eventually, the federal government is going to grow. The federal government is going to do lots of things. That's why in part, we get a much more important Bill of Rights in the 20th century. It's not because the principles weren't important, it was because they initially didn't apply to the states and the federal government wasn't doing that much.
Ultimately, I think, that this was one of their great contributions, the anti-federalists. Another important contribution that they make before they even become anti-federalists at the constitutional convention. Some of them are arguing for the importance of states and we get great compromises that are enacted and put into the constitution. The constitution really reflects the contributions and relative wisdom of both the federalists and the anti-federalists but no more than in the area of the Bill of Rights.
Rosen: [00:53:55] Thank you so much Jack Rakove and Michael Rappaport for an engaging lively and extremely eliminating discussion of the crucial debate between the federalists and anti-federalists. Jack, Michael, thank you so much for joining.
Rakove: [00:54:11] Thank you.
Rappaport: [00:54:12] Thanks so much, Jeff, I really enjoyed it.
Rosen: [00:54:20] Today's show was engineered by Greg Scheckler and produced by Jackie McDermott. Research was provided by Lana Ulrich and the constitutional content team. Homework of the week, friends, in the fall, Jack Rakove is publishing with Colleen Sheehan, the Cambridge Companion to the Federalist Paper, so make sure to get it as soon as it's out. Also, check out Michael Rappaport's Originalism and the Good Constitution.
Also, if you like, read federalist 39 and decide for yourself whether Madison is endorsing national sovereignty, state sovereignty or some combination of the two. Let me know what you think. Please rate, review, and subscribe to We The People on Apple Podcast. Recommend the show to friends, colleagues, or anyone, everywhere who's hungry for a weekly dose of constitutional debate.
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I need finally to give a shout out and a thanks to Timothy Gartin from Ames, Iowa who suggested this week's podcast, the debate between the federalist and anti-federalists. We The People listeners, if you have ideas for topics you'd like us to take up, please let me know.
On behalf of the National Constitution Center, I'm Jeffrey Rosen.