1 Introduction

The rise of democracy meant a profound and comprehensive transformation, because it required not only the constitutional implementation of popular sovereignty and an egalitarian form of the rule of law, but also a specific political model that resulted in equal citizen participation in the processes of political decision-making, voting and implementation of political decisions (Keyssar, 2000, 1–76; Morgan, 1988). In the whole world, this political arrangement was unthinkable until the seventeenth century. Political thought had been dominated by the justifications of the hierarchical structure of society since ancient times. Elites and theorists themselves determined the republican discourse, which was characterized by freedom, the common good, and the rejection of every form of tyranny and oppression, but also recognized class differences, which were reflected in, among other things, the census suffrage, penalties and tax burdens, and, last but not least, the obligations to defend the home country. The hallmark of these teachings was that the greater part of mankind was viewed as fundamentally unsuitable for full participation in public life. History even seemed to confirm this view and theory. For centuries, peasant uprisings and urban unrest led political theorists to believe that “the people” with their temporary interests and foaming passions were fundamentally destabilizing for a political community (Hill, 1975).

The English Civil War and the execution of Charles I in 1649 also seemed to confirm such prejudices, although democratic approaches and ideas can be found for the first time during the English Revolution. So-called Levellers in the New Model Army and the London citizenry stood in their mistrust of the king and parliament not only for the abolition of the prerogatives of the monarch and the House of Lords, but also called for the establishment of a parliament and a government which actually represented the people, based on an egalitarian suffrage, regular elections of parliaments and administrative offices as well as the guarantee of fundamental extra-parliamentary political freedom such as freedom of expression, freedom of assembly and freedom of the press (Foxley, 2013). But the leaders of the English Revolution, Republicans, such as Oliver Cromwell and Henry Ireton, found such radical demands unworkable. In the famous Putney Debate of the New Model Army in 1647, they argued against the possibility of universal suffrage (Woodhouse, 1951 [1938]). During the following decade of the republic, the few great landowners united against the uneducated many poor and dispossessed. With the restoration of the English monarchy in 1660, the political ideas of the Levellers were finally pushed out of the public debates (Wilson, 1995).

The Glorious Revolution didn’t change elite disdain for genuine civic egalitarianism either. Even the Whigs continued the revolution that made William III king, in deliberate contrast to the turmoil of the 1640s, which had ended with the beheading of the king and the establishment of a republic. Such an approach not only gave them an opportunity to counter the popular charge of hostility to the monarchy which was a persistent argument in the Jacobite and Tory rhetoric against the Whigs; it was also in line with their political views, as the Whig chronicler Edmund Burke later made clear: One could be a staunch supporter of the rule of law in parliament, and even a Republican, without having anything to gain from democracy (Krause, 2017).

The more exciting question is of when republican and democratic thinking were differentiated in the political debates or when the democratic discourse was deliberately separated from the republican. I will investigate this question by focusing on the American debates of the early years of the republic. Based on the debates of the time, I trace how the discourse shifted from the sovereignty of the monarch to parliamentary sovereignty and finally to popular sovereignty. The decisive discourse for the development of democracy, however, did not question parliamentary representation as such, but called for citizens to be involved in the legislative and executive processes. Already Alexis de Tocqueville emphasized in De la Démocratie en Amérique that, above all, the development of democracy in America can be used to study how the traditional republican discourse, as found in Europe, differs from the democratic one (Tocqueville, 2010, vol. 1, 68). What, in his view, primarily influenced the democratic development in America was not the constitutional principle of popular sovereignty or the adoption of certain parliamentary practices, but the habits cultivated through collective experiences of freedom and respect for the voice and rights of all citizens between elections. However, the period of my investigation does not refer to the 1830s, as with Tocqueville, but to the time of the American Revolution and the early years of the Republic.

2 No Taxation Without Representation: The Battle Cry of the Revolution

When popular sovereignty became a political buzzword in America in the second half of the eighteenth century, its rise to prominence was anything but spontaneous. As early as the seventeenth century, religious sectarians and dissenters had preferred to flee to New England rather than to live under the Tudor monarchy and at least carried with them a strong idea of local self-government into the English colonies.Footnote 1 The most popular anti-monarchical pamphlet of the Revolution, Thomas Paine’s Common Sense, deliberately contained numerous allusions to old political demands of the Levellers, whose views could be found in the writings of John Lilburne, William Walwyn, Thomas Prince and Richard Overton (Foner, E., 1976, 76–77; Foxley, 2013; Pole, 1966, 514; see Krause and Foxley in this book). Nevertheless, there were now far better conditions for the development of democracy. Colonial charters, like the English Constitution, stipulated ownership requirements for election, usually real estate, but in the newly settled colonial areas, where land was significantly cheap, over 70 percent of white men were now able to meet this qualification (Wilentz, 2005, 6).

The simple acquisition of land made the colonists citizens of a society of owners, as Wilentz argues. This had far-reaching implications. Therefore, unlike in Britain, it was more common in America to be represented in the municipal assembly or to hold local office as a member of the middle class (Wlilentz, 116, 138–139). Accordingly, in the colonies the habitus of administrative officials, judges and military commanders was far more egalitarian. Added to this were the diverse forms in which localities and independent religious communities organized themselves and rejected the development or consolidation of new hierarchies (Tocqueville, 2010). Some British visitors and American royalists, therefore, viewed the colonies as primitive societies (Brown, 1955; Brown & Brown, 1964, Krause, 2017, 80–100). However, as Wilentz has shown, a look at colonial democracy and, in particular, the differences to Great Britain can also be deceiving (Wilentz, 2005, 13–71). In the older, long-settled rural areas, but also in the fast-growing coastal cities, the proportion of voters was much lower than in other parts of the country. Fixed ownership and power structures strengthened the influence of local families. Most of them had once gained favors, wealth, and political prestige through royal charter, and they still benefited from the colonial treaties (Dinkin, 1977, 40–49; Kornblith & Murrin, 1993). In their political ideas, James I and Charles I had never allowed their parliaments to interfere in colonial affairs, for they had viewed and administered the colonies as the private domains of the Crown.

Accordingly, some Americans attributed the origins of the imperial crisis of the 1760s to the defeat of the royalist cause in the seventeenth century and the inadequate reorganization of the status of the colonies after the execution of Charles I. The Navigation Act of 1651, which had been passed by the Long Parliament, stated that thenceforth all dominions and territories of the Crown were subordinate to the British Parliament, although the Americans had never ratified it (Burke [pseud.], 1837, 339). Rather, they saw it as an act of legislative “usurpation” that had survived the Restoration of 1660 and was now used to rule the American colonies from London. Until the 1760s, however, disputes between the British authorities and American colonies were mostly resolved in a conciliatory manner, as the Whig coalition, which dominated British politics, was aware of the fact that James Francis Edward Stuart, the son of James II, was not only alive, but was also supported by the Jacobites as a pretender to the throne of Scotland and England.

This changed after 1745 when the Jacobites’ last attempt to bring the House of Stuart back to the throne failed. The new alliance of conservative Whigs and Tories, which was also supported by former Jacobite and Catholic groups, was now far less open to American interests (Wilson, 1774). With this, the Americans’ ability to influence colonial politics through informal means began to dwindle significantly. In fact, until then, many different organizations had effectively advocated American interests in London (see Olson, 1992, 138). However, through the application and enforcement of British law, the American colonists now clearly began to sense that the mother country was no longer paying any attention to their interests. The attempts by London to increase British control in the colonies were, therefore, seen as a serious threat and, above all, as an attack on their self-government secured by the colonial treaties (Drayton, 1774; see Barrow, 1968; de Figueiredo et al., 2006). For Americans, a clear breach of these treaties was the Currency Act of 1764, which regulated paper money issued by the colonies (Egnal & Ernst, 1972).

When the British began to keep a standing army in America after the Seven Years’ War, the situation worsened. In order to cover the costs, they began reforming the tax system. The beginning was the Sugar Act in 1764. Although this tax had existed since the 1730s, it had been largely bypassed by the Americans. But now the tax would be enforced, also with the help of the military. There was resistance from those affected and the colonists undertook several effective protests to boycott British goods (Morgan & Morgan, 1995 [1953]).

In 1765, the British Parliament passed the Stamp Act, a law that set taxes on paper, playing cards, and all legal documents drawn up in the colonies. Since this tax affected practically everyone, the reaction in the colonies was ubiquitous. From the point of view of the Americans, the law represented a high point in the measures directed against the colonies, as it was the first time that a general direct tax was levied. It was, therefore, the occasion of numerous protests and a Stamp Act Congress held in New York from October 7 to 25, 1765, at which representatives from nine of the thirteen colonies were represented. Congress passed the Declaration of Rights and Grievances. It reads, in part:

[…] That it is inseparably essential to the freedom of a people, and the undoubted rights of Englishmen, that no taxes should be imposed on them, but with their own consent, given personally, or by their representatives. […] That the people of these colonies are not, and from their local circumstances, cannot be represented in the house of commons in Great Britain. […] and that no taxes ever have been, or can be constitutionally imposed on them, but by their respective legislatures. […] That all supplies to the crown, being free gifts of the people, it is unreasonable and inconsistent with the principles and spirit of the British constitution, for the people of Great Britain to grant to his majesty the property of the colonists.Footnote 2

The justification referred to the old colonial treaties, according to which only the monarch could collect taxes with the consent of the colonial parliaments (see also Hopkins, 1764; Howard ,1765).

However, the British Prime Minister George Grenville advocated the theory of virtual representation, according to which the entirety of the English subjects and thus also the colonists are represented “virtually” in parliament. The Americans, therefore, began to argue that the British Parliament was not empowered to act on their behalf, not because the Americans did not send representatives to the House of Commons, but because the colonies had never recognized the authority of the British legislature over them (see Howard, 1765; Bland, 1766). There were only the seventeenth-century colonial charters and treaties that subsequent generations of British Americans had tacitly consented to. And these not only authorized the inhabitants of the American colonies to establish their own colonial parliaments, but they also made clear that the King and his successors were only allowed to raise taxes in the colonial areas together with these parliaments (see Drayton, 1774).

This argument can also be found in Alexander Hamilton’s pamphlet The Farmer Refuted (1775). George III, he declared, “is King of America by virtue of a compact between us and the Kings of Great Britain. These colonies were planted and settled by the Grants, and under the Protection of English Kings […]. So that, to disclaim the authority of a British Parliament over us, does by no means imply the dereliction of our allegiance to British Monarchs. Our compact takes no cognizance of the manner of their accession to the throne. It is sufficient for us, that they are Kings of England. The most valid reasons can be assigned for our allegiance to the King of Great Britain; but not one of the least force or plausibility for our subjection to parliamentary decrees.” It was the parliamentary laws of Great Britain which destroyed the freedom of the Americans because they claimed an authority to which the Americans had never consented (Hamilton, 1775, 5).

Hamilton’s remarks must of course be read in the context of the imperial crisis. According to him, the King had been empowered to exercise a variety of powers over British America, but could not tax the colonies without the consent of their legislatures. Whether or not he was giving his approval to a parliamentary tax law, it was the approval of the colonies that was required in order for taxes to be levied on their territories (Adams, 1983 [1782]). Taken by itself, however, the royal prerogative argument meant that the colonies were bound exclusively to Great Britain by “the person and prerogative of the king” (Hamilton, 1775, 16). But the British monarchy had changed significantly after the English Civil Wars. The King was no longer able to function as the pervasive power of the empire. The constitutional regulation after the Glorious Revolution had finally subjected the monarch to the British Parliament and drastically curtailed his prerogatives. Even the supervision of the colonies was now exercised by authorities controlled by a parliamentary majority. Some accused the Americans of the late 1760s and 1770s of wanting to turn the English constitution back more than a hundred years in order to ultimately free the King from his parliament and to restore the old prerogatives of the crown (A Revolution Whig, 1775; Hansard, 1806–1820, 771). The Americans were “pleading for the Extension of the Prerogative of the Crown […] beyond all the Bounds of Law, Reason, and of Common Sense!,” explained Josiah Tucker (1766, 7–8). For America, however, the reference to the colonial documents secured a form of self-government and administration that the British Parliament denied them:

[…] our colonies make laws for themselves in their own assemblies, without thereby actually declaring themselves independent states, unless what they enact is only of force, so long as it is not inhibited or reversed by the parliament of Great Britain. And while their power stands thus limited by a superior authority, whereof they themselves have no share, they cannot be considered as a free people. For they are subject to laws and regulations not of their own making, which is the very definition of slavery. (Wilkie, 1769, 21)

From the 1660s onwards, one of the Americans’ main defensive arguments against the British tax efforts was directed against the theory of virtual representation that was predominant in Great Britain (Bland 1766). In the tradition of parliamentary sovereignty, as advocated by Henry Parkers in defense of the House of Commons against the Crown and House of Lords during the English Civil War, the Americans argued that a people could only be called free if it is subject to law enacted by a parliament formed by way of free elections (Hicks 1768; McIlwain, 1910). This did not criticize representation as such, only the idea of a virtual representation: “An equal representation, indeed, is a thing scarcely practicable, and what England herself cannot boast of; but the Americans cannot properly be said to have the smallest share in it” (Wilkie, 1769, 37. See also Bland, 1766; Hicks, 1768). How could the interests of the Americans be protected by Members of Parliament in Great Britain if they were not even allowed to vote and thus had no influence on the composition and decisions of parliament?

This question, which was raised again and again after the Stamp Act, was further developed by the Americans into their own theory of political representation (see Nelson, 2016). Thus, while most authors agreed that “every part of the British Empire is bound to support and promote the advantage of the whole,” each part of the Empire nevertheless had “a different degree of dependence on the parent state” and could not be fairly taxed by a House of Commons that represented only England and Scotland. Therefore, John Joachim Zubly declared in 1769 that people who have not appointed a representative must represent themselves. For this author the right of the British Commons to collect taxes arose from the fact that Members of Parliament were elected by the people who were to pay those taxes and thus acted as their representatives. Even if other qualifications could be made, such as that a man has to be a born British, subject to the King, representative of a certain class, etc., none was as “absolutely necessary” as the act of election. Parliament’s legislative power thus depended on free elections, and its decisions applied only to those who could participate in them (Zubly, 1769, 16, 21–22).

For Zubly it was, therefore, obvious that there could be no taxation without representation. If representation arises entirely from the free choice of the people, it was clear that the elected were not representatives per se, but only by virtue of their election. The British electorate, consequently, could not give their representatives the right to tax Americans, even if their election unquestionably empowers them to approve or disapprove of any tax measure they may deem appropriate or inappropriate for their constituents or the Kingdom in general. “If the representatives have no right but what they derive from their electors and election, and if the electors have no right to elect any representatives but for themselves, and if the right of sitting in the House of Commons arises only from the election of those designed to be representatives, it is undeniable, that the power of taxation in the House of Commons cannot extend any further than to those who have delegated them for that purpose; and if none of the electors in England could give a power to those whom they elected to represent or tax any other part of his Majesty’s dominions except themselves, it must follow, that when the Commons are met, they represent no other place or part of his Majesty’s dominions, and cannot give away the property but of those who have given them a power so to do by choosing them their representatives” (Zubly, 1769, 17–18).

This passage embodies the most complete rejection of the parliamentary theory of virtual representation. If entire territories were excluded from the election per se, nobody could claim to represent the citizens of these areas, even if it undertook to act in the interests of the common good. Behind this was perhaps the boldest pre-revolutionary proposition, namely that any representation must be based on election. No parliament had legitimacy if it was not authorized by the citizens in free elections.

The thesis was further developed by James Wilson, whose work Considerations on the nature and the extent of the legislative authority of the British Parliament from 1774 was widely used in the colonies. For Wilson, Zubly showed the way out of the imperial crisis: The British in Great Britain were bound by the laws of Parliament because they voted on them through their representatives. But why were Americans bound by the Members of the British Parliament? “Are they elected by the Americans? Are they such as the Americans, if they had the power of election, would probably elect? Do they know the interest of the Americans? Does their own interest prompt them to pursue the interest of the Americans? If they do not pursue it, have the Americans power to punish them? Can the Americans remove unfaithful members at every new election? Can members, whom the Americans do not elect; with whom the Americans are not connected in interest; whom the Americans cannot remove; over whom the Americans have no influence – can such members be styled, with any propriety, the magistrates of the Americans?” (Wilson, 1774, 15; see also Baldwin 1774) Though combining several arguments, Wilson’s fundamental political message is unmistakable. He, like Zubly, claims that the House of Commons only represents Britons in Britain because only their members are elected by them (Wilson, 1774, 21). They are also the ones, and that is the second important point, to have control over parliament and all political offices: “At the expiration of every Parliament, the people can make a distinction between those who have served them well, and those who have neglected or betrayed their interest: They can bestow, unasked, their suffrages upon the former in the new election; and can mark the latter with disgrace, by a mortifying refusal” (Wilson, 1774, 8). But what influence did the Americans have? The dividing line from the then current theory of representation in Great Britain was clearly drawn by Wilson: If representation required authorization and this was done through elections, it could not be said that a hereditary monarch or the House of Lords represented the people. The House of Commons was also not a representative body for the Americans because they had neither voting nor control rights.

Wilson’s argument not only provided a justification for the War of Independence, through which the Americans broke away from the British Commonwealth and thus from the King and the British Parliament. It was also a provocation to the Americans. Taken too literally, the axiom that government must be based on popular consent when mixed with the assertion that all human beings have equal and natural rights, as in the Virginia Declaration of Rights passed in 1776, represented the legitimacy of the question of newly constituted states (Nelson 2016). Because the belief in the need for a mixed government was vehemently defended in America too (Wilentz, 1991, 8–14). Only Pennsylvania broke with the ideal of mixed government in the 1770s, which held that the various parts of the legislature should reflect social hierarchies. In all other newly established states, the aim was to combine the upper houses of the legislative bodies with the representation of property interests, always on the assumption that men who have property also have a greater claim to political authority than those who do not. With specifically tailored electoral districts that favored the affluent classes, the establishment of strict property requirements for office holders and, last but not least, the rejection of electoral procedures when filling offices, class privileges, and power structures were also consolidated. Calls for expanded voting rights and egalitarian representation in the form of a unicameral parliament were fought against.Footnote 3

It wasn’t until armed riots broke out in Maryland that property ownership requirements for voters were reduced. In New York, New Jersey, New Hampshire, North Carolina, and South Carolina, suffrage was expanded under popular protest. And while many important state offices continued to be appointed, the new constitutions took the powers of appointment out of the hands of the governors and turned them over to the legislature or to a combination of executive and legislative branches (Keyssar, 2000, 16–17; Kruman, 1999, 65–81, 92–98; Wood, 2011, 143–150; see also Kinghoffer & Elkins, 1992). All of these were important impulses that ultimately influenced the debates on ratification of the American Constitution.

3 The Constitutional Debate Between Federalists and Anti-Federalists

The powers of the Confederation, which the thirteen former colonies founded after the War of Independence to secure their independence, extended to a few, narrowly defined subject areas. The only decision-making body of the Confederation was the Confederation Congress, a unicameral body of delegates with legislative and executive functions in which every state, regardless of its size, had the same voting power (see Heideking & Mauch, 2008, 44–48). The serious political, financial, and economic problems with which the new United States was confronted, however, could not be overcome in the long term with a purely confederal arrangement (see Middlekauff, 2005, 611–615).

Especially in view of the impending bankruptcy of the United States and of some individual states, the realization gradually gained acceptance that a fundamental reform of American economic and financial policy was inevitable. Above all, the powers of the Confederation Congress should be strengthened in this area. For some—among them Alexander Hamilton and James Madison, who at the time were already supporters of a pan-American idea and staunch opponents of the state-union model (see Millican, 1990, 27–29)—these relatively modest reform plans did not go far enough (Middlekauff, 2005, 620). In their view, the internal and external affairs of the United States could not be adequately managed within the framework of the existing political structures. They, therefore, called for a comprehensive revision of the Articles of Confederation. At first, however, public opinion was rather skeptical of this request. The persistently poor economic situation, the fear of financial collapse, and the violent farmers’ uprising, which became known as the Shays’ Rebellion, caused a change of mood around the turn of 1786/1787 and paved the way for comprehensive reforms (see Wood, 1982, 465–467).

In 1787 a convention met in Philadelphia, at which the Articles of Confederation were to be fundamentally revised. The Congress had previously officially asked each of the states to participate in the deliberations. Each state should be represented by a delegation and have equal voting rights.Footnote 4 During the deliberations, however, the delegates came to the conclusion that the aim of strengthening the Union of States could not be achieved with the Articles of Confederation. In order to make the union of the thirteen American states capable of acting, the Philadelphia Convention decided to break with the structures.

With this decision, the Philadelphia Convention clearly exceeded its mandate, which had been given to it by Congress and the state legislatures. The delegates gathered in Philadelphia no longer discussed a revision of the existing constitution, but set about drawing up a new constitution. There were controversial discussions about the structure, powers, and electoral provisions of the future central government, as well as fierce disputes over the slave question (Meyerson, 2008, 67–68; Middlekauff, 2005, 642–644), but the delegates also agreed that the continued existence of the United States could only be ensured by building a central authority with extensive powers. Only in this way it was possible for them to defend the country against external enemies, to settle the conflicts between the states peacefully, and to establish and maintain a unified economic and currency area. Finally, on September 17, 1787, a draft constitution was passed. It was accepted by the Confederation Congress and then submitted to the states for ratification.

However, the document did not only evoke approval. The pros and cons were publicly debated in the states for months, with two heterogeneous political camps forming: the supporters of the constitution, who called themselves “Federalists,” and their opponents, the so-called Anti-Federalists. The latter already disapproved of the way in which the delegates of the convention had disregarded the mandate given by the Congress. They neither wanted to tolerate this unauthorized action nor to legitimize it afterward. Their aim was, therefore, to ensure that there was a broad debate on the proposed constitution. Accordingly, they asked citizens to see the proposal for themselves. They appealed to them to carefully examine the text and to accept the work of the convention not only because of the reputation of its delegates—two thirds of the delegates had already been members of the Confederation Congress or the Continental Congress and were accordingly well-known politicians (Stewart, 2007, 168).

The Anti-Federalists needed time for this—and they obtained it by way of two arguments. On the one hand, they declared that there was no shortage of time. Despite the shortcomings of the Articles of Confederation, there was no need for the citizens to act rashly. As Elbridge Gerry pointed out in the Massachusetts Centinel: “It may be urged by some, that an implicit confidence should be placed in the Convention; but, however respectable the members may be who signed the Constitution, it must be admitted that a free people are the proper guardians of their rights and liberties; that the greatest men may err, and that their errors are sometimes of the greatest magnitude.”Footnote 5 On the other hand, the Anti-Federalists criticized the fact that the content of the deliberations had been kept strictly confidential. In itself, this was not unusual: The Continental and Confederation Congresses had already taken place behind closed doors. But the Anti-Federalist criticism expressed a political stance that made secret debates under a republican government unacceptable. Transparency was declared the symbol of the new republic, while secrecy was seen as characteristic of conspiracies and especially the corrupt monarchy in England (Kaminski, 2005, 142–143; Stern, 1997).

Thus, the Anti-Federalists began to argue that, unaware of how the draft constitution was developed and debated in Philadelphia, the citizens remained insufficiently informed to make a qualified decision about it. During the Pennsylvania Convention, “Columbus” argued in the Pennsylvania Herald that the federal assembly carefully examined every clause and sentence in several months of daily discussion and debate; a process about which the public is still in the dark. Not only will citizens be deprived of the opportunity to reflect on the elements of this new constitution and propose changes, as the delegates in Philadelphia have done, but they will also not be able to properly understand the compromises. “Columbus” compared the Federal Assembly with the Catholic Cardinal Assembly, which meets behind closed walls and doors to elect the Pope, which is certainly intended to arouse suspicion in view of the widespread anti-Catholic prejudice (Jensen et al., 1976, 313–314). But the assertion that the public must have insight into the deliberative process in order to be able to properly evaluate its results was also an articulation of how political representation should function in a republic. The “Republican Federalist” declared in the Massachusetts Centinel in early 1788 that if the delegates had asked the public about their project, the most important questions and points of criticism could have been discussed in advance by a broad majority of the population (Jensen et al., 1976, 591).

The openness of the deliberative process became essential for the Anti-Federalists to accept the results. They, therefore, criticized the fact that in the course of the debates a “system of consolidation” with “profound secrecy” and “without the least authority” was created and even the result of these deliberations “suddenly and without any previous notice” by the Federal Assembly had been sent to the legislative assemblies of the states for ratification (Jensen et al., 1976, 591). However, precisely because of the procedure and because the proposed constitution was not to be ratified by special conventions in each state, but only by legislatures already in session, they remained clearly aloof. In the spring of 1788, “A Plebeian” pointed out in a brochure that because the debates of the Federal Convention remained “an impenetrable secret,” the citizens had no opportunity to form a well-informed and well-considered opinion on the subject. Only after the constitution was published did a free discussion begin, which brought to light both the shortcomings and the strengths of the draft constitution. The author used the revelation of the document’s strengths and weaknesses to advocate that a further convention be convened in order to incorporate the results of these subsequent discussions into the new constitution.Footnote 6 Indeed, the idea that new proposals are discussed, and that these proposals should then be ignored in the course of the ratification process, was utterly disconcerting to the Anti-Federalists. Thus, they vehemently called for a second convention to generate the necessary legitimacy that the first lacked.Footnote 7

With their criticism, the Anti-Federalists ensured that at least the ratification conventions of the states resulted in procedures that enabled extensive transparency. The case of the Pennsylvania Convention is a good example of this. In view of the criticism that the convention was convened under time pressure and that it did not adequately represent the citizens, the delegates decided to issue reports on the deliberations. A report by the Pennsylvania Herald highlighted that a convention had met because the entire population could not have been called to decide on the new constitution: “Whatever therefore is transacted by the Convention is, in fact, transacted by the people,” the paper proclaimed. The convention embodies the people. For this reason, the interests of the citizens are represented, even if they are excluded from the events there. In addition, according to the author, the confidentiality policy of the Federal Convention cut off the delegates from the people and is therefore itself “the source of all the opposition that is now made” (Jensen et al., 1976, 331; see Heideking, 1988, 261; Maier, 2010, ix).

A letter from “Hampden,” printed in the Pittsburgh Gazette in February 1788, also makes obvious how important the public consultations were. The author notes that many people who initially had “unsuspecting confidence” in the convention and were generally satisfied with the result changed their minds after being informed of the confidentiality policy (Jensen et al., 1976, 664). The result is inseparable from the legislative process, however necessary one considers it to be. Behind this, of course, was the fear that a repetition of the procedures of the Federal Convention could be taken over by the new government. Is it not better for America to cast off “the veil of secrecy,” Patrick Henry asked in June 1788 at the Virginia Convention on Ratification. Freedoms are always at risk where “transactions of their rulers” may be concealed from citizens. Shielding the “common routine of business” from the public is nothing less than an “abomination” and would lead to “iniquitous plots” (Jensen et al., 1976, 1066–1067).

In New York, delegates proposed an amendment calling for congressional newspapers to be published “at least once a year.” The delegates further stated that both Houses of Congress shall always keep their doors open during their sessions, unless the business may in their opinion “require secrecy.” As a result, it was not just the confidentiality policy of the Federal Convention that gave Anti-Federalists cause for concern. Rather, they feared that the constitution itself would not be sufficient to guarantee the public relations work of the members of parliament and the transparency of the new government (Jensen et al., 1976, 2239).

However, the Anti-Federalists’ criticism of the constitution was not aimed solely at transparency guidelines. Many of their allegations were fed by their republican thinking. It has been taught since ancient Greece that republics can only thrive on a small scale. A manageable territory was considered an indispensable prerequisite for active citizenship and the learning of civic virtues.Footnote 8 The political order that was to take the place of the Confederation, however, threatened to burst this territorial framework: “The idea of an uncompounded republick, on an average, one thousand miles in length, and eight hundred in breadth, and containing six millions of white inhabitants all reduced to the same standard of morals, or habits, and of laws, is in itself an absurdity, and contrary to the whole experience of mankind. The attempt made by Great Britain to introduce such a system, struck us with horror, and when it was proposed by some theorist that we should be represented in parliament, we uniformly declared that one legislature could not represent so many different interests for the purposes of legislation and taxation. This was the leading principle of the revolution, and makes an essential article in our creed” (Agrippa 4.6.15–17).

In view of the seemingly irreconcilable regional and social conflict of interests, many opponents of the draft constitution considered the implementation of a Union policy for the common good to be almost impossible. For this reason, they repeatedly drew attention to the grim fate of the republics, which in the course of history had fallen victim to the strife of rival interest groups struggling for supremacy (Brutus I). In their disagreement with the proposed order, they, therefore, elaborated patterns of argumentation aimed at preserving the existing states, protecting their competences, and, most importantly from the perspective of democratic theory, reinforcing the dependence of representatives and officeholders on citizens.

Like the Federalists, the Anti-Federalists were primarily concerned with preventing abuses of state power. And like the Federalists, they believed that accountability to the citizenry was an important, if not the crucial, mechanism for preventing republican government from drifting into aristocracy or monarchy. But contrary to the Federalist, for them this accountability was not allowed to be redeemed only in elections. This does not mean that they did not take elections as seriously as the Federalists, but they denounced the elitist spirit expressed by the Federalists in defending the federal order. Thus, Federalists tended to view centralized authority and greater distances between citizens and government as necessary to avoid convoluted and ineffective forms of accountability, which they equated with antiquated models of direct democracy (Federalist No. 10, 44, 40). For them, preserving the ability to govern also involved extending electoral terms and limiting representatives to a small, select group of enlightened citizens “whose limited number, and firmness” were seen as a bulwark against impetuous stirrings and sudden impulses (Madison, 1999, 69–79, 80–88, 110–112, 142–157).

The Anti-Federalists, on the other hand, pointed to the problems that resulted from excessively long election cycles. They defended the existing practice of annual elections and tended to believe that two-year terms for representatives and six-year terms for senators were simply too long to ensure what Centinel called “a due dependence and accountability to their constituents” (2.7.22; see also The Federal Farmer, 2.8.147). Long terms in office, it was feared, gave representatives an incentive to disregard future electoral balances and thus to pursue interests other than those of their constituents. “Brutus,” for example, remarked of the Senate, “Men long in office are very apt to feel themselves independent [and] to form and pursue interests separate from those who appointed them” (2.9.200). Along these lines, many Anti-Federalists also argued that the states should retain the power to recall senators (see “Address by A Watchman,” 4.22.4; Agrippa, 4.6.45; Amicus, 1965, 152–154; Brutus, 2.9.201; Smith, 6.12.29; The Federal Farmer, 2.8.147). Such a provision had already existed in the Confederacy; and its omission in the proposed Constitution merely reflected, for the Anti-Federalists, the general shift of political responsibility from the states to the federal level (Kurland & Lerner, 1987, 225). As an accountability mechanism, they believed, the recall option would help states continue to ensure that their representatives were performing well. In addition, they hoped that the recall option would help activate local actors to keep an eye on the federal government. Indeed, where there were opportunities for action, citizens and states alike had an interest in exercising their checks and balances (2.8.147).

This concern about the waning of vigilant citizens’ attention was characteristic of the Anti-Federalist approach. “Centinel” was particularly outspoken on this point: The highest level of accountability, he argued, must be achieved through a simple governmental structure, since the great mass of the people could never pay constant attention to the business of government and could easily be deceived for lack of adequate information. Therefore, he said, there is a special danger in the federal structure. It makes the whole system of government even more complicated. Citizens can no longer easily penetrate responsibilities and thus abuse of power or misconduct. For “Centinel,” this also included the planned bicameral system. Not only did this compromise government accountability by extending legislative terms beyond reasonable limits, he said, but it also impaired the ability of voters to correctly determine who should be held accountable for legislative actions. A better form of government for him, therefore, was a unicameral parliament (2.7.10), because it tied the legislature more closely to the citizens rather than removing it ever further from their influence.

This approach also informs the Anti-Federalists’ critique of the size of the legislative body. In general, they believed that the legislature should be large enough to ensure that the various strata of society have meaningful opportunities to hold government accountable. As Melancton Smith put it, expanding the legislature would be the most effective and natural way to prevent abuses of office in government. For Smith, however, given the size and diversity of the Union, the House of Representatives was only a shadow of actual representation. “Reason revolts at the idea,” he declared, “of the liberties of three millions of people being entrusted to so few men” (6.12.19).

“Centinel” expressed similar skepticism about the House of Representatives: “The number of the representatives (being only one for every 30,000 inhabitants) appears to be too few, either to communicate the requisite information, of the wants, local circumstances and sentiments of so extensive an empire, or to prevent corruption and undue influence in the exercise of such great powers” (2.7.22). This characteristic emphasis on different social and local realities within the larger republic represented a concern that the powers of government might be abused, not only because representatives did so intentionally, but also because they did not know any better. Regardless of their own (in)abilities and good intentions, representatives had to rely on citizens to expose grievances and mobilize political forces to correct them. The extent of representation, however, influenced the nature of such civic participation. A relatively small number of representatives, it was feared, could create a knowledge gap between individual citizens and their representatives. Behind this, of course, was also the fear that the voices of smaller, often rural communities, in particular, would be pushed out of the focus of a distant government.

Unlike the Federalists, the Anti-Federalists consequently tended to believe that representatives of a republican government should, in George Mason’s words, “know and sympathize with every part of the community” (Madison, 2014, 14). This was a frontal attack on Alexander Hamilton’s rejection that all interests could or should be represented in a society. Thus, Melancton Smith argued that in the representation of a free people, knowledge goes beyond what “men of refined education” have acquired in their leisure time. Rather, it should include those “common concerns” of “which men of the middling class of life are in general much better competent to, than those of a superior class” (6.12.15; cf. also Aristocrotis, 3.16.1–19; The Federal Farmer, 2.8.143–147). Consequently, the hope was that an increase in the size of the legislature would lead to middle-class men also having a chance to run and be elected, and thus the interests of these social groups would be taken into account. While the Federalists wanted to avoid precisely this, namely the involvement of less competence and more passion in government, for the Anti-Federalists this was a fundamental condition for a government close to the people.

Consequently, the most fundamental difference between Federalists and Anti-Federalists, as the later political debates in the 1790s also made clear, was a different conception of political participation. Not only institutional efficiency and good governance, as with the Federalists, were the focus of the Anti-Federalists, but the maintenance of a political culture of citizen participation. In this sense, they defended liberties, institutions, and procedures designed to promote citizen involvement in political processes (see Madison, 1999, 498–499, 532–533), in contrast to the Federalists, who paid much less attention to the influence of institutions on citizens’ ability to play their role in the public sphere.Footnote 9 For the Anti-Federalists, however, it was a mistake to rely on a vigilant citizenry that was disconnected in principle from the institutional context in which they lived (6.12.20). Consequently, what mattered was not only that citizens could influence government through elections, but also how citizens’ capacity as citizens was fostered. They, therefore, repeatedly emphasize that a person’s character is influenced by government and laws, and that this relationship was not given sufficient attention in the drafting of the proposed Constitution (see Elliot, 1836–1845, Bd. 2, 250).

In this sense, the proposed Constitution, which would add another layer of new federal authority to local and state government institutions or, at least for the Anti-Federalists, also disempower them, meant a threat to the political culture of citizen participation and accountability because federal institutions were too far removed from citizens and local problems. While the Anti-Federalists still agreed with the Federalists that federal elections could produce a new political culture, they were skeptical about citizen participation overall. If citizens were expected to engage with the federal government only every few years at election time, their political skills would remain underdeveloped. It was, therefore, crucial to foster a republican spirit outside of election times and, more importantly, outside of government. From this perspective, a certain amount of disorder was not only to be expected but even welcomed as part of the vibrant public life in a diverse republic.

For this to happen, however, citizens themselves had to develop knowledge of their rights and freedoms. In this sense, the Anti-Federalists defended the importance of local self-government, which they considered fundamental to the republican self-image of citizens since colonial times. But citizens should also play a decisive role in the judiciary. Already in the debates on the constitutions of the individual states, the jury, also known since colonial times, was defended as an important local institution. It offered the opportunity to involve citizens in the administration of justice and to train them accordingly. Nevertheless, the draft of the new Constitution initially contained only limited recognition of the role of the local community in judicial proceedings. Anti-Federalists such as Hugh Williamson, Nathaniel Gorham, Eldridge Gerry, George Mason, and Roger Sherman, therefore, defended the jury as a “right of the people” in constitutional debates (Farrand, 1937, 587–588). In doing so, they significantly expand the jury’s understanding. The latter, they argue, is an important bulwark against executive arbitrariness and at the same time a public school for citizens’ understanding of the law. It is important for vetting officials, they argue, and at the same time breaks the institutional advantages of an elitist officialdom because it provides laypeople with a basic understanding of the law. Without the jury, wrote the “Federal Farmer,” citizens would be outsiders, vulnerable to government encroachments that would be all the more dangerous because they would take place with the help of the law (Federal Farmer IV/XV). The jury, however, allows citizens to enter the courtroom rather than banish them from it. It is the guarantor that the community does not leave this space to the judges and defendants alone.

However, Federalists also ultimately support the community’s right to public trials (Federalist No. 83, in Hamilton et al., 2005, 451). James Madison linked the interest of the community to the right to trial—in both civil and criminal cases. He described the jury trial as the “right of the community” to pass judgment on the misconduct of a fellow citizen. In response to the specific criticism of the Anti-Federalists that the Constitution dispensed with the local connection of the jury, however, Madison strengthened the argument that the legislature should have the discretion to decide the composition of the jury, an objection that approached from a concern about not being able to convene a neutral jury at the local level under certain circumstances (Elliot, 1836-1845, vol 1, 537).

When the draft of the Federal Constitution was finally approved on July 26, 1788, by a slim majority of 30 to 27, it contained a number of additional articles incorporating freedom of religion, freedom of speech, freedom of the press, freedom of assembly, and the right to petition the government for the redress of grievances (Rakove, 1996, 600–604). The Anti-Federlists had also sued for these freedoms in order to preserve the ability of citizens to actively intervene in politics and hold their representatives accountable. No fewer than four of the Amendments related to the modalities of legal proceedings. The Fifth Amendment strengthened the individual rights of the accused. The Sixth Amendment affirmed the collective right of the jury. Thus, on the one hand, it secured for the defendant the right to a free and open trial, but, on the other hand, it also emphasized the collective nature of the jury court, because the jury not only had to be “impartial,” it also had to be composed of jurors who came from the communities where the crime was committed. The seventh Amendment also guaranteed a trial by jury for civil cases in which the amount in dispute exceeded a value of 20 dollars. This also fulfilled an important demand of the Anti-Federalists, who had called for juries in both criminal and civil law.–

The Bill of Rights changed the republican character of the Constitution. This not only affected the inclusion of ordinary citizens in the processes of legislative, administrative, and judicial power. The extensive rights to freedom enabled citizens to significantly expand their opportunities to criticize and influence political and administrative decisions. In research, however, it is still disputed today how democratic the impulse was that emanated from the constitution as a whole. Many continued to describe what they believed to be the aristocratic and centralistic character of the Constitution (Elliot, 1836–1845, vol. 2, 102, 246–247; see also Amar, 1998; Bowling, 1998; Brooks, 1967; Rakove, 1996, 288–338; Rutland, 1955; Veit et al., 1991; Wilentz, 1991). Not convinced that there could be such a thing as a group of singular virtuous and natural leaders, these men viewed the Federalists’ claims as a cover for their pursuit of power and wealth. Under the pseudonym “Aristocrotis,” William Petrekin mocked the “nobility” who were ready to lead the government according to “true despotic principles” (Cornell, 1999, 46–48, 107–109, 216–217; Elliot, 1836–1845, vol. 2, 102). Slavery also remained a contentious issue. While the southern states railed against the provision of the constitution that allowed Congress to end the international slave trade after 1808, some northern states rejected the three-fifths compromise, which allowed three out of five slaves to be counted as persons—as a basis for both tax collection and the allocation of seats in the House of Representatives; a measure which, Melancton Smith explained, granted privileges to those “bad enough to keep slaves” and kept them as property without rights of their own (Elliot, 1836–1845, vol. 2, 227; Farrand, 1911, vol. 2, 92–94).

4 The Democratization of the American Republic

Developments over the next few years seemed to show that the Anti-Federalists were not entirely wrong in their fears about the expansion of central governmental power (Cornell, 1999, part 2). Hamilton immediately pleaded for federal government to take over the national debt, proposed the creation of a national bank, and began campaigning for commercial rapprochement with Britain. In the end, the defense against these proposals even united some Federalists with the Anti-Federalists. As Todd Estes has pointed out, in 1792 Madison began to emphasize the importance of considering public opinion in legislation (Estes, 2006, 137). Representative politics in the republican understanding as defended in the Federalist Papers did not work as expected. David J. Siemers even goes so far as to claim that Madison gave up his theory in 1791 that an enlarged republic could prevent the formation of permanent majority factions. At least after the publication of Hamilton’s Report on Public Manufactures in 1792, he was, like Jefferson, convinced that the government had to be controlled effectively—and not only on the part of the legislature, which is why they decided to take the debate outside the Congress (Banning, 1974, 180; Cornell, 1999, 167; Onuf, 2018, 15; Shankman, 2017, 65, 68, 77, 93, 111; Siemers, 2004, 92, 99; Wilentz, 1991, 40–72).

Their belief in the need to address the people also resulted from the fact that political culture had changed in the early republic. The emergence of an opposition press from 1791, headed by Philip Freneau’s National Gazette, contributed significantly to this, as it exposed the rifts among supporters and opponents of national politics. However, the republican idea of political representation, in which enlightened men decide about the common good outside of public pressure, remained predominant in the House of Representatives as well as in the Senate. It was also evident that President Washington and his administration continued to regard secrecy as an important instrument to shield the executive branch from all external pressure and to act in a representative sense for the good of all citizens. The President was unwilling to be influenced by the daily whims of the public, even though he was aware of the need to appear in public and promote his policies.

But the increasing demands for transparency gave expression to an alternative understanding of what it meant to represent the people (Breen, 2016, 46). The discourse on the secrecy of the government, therefore, became a major instrument in the young republic with which the Federalist policy was challenged: If the government passed decisions that appeared to be directed against public opinion, they were interpreted as evidence that the regime was not representative. The debate intensified when Washington issued the Neutrality Proclamation in the spring of 1793, which obliged the country to remain neutral in the conflict between Great Britain and France. Now associations calling themselves democratic or democratic-republican societies began to declare that they would watch government “with the eye of an eagle” (Foner, P., 1976, 54). It was “not only the right,” declared the Democratic Society of the City of New York, “but the absolute duty of the people, to have a jealous eye over the conduct of the government” (Foner, P., 1976, 176). The various societies stressed the importance of public “vigilance” in order to ensure “just, mild and equitable government” (Cotlar, 2011, 184). It is the right of the people to “examine the proceedings of the legislature, or any branch of government” (Foner, P., 1976, 120).

In January 1795, the Democratic Society of the City of New York published a text linking the public’s right and duty to review government procedures with the accountability of elected officials. With this in mind, it declared that the “RESPONSIBILITY of PUBLIC FUNCTIONS presupposes a RIGHT TO INVESTIGATE YOUR PROCEEDINGS” (Foner, P., 1976, 196). “Cato” made a similar claim in the Newark Gazette in March 1794 on behalf of that city’s Republican Society. “In private life if a man employs any agent to transact his business for him, he does not abandon all enquiry into the situation of his affairs, and the conduct of his agent, or if he does, the agent soon becomes master” (Foner, P., 1976, 144). Representatives were delegates of the people, accountable to those who elected them (see Foner, P., 1976, 11; Link, 1942, 6; Waldstreicher, 1997, 132–136).

Like the Anti-Federalists before them, members of democratic societies had a participatory understanding of political representation; representative politics could not be legitimate if it was conducted in secret, i.e., away from any public scrutiny. As Seth Cotlar has shown, democratic societies, therefore, tried to give the formation of public opinion an institutional basis. For them, the public was more than an inhibiting force; rather, citizens should play an active role in shaping government policy (Cotlar, 2005, 310, 312, 325). The Federalists labeled the new democratic associations, of which there were already over 30 across the country by the end of 1794, as illegal (Koschnick, 2001; Schoenbachler, 1998). The societies were not only portrayed as superfluous and a threat to the legitimate expression of popular sovereignty through representative institutions; the Federalists also claimed that societies could not be considered representative because they were only expressing the opinions of their members (Koschnick, 2001, 615–636, especially 617, 626, 633). But it was precisely this argument that the societies directed against the government: Although the election legitimized the government, the societies saw the government’s secrecy policy as evidence of conspiratorial behavior and thus a clear violation of the principle of democratic representation (Banning, 1974, 171, 184; Chesney, 2004, 1538; Martin, 2013, 86–87, 92, 99; Wilentz, 1991).

The main task of the societies was to offer their members a public forum (Schoenbachler, 1998, 237–261). Since, according to the Constitution, there was no institutional mechanism through which citizens could also raise their voices between elections, societies took on this role, combining public control with instruments of political education and identity. It is, the leaders said, an unspecified civic role that they play because only aristocrats and monarchists claim that the Constitution’s internal controls and balances are sufficient guarantees against tyranny. “Let us remember,” declared the Pennsylvania Society, that carelessness about public concerns is the direct route “to slavery,” while “vigilance” and “suspicion” are the protection of freedom (Democratic Society of Pennsylvania, Minutes, October 9, 1794; Pasley, 2001, 1–79, 176–229; Tagg, 1991). “In a Republican government,” wrote the German Republican Society, “it is a duty incumbent on every citizen to afford his assistance, either by taking a part in its immediate administration, or by his advice and watchfulness, that its principles may remain incorrupt; for the spirit of liberty, like every virtue of the mind, is to be kept alive only by constant action” (Foner, P., 1976, 53–54). With this self-image they made a major contribution to the democratization of American politics, which, although not as great as the societies originally intended, was more substantial than anything Jefferson, Madison, and others had imagined in 1789.Footnote 10

Much of the societies’ activities consisted of creating a new public space for the discussion of controversial political issues and sending circulars and petitions to the President and Congress. But they also organized protest rallies that had a larger target group. In doing so, they undermined the traditional hierarchical structures of politics by building new networks from the bottom up and articulating a new understanding of freedom of expression, freedom of assembly, association, and freedom of the press, which were now no longer claimed as an individual, but as a collective right. It is the inalienable “right of a free and independent people” to assemble peacefully and to discuss “all subjects of public interest” with determination and to publish acquired views and positions, declared a North Carolina society (Foner, P., 1976, 11). But they also made very tangible political demands such as electoral law reforms, reforms of criminal law, or the reduction of legal fees in court proceedings. The most tangible efforts for citizens, however, have been to demand public libraries and free public schools to dismantle class privileges and create enlightened free citizenship.Footnote 11 The efforts of the societies for public information, education, and participation were also an attack on still existing class prejudice and deference. These were demoralizing for the societies because they led to political apathy and, in the long term, cemented social differences. In doing so, however, they destroyed social peace in a state that declared all people to be free and equal (Independent Chronicle, March 30, 1795; New York Journal, May 31, 1794).

However, attacks on societies intensified when the Whiskey Rebellion broke out in 1794 (Slaughter, 1986, 109–189). Many democratic societies sympathized with the rebels on the matter, if not with their violent means and methods. In late September 1794, President Washington issued a proclamation condemning the unrest and its supporters. Nobody doubted that he was referring to the democratic-republican societies. As he wrote in private correspondence to Henry Lee, he believed that the societies’ agenda was “primarily to sow the Seeds of Jealousy & distrust among the people, of the government, by destroying all confidence in the Administration of it.” Therefore, he saw them as a clear threat to public order. They would permanently “shake the government to its foundations” (Richardson, 2002, vol. 1, 153–159, 155; Sparks, 1836, 429–430).

Washington asserted that he had expressed his opinion early on that these societies must be countered, later concluding that “[t]ime & circumstances have confirmed me in this opinion, & I deeply regret the probable consequences, not as they will affect me personally – (for I have not long to act on this theatre, and sure I am that not a man amongst them can be more anxious to put me aside, than I am to sink into the profoundest retirement); but because I see, under popular and fascinating guises, the most diabolical attempts to destroy the best fabric of human government & happiness, that has ever been presented for the acceptance of mankind.” He saw the emergence of societies as striking “proof” that the first “fruits of democratic societies” are ripening, and he admitted that he did not expect that it would ripen so “soon,” although he “never” had a doubt that this would be the result. He, therefore, warns against the associations that form “permanent Censors” to criticize the work of the Congress, which is composed by the “elected representatives” of the people. And although he asserted that everyone has the right to petition the government, he argued that the societies were “unconstitutional.” Their will is “to destroy all confidence in the Administration” without “knowing on what ground, or with what information it proceeds.”

In his address to Congress on November 19, 1794, he accused “certain societies” of violent rebellion. “In the four western counties of Pennsylvania, a prejudice, fostered and embittered by the artifice of men, who labored for an ascendency over the will of others, by the guidance of their passions, produced symptoms of riot and violence. It is well known, that Congress did not hesitate to examine the complaints which were presented […].” But he did not have the impression that this would pacify the dissatisfied.Footnote 12 With this, Washington also justified the military action against the riots, as he emphasized, to maintain “order” in the state.Footnote 13

In response to Washington’s criticism, the Senate also distanced itself from the democratic societies.Footnote 14 In the House of Representatives, on the other hand, there was a heated debate as to whether these societies should actually be viewed as unconstitutional or not. Theodore Sedgwick, Thomas Scott, Abraham Baldwin, Samuel Dexter, and Madison were major spokesmen in these debates. Sedgwick, who years earlier had defended freedom of assembly and association as “self-evident” (Cogan, 1997, 143–144), in the constitutional debates, so that its inclusion in the Bill of Rights was unnecessary, now argued that the societies were operating illegally.Footnote 15 Scott also condemned all societies that arouse suspicion of the government and incite rioting (Proceeding of the Senate in November 1794, 920). Moreover, even Baldwin questioned the legality of societies. However, he also asked whether the President suspected societies “in general” or whether he was referring to only those in the four western counties of Pennsylvania where the tumult had broken out (Proceeding of the Senate in November 1794, 934).

Dexter also took a negative stance, arguing that the surest way to destroy freedom is to encourage its unlimited abuse. He stressed that the most successful weapon used by the enemies of civil liberty is to drive the ideas of freedom to such wild extremes that they become practically impossible and ridiculous, forcing the sober part of the community to view usurpation as the lesser evil compared to total insecurity and anarchy, a fate that he warned would befall America. “If we fail in maintaining it [freedom], we shall be fairly considered to have made an experience not only to ourselves, but for the world, which will prove that the beautiful theory of civil freedom is not practicable by man; that ambition and envy, aided by ignorance, are naturally too strong for patriotism” (Proceeding of the Senate in November 1794, 936). Men should freely express “their opinions” in conversation or in print, but they must do so “with respect” for the “will of the majority,” the government and its representatives. What must be stopped, however, is a “band of conspirators who call for slander societies have all the properties, except the power, of absolute despotism; yet these tyrants prate about liberty, and profane the name of republicanism” (Proceeding of the Senate in November 1794, 937).

Madison, on the other hand, made clear that the Constitution was the “only rule of right and that what is consistent with that is not punishable; what is not contrary to that, is innocent, or at least not censurable by the legislative body” (Proceeding of the Senate in November 1794, 935). He also warned of the effects of a ban. Men run governments and while the honesty of their motives may prevail now, this does not offer any guarantee that this will always be the case. In the future term, a very different government than the current one will be in power. That’s why one should not be hasty in tackling something that one only dare to support now (Proceeding of the Senate in November 1794, 935). After a three-day debate, the societies escaped official criticism from the House of Representatives.

Republicans knew where the conviction would have led. “The game,” wrote Madison, was to connect the Democratic Societies with the “Odium of Insurrection” and the republicans in Congress with those societies. Wary of attacking Washington directly, the opposition rejected the motion of censure on the terse grounds that there was insufficient evidence of the societies’ association with the insurgents and that such evidence should also be judged by the courts, not by Congress. Even a general condemnation, Madison noted critically, will threaten the freedom of assembly and freedom of expression and freedom of the press. The named societies, he, therefore, emphasized, do not pose a threat to public freedom, but they are a censor for the highest organs of the state. If we advert to the nature of Republican Government, we shall find that the censorial power is in the people over the Government, and not in the Government over the people. As he had confidence in the good sense and patriotism of the people, he did not anticipate any lasting evil to result from the publications of these societies; they will stand or fall by the public opinion; no line can be drawn in this case. The law is the only rule of right: what is consistent with that, is not punishable; what is not contrary to that, is innocent, or at least not censurable by the Legislative body.

Madison had thus summed up the self-image of democratic societies. At first, however, he did little to publicly defend the role of democratic societies as part of American politics. However, Madison’s defense of public opinion as the supreme guardian of popular liberty shaped his “Report of 1800.” Here he first reiterated the assurances given by Publius more than a decade earlier. He noted that at the time of ratification, Federalists had claimed that the states will play a crucial role because they are there to “sound the alarm to the public.” But his reasoning now went beyond that, returning to a theme that had dominated much of his thinking in the post-ratification period. For Madison, the survival of the constitution and government depended on an “enlightened public” that would recognize that the republic could only be sustained by “keeping the different governments and departments act within their respective limits.” To secure this goal, the independence and vitality of the public had to be protected and promoted. At the same time, the societies have also resisted claims that they are operating illegally. “The government is responsible to its sovereign, the people,” for the faithful exercise of the powers entrusted to it, affirmed the President of the New York Democratic Society, and every segment of the people has the right to express its opinion about the government (Foner, P., 1976, 205–216). Nevertheless, after the Whiskey Rebellion and shortly thereafter the ratification of the highly competitive Jay Treaty (1795), two events which also made clear new fault lines in their own ranks, the societies no longer appeared in a comparable way in public; many even dissolved again.

5 Delimitation of Republican and Democratic Political Concepts

The impact of the aforementioned societies for further democratization in America was enormous, despite their brief revival in the 1790s. They had questioned blind obedience to the political leadership, which was elected but was not democratically controlled outside the system of checks and balances. They had made it clear that there was by no means a uniform will of the people, but rather very different local, socio-economic, and political interests. They had warned that the citizens, if they wanted to assume their role as sovereign, had to be informed, educated, and enlightened more extensively—not only through state systems, but also through free media as well as self-organized forms and civil society cooperation.

Last but not least, they had created a new political culture, which Matthew Lyon described as follows: “[d]emocratic societies […] are laughed at and ridiculed by men who consider the science of government to belong naturally only to a few families, and argue, that their families ought to be obeyed & supported in princely grandeur; that the common people ought to give half their earnings to these few, for keeping them under, and awing the poor commonality from destroying one another, which their savage nature would lead to, were it not for the benignity and good sense of the few superiors Heaven has been pleased to plant among them.” By challenging this presumption, the societies showed that the work of government was understood by ordinary citizens as well. And they called the political system that accommodated this understanding “democracy.” It was very different from republicanism of the 1770s and 1780s (Austin, 1981, 44).

The traditionally minded republicans reacted accordingly dismissively. For Washington and Hamilton, the democratic demands were heretical because they threatened the social and political order of the new republic (“To the People of the United States Approving the Conduct of the President of the United States, January 19, 1795,” New York Journal, January 21, 1795). For Hamilton’s friend Nathaniel Chipman, the societies threatened the political system with the uncontrollable passion of “simple democracy.”Footnote 16 Madison, on the other hand, saw President Washington’s attempt to smash societies as perhaps “the greatest mistake of his political life.”Footnote 17 However, opposition leaders were by no means sure whether and, if so, how societies should play a role in their own political demands. It was not until the summer of 1796 (when Washington publicly confirmed that he was not seeking another term and the upcoming election became the first competitive race for the presidency) that it became clear how important it was to reconcile the top-down-principle of republican politics with the bottom-up-connect of democratic societies (Elkins & McKitrick, 1993, 513–528; Ferling, 2004, 83–98; Sharp, 1993, 138–162; Smith, 1971, 59–98).

The description of the US political system changed accordingly at the beginning of the nineteenth century (Krause, 2017, 185–221). Above all, the practice of local self-government, which during the Revolution had been declared a solid bulwark against an overpowering central government, was now described as the cradle of American democracy (Adams, 1898). There it was shown that the principle of election, both in the municipal councils and in the nomination of civil servants, safeguarded the citizens’ political influence over the long term. Also, a further democratization of the judiciary had now been called for. In Federalist No. 78, Hamilton had still defended the right of the Supreme Court to rule on the constitutionality of laws passed by the legislatures of the country or the states with republican arguments. This historically decisive power to monitor norms, he argued, was an appropriate control over an otherwise overpowering legislature. Now it became clear, however, that the Court could also be an effective supervisory body of the executive branch. The juries at the lowest level of the courts also ensured for contemporaries, as the Anti-Federalists had already emphasized during the constitutional debates, the integration of citizens into the judiciary and thus respect for the authority of the law.

When Tocqueville visited America in the early 1830s, he described the country as the most democratic in the world. For readers in the United States and Europe, Tocqueville highlighted three things in his comparative work, which took into account developments in America and France after their respective revolutions. First, constitutional law and the rule of law were fundamental to the development of modern democracy, but they were not enough to secure democracy as a form of government in the long term. Second, there was no one definitive development toward democracy, as his comparison of the two countries made clear. The development of democracy as a form of government and society was a dynamic process that could take very different directions depending on the structure of the constitutional order and the expansion or restriction of public freedoms. Third, Tocqueville explained to his readers that the implementation of popular sovereignty was not the same as the establishment of a representative system, but rather meant that there had to be active forms of participation and control by the citizens over the legislative, executive, and judiciary even between elections.

As a result, his portrayal of American democracy rested on those political spaces of experience and action that enabled people to become active as citizens. For him, an important element of popular sovereignty was the voluntary societies and intermediary associations that lay outside the state institutions. It was not just politicians who pursued politics, but all citizens in various forms and institutions. For Tocqueville, a democracy that recognized only elected representatives between citizens and the state institutions led to a reduction in citizenship. Popular sovereignty was, therefore, not to be equated with constitutional statehood and the actions of an elected government. Rather, it meant involving citizens in political communication, decision-making, and implementation at all levels of government.

Tocqueville thus clearly rejected the republican discourse of his time. Not only did he speak out against elitist thinking (above all he had in mind the Doctrinaires in France), which, although affirming popular sovereignty, wanted to reserve the legislature and executive to a social elite through a census suffrage. He also reinterpreted the republican doctrine of virtue. In De la démocratie en Amérique, he stated that the sublime idea of “the duties” is a thing of the past (Tocqueville, 2010, vol. 2, 610; OC II, 636). The recognized doctrine of democracy no longer requires doing good for its own sake, that one has “to sacrifice oneself” for one’s fellow men because this is a “great deed” (Tocqueville, 2010, vol. 2, 610). The very thought of making a sacrifice, according to Tocqueville, went against the democratic spirit, unless such sacrifices were necessary for those who made them as well as for those who benefited them (Tocqueville, 2010, vol. 2, 610). In this sense, Tocqueville found the doctrine of self-interest to be the most adequate philosophical doctrine for the democratic age, since it required neither great sacrifices nor extraordinary virtues.

With this in mind, Tocqueville called for a new understanding of political virtue that focused more on the effects of citizens’ behavior than on its causes. Consequently, when citizens became involved in public life, whether for selfish reasons, well-understood self-interest, or altruistic motives, the effects were more decisive than the reasons. After all, what was to be expected from the expansion of the electorate, the opening of the administration to electoral offices, the extension of the citizens’ right to information vis-à-vis the government and public administration, the strengthening of local self-government or active societies, etc.? Tocqueville mentioned, first of all, the stimulation of civic awareness. Citizens in the United States were not passive spectators of government action between periodic elections. Representation at the local, regional, or national level involved the citizens in the political processes and strengthened their self-confidence as citizens. In fact, Tocqueville was convinced that strong citizen participation would ensure ever new political freedoms and thus constant democratization of the state and society.

6 Why the Distinction Between Republican and Democratic Thinking Is Important: A Short Summary

When the American Revolution and its legacy began to be reevaluated in the 1960s and 1970s, the main interest shifted away from socio-economic questions, as these had influenced Marxian or Marxist-inspired interpretations of history, especially in Europe at the time, and shifted instead toward the political-ideological roots of the Revolution (Bailyn, 1967, vi). This led to a radical reassessment of the theoretical sources of the revolutionaries: From then on, the focus was on the tradition of “classical republicanism” especially as represented by the “Commonwealthmen,” the Italian Renaissance theorists (with special consideration of Machiavelli and Guicciardini) and the representatives of ancient political theory (especially Aristotle and Cicero). Above all, Pocock endeavored to locate the pattern of justification of the American Revolution in the Renaissance by examining the semantics of virtue/corruption. The Revolution thus became a “Machiavellian moment” for him, because the Founding Fathers were the heirs of the humanists and classical republicans (Pocock, 1972, 119–134, 120; 1975, 545).

Even if I do not deny in this essay that many revolutionaries were staunch republicans and orientated themselves to ancient and early modern authors, Pocock’s further thesis that republicanism was the midwife of modern democracy is problematic in several ways. On the basis of the history of the United States, especially the period of the Revolution and the early years, it can be shown how democratic thinking developed and how it was increasingly differentiated from republican arguments. One must not forget, of course, that the “democratic moment” was actually only worked out in the nineteenth century, when one looked at the new lifeworld, social and political changes that the constitutional arrangements and egalitarian promises from the revolutionary era had brought about.

The fundamental question is, therefore, whether classic republican categories of virtue, common good, and non-domination, as they are still under discussion today, are actually still suitable for describing the democratic process that has been developing for more than 200 years. A look at the history of ideas certainly may help to work out the main features of republican thought and to make visible the influence of republican authors in the “hours of birth” of the first modern democracy. But this view also shortens the possibilities of recognizing the peculiarities of modern democratic thought.

The finding remains that political theory has been in an ongoing process of coming to terms with republicanism for decades, and that political philosophy has also been shaped by a paradigm of republicanism at least since Pocock. But this has also led to the failure of exploring the history of ideas. To this day, contributions to republican assessments have generally dealt much more intensively with the interpretation of classics in order to strive for a reconstruction of the pure doctrine than with the political disputes and ideas that were initiated as a result of the establishment of modern constitutions and rule of law. But the fixation on the classics has reached its limits. It was not the works of individuals, but everyday political practice, commitment, and the struggle for equal access conditions that drove the understanding, design, and further development of modern democracy. For this reason alone, it is important to distinguish republican from democratic traditions and to underline the consistently egalitarian and participatory perspective of modern democratic thought, which clearly distinguishes it from republican discourse.