Commentary Magazine


The Study of Man:
Reading the Constitution Anew

Every major turn in events seems to bring with it a turn in historical consciousness. The same mood which has recently brought upon us what we so loosely call the “New” Conservatism has also brought a new note into historical writing. Such recent assessments of the American past as those made by Daniel Boorstin and Louis Hartz rest upon conceptions very different from those inherited by this generation from such of their forebears as Charles A. Beard or Frederick Jackson Turner. The older tradition, shaped in good part by Populism and Progressivism and reinforced by the temper of the New Deal era, put political and social conflict in the foreground of history—conflict between radical democrats and property-minded conservatives, farmers and capitalists, debtors and creditors, West and East, small business and big business, workers and employers. The school of interpretation now emerging, which tends to forgo the dramatic possibilities that come from emphasis on conflict, derives its dialectical interest from the tension between its own views and the older ones, or sometimes from the historic contrast between American and European experience. American politics—so the argument runs—has been built socially upon a middle-class basis and ideologically upon a liberal consensus. With few notable exceptions, the extremes of left and right have been unable to make themselves felt; feudal arrogance and proletarian radicalism have been absent or remarkably feeble; antagonistic social groups have not veered far from a common center; political differences have been particular and pragmatic rather than general and fundamental; they have been formulated not in profoundly differing or violently clashing ideologies, but in moderate variations from certain generally accepted premises.

If there is a single theme that unites Professor Brown’s critique of Charles A. Beard’s famous book of 1913 on the Constitution with Robert A. Rutland’s study of the origins of the Bill of Rights, it is the explicit avowal or implicit acceptance of the idea that American politics during the days of the Founding Fathers was muted and of limited importance.

Beard had emphasized the social conflicts that gave rise to the Constitution and the political controversy that it caused. As he saw it, the Constitution was desired and created by a relatively small group of men who had a special interest in “personalty”—that is, not in land, but in property invested in commerce, shipping, manufacturing, and, above all, public securities. The framers of the Constitution, alarmed at the democratic tendencies of the state legislatures and at the feebleness of the Articles of Confederation, drafted a stronger instrument of central government capable at once of meeting its own fiscal obligations with greater reliability and of checking the lax practices of the state governments, particularly in the issuance of currency and in safeguarding the sanctity of contracts. The new government, far from being an extension of democracy, was an effort to check the power of majorities by men whose political theory, as expressed in their deliberations, was anti-democratic. The presentation of the Constitution to the several states for ratification aroused a bitter conflict, which Beard traced to distinct social groupings. Although the document seemed to challenge the interests of agrarians generally, who constituted a majority of the population, and of debtors in particular, the proponents of the Constitution were able to win its acceptance because they were an aggressive elite, educated, concentrated in strategic places, keenly aware of their own interests; and because their agrarian opponents were scattered through the countryside, slow to move, ignorant of political affairs, or disfranchised by their inability to satisfy the property qualifications for voting.

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In his Charles Beard and the Constitution, Professor Brown, a student of Colonial history who has written an important book on Middle Class Democracy and the Revolution in Massachusetts, 1691-1780, dogs Beard chapter by chapter, page by page, and paragraph by paragraph through his classic work, challenging practically every significant assessment of the evidence. No review can do justice to the bulk of even the important criticisms Brown makes. I hope it is not unjust to select two differences that he seems to consider of particular importance. The first of these is over the relative role of real and personal property among the interests that made the Constitution. Brown has little trouble in showing that the preponderance of real property among the propertied interests of America in 1787-88 was so heavy (even among the very men designated by Beard as the important “personalty holders”) as to give us grave cause indeed to doubt the validity of Beard’s strong emphasis on personalty—even when we are prepared to concede that in any economy personalty is likely to be more dynamic than realty. In any case, I doubt that this problem will loom as large for subsequent historians as it did for Beard, and as it necessarily does for Brown, who is locked in such intimate embrace with his adversary that his categories are entirely dictated by Beard’s assertions.

Brown’s second major criticism, however, raises fundamental questions about the interpretation of American political experience. He asks once again how democratic, or undemocratic, the society was which adopted the new Constitution in 1788. Where Beard emphasized the disfranchisement of adult males through the suffrage qualifications, Brown’s own study of Massachusetts has done much to prove the wide availability of the right to vote in that province in Colonial times; and other recent studies dealing with other states tend to bear out his thesis. Brown properly points out that some of the efforts to minimize the breadth of the suffrage have rested upon the elementary fallacy of comparing the number of eligible voters, or even the number of actual voters in a given election, with the total population instead of with the whole number of adult males. Using the suffrage as his primary test of democracy, he argues that the Constitution must be understood not as the product of a class society with acute internal conflicts between the elite and the mass, but rather of a “democratic middle-class society.”

Details aside—though it is hard to convey the quality of Professor Brown’s work without illustrating his extraordinary patience with detail—he has important structural questions to raise about Beard’s argument. Beard never dealt with the troublesome fact that the framers of the Constitution, who he asserted were determined to check the excesses of the state legislatures, were themselves appointed by those legislatures. What Beard describes as a head-on conflict must somehow be reconciled with the continuity between the state legislatures and the Philadelphia Convention of 1787. Secondly, Beard’s treatment of the controversies over ratification in the several states was deceptive. As Professor Brown shows in one of the most original sequences of his analysis, Beard did not discuss these controversies in the order in which they took place, which for the historian is the most natural and faithful procedure, but in an order (itself not consistently followed) roughly geographical, reading from North to South. This has the effect of throwing into the foreground states in which ratification was most strongly and effectively opposed; it gives the impression that from the very outset the controversy was hard-fought and the decision extremely close. In fact, among the first five states to ratify the Constitution, three did so unanimously, a fourth did so overwhelmingly, and in Pennsylvania, where there was a controversy of some importance, the Constitution was ratified by a two-to-one vote. Among the eleven states that held ratifying conventions and adhered to the Union when it went into effect, only four had close contests as measured by the votes, and Beard chose to discuss three of these near the beginning of his account. In mitigation of this criticism, it must be observed that ratification by three of those states with close votes, Massachusetts, New York, and Virginia, was considered essential to the success of the Union.

Professor Brown also points to other curious aspects of Beard’s approach to the process of ratification. In Pennsylvania, where one of the earlier conventions for ratification was called, Beard felt that the action was “precipitous” and that haste was unduly favorable to the cause of the Federalists. (Benjamin Franklin, however, thought that the Constitution was adopted only “after the fullest discussion in convention, and in all the public papers, till everybody was tired of the argument.”) On the other hand, Beard believed that in Maryland and South Carolina “deliberation and delays in the election and the assembling of the conventions resulted in an undoubted majority in favor of the new instrument.” While it is at least conceivable that haste might have favored the Federalists in Pennsylvania while delay helped them in Maryland and South Carolina, there is here a suggestion of special pleading that needs a great deal more explanation than Beard ever gave.

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To me one of the most significant of the moot points is the delicate one as to how bitter the conflict over ratification was. That there was a close vote in the ratifying conventions of a few states, and that some strong language was used in the debates and public discussions almost everywhere, is beyond doubt. It is still arguable how deeply ordinary citizens felt the issues. The whole effect of Beard’s book is to suggest that a great many of them opposed it bitterly, but that “the people,” being disfranchised and outmaneuvered by “the interests,” went down to defeat. It was easy to show that in the popular vote for members of the state ratifying conventions only a small portion of the adult male population actually voted. Although Beard believed that this was in large part because they were disfranchised by property qualifications, he conceded in one very revealing passage that “far more were disfranchised through apathy and lack of understanding of the significance of politics,” and in another, gave away a great part of his case with the sweeping admission that “the wide distribution of property created an extensive electorate.” The difference for our view of the period between disfranchisement by property qualifications and “disfranchisement” through apathy or ignorance is an enormous one.

An excellent illustration of the vulnerability of Beard’s conviction of the sharpness of the conflict is his treatment of Philadelphia, where he found that the election of delegates to the ratifying convention was “perhaps the hottest contest that occurred anywhere.” In this hot contest only 1,450 voters out of about five thousand or six thousand eligibles took the trouble to vote—though, as Brown points out, a genuinely hot contest over twenty-two years earlier, at a time when the population was much smaller, had brought out four thousand votes. Brown puts it well when he says: “One of the master keys to an understanding of the Constitution is not how many men could not vote, but why so many having the vote did not use it. . . . When we stop talking about the ‘mass of men’ who could not vote on the Constitution and start talking about the ‘mass of men’ who could vote but did not bother to do so, then, and only then, will we understand the Constitution and its adoption. . . . The Constitution was adopted with a great show of indifference. . . .”

I am not sure that the conclusions Professor Brown has drawn from his researches into suffrage qualifications and his critique of Beard are the only possible conclusions. He looks upon the society which adopted the Constitution as a “democratic middle-class society.” But in his eyes the democratic character of this indisputably middle-class society rests almost completely upon the right to vote. I do not believe that political democracy is as much a matter of the electoral franchise as Professor Brown seems to assume. There are intangibles of public leadership, social control, and political awareness to be taken into account, and when these are considered they suggest a conjectural third view of 18th-century American society which is somewhat different from Beard’s or Brown’s. Briefly, that alternative is that “the people” in 18th-century America were not vitally interested in politics, especially in inter-colonial politics; that their characteristic (though not invariable) political attitude was one of indifference, and that this indifference often extended to issues which the historian now considers profoundly important; that in the absence of an alert and militantly self-interested political public, the functions of government and decision commonly went, very largely by default, to the gentry; that the gentry, far from presenting a united front to the people, were on occasion sharply divided among themselves on political matters, and that at times some of them chose to employ a rhetoric rather more democratic than were their actual convictions in order to win public support; that this was frequently the case in the struggle over the Constitution (though the representative political opinions of anti-Federalists were hardly more democratic than those of Federalists); that the Constitution was adopted amid wide public indifference, as Brown asserts; and finally that the most decisive popular challenges to government by the gentry were not delivered until the second and third decades of the 19th century, when “the people” began to make far more use of the franchise which had long been available to them, and when the demand that politics as a career be made open to talents became widespread. This view is consistent with the broad franchise and the political apathy which Professor Brown points to, but pays due regard to sociological factors in the assessment of democracy.

While I believe that the historiography of the future will be much closer to the argument of Brown’s book than to Beard’s, I find it hard to pass over Brown’s critique without comment on its tone, which is often unnecessarily polemical and censorious. Although Professor Brown does give credit to Beard for having directed attention to neglected areas of history, he scolds him rather humorlessly for having written several other books during the period when he was writing his study of the Constitution, instead of digging deeper into the proper sources. Professor Brown would have budgeted Beard’s time quite differently. As one of the generation that began to read American history during the 1930’s and who has since had to unlearn a good deal of what he learned from Beard, I still feel that tribute is due him for the sense of passion and urgency with which he pursued his craft. All historians who try to go beyond narrowly focused monographs to write intellectually relevant histories run the risk of being trapped now and then by their ideological and political commitments. At the cost of sometimes misleading us, they often suggest important areas of inquiry. Many of the mistakes Beard made are of the sort that are likely to be made in the course of any ground-breaking inquiry into a complex subject. Minds like Beard—and Turner, who also misled us at critical points—perform services even when they are wrong.

Professor Brown is as ungenerous to his own predecessors in the criticism of An Economic Interpretation of the Constitution of the United States as he is to Beard. Some of his arguments are highly original or are followed through the evidence more closely than they have ever been before. But the substantial literature of criticism and analysis on the subject that has accumulated over the past fifteen or twenty years belies the impression Brown gives that he is alone in the universe with Beard and the sources. By avoiding all reference to other critics of Beard (except those who have indirectly dealt with the subject in writing about the suffrage problem) he suggests far wider acceptance of the Beard thesis among the competent professionals than has been the fact in recent years. If he had done what Beard did in his work—that is, given a brief account of the leading writers who had in some part anticipated his own argument—he would have been fairer, and he might have given us a valuable essay on changing historical fashions, which would have put his book in its full context. And had he chosen to enumerate others who have significantly differed with Beard’s book, one of the historians who would have demanded prominent mention would have been Beard himself. Brown mentions, but passes over all too casually, the fact that Beard a dozen years ago in The Republic (1943) and in The Basic History of the United States (1944) adopted a new view of the Constitutional period much closer to Brown’s present study than to his own earlier work. This change of views on Beard’s part does not deprive Brown’s critique of the older book of any of its importance or value, but renders even more gratuitous than it might otherwise be the book’s extraordinarily edgy tone.

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The chief ground on which the more responsible anti-Federalists criticized the proposed Constitution was its lack of a Bill of Rights. Oddly enough, considering the importance in our legal tradition of the Bill of Rights, there has never been an adequate history of the process by which it was incorporated in the Constitution. Mr. Rutland’s study goes only part of the way to fill the gap. His book treats adequately, as its title promises, of the birth of the Bill of Rights during the years 1787-88, but is rather perfunctory in accounting for the marriage of British law and American experience that preceded the birth, and for the Colonial period of gestation. That phase of the story that most concerns us here, however, is his illuminating discussion of a possible bill of rights in the Federal Convention and the role of the bill of rights issue in the ratifying conventions. What he finds is quite consistent with Professor Brown’s suggestion that the conflict was not over-acute. Although the Federalists were on occasion accused of the sinister design of depriving the people of their traditional guarantees of rights, no evidence for this accusation turns up; what we see instead is their readiness to yield the point when they discovered how important it was.

When the American states broke away from British rule, seven of the original ones, in addition to newly formed Vermont, adopted distinct bills of rights, while four others incorporated similar guarantees in other ways. The Articles of Confederation, which loosely held the states together, did not add any further guarantees of its own, presumably because each state retained its own sovereignty, and separately offered considerable protection to freedom of conscience, freedom of the press, and other basic rights. The members of the Federal Convention, during the greater part of their proceedings, seem to have assumed that their new Constitution would stand in the same position as the Articles of Confederation. During the closing days, when George Mason of Virginia began to press for a Bill of Rights, most of the delegates seem still to have agreed with Roger Sherman: “The State Declarations of Rights are not repealed by this Constitution; and being in force are sufficient.”

When the Constitution was presented to the states for ratification, the intense suspicion aroused among its opponents by the absence of such guarantees made it clear that the oversight had been important. The more astute Federalists found it strategic to say in the ratifying conventions that they would support the inclusion of a Bill of Rights, however unnecessary, if that would satisfy the opposition; and what emerged from the controversy was a sort of implicit promise to enact one. But the common premise shared by both sides in the debate—that bills of rights are valuable and important guarantees—looms larger than any difference of opinion over whether the new Constitution needed one. No doubt the most useful thing the opposition did was to assure that such guarantees would be added to the Constitution soon after it went into effect. As Jefferson expressed it, “There has been just opposition enough to produce probably further guarantees to liberty without touching the energy of the government, and this will bring over the bulk of the opposition to the side of the new government.”

“Just opposition enough” seems to catch the tenor of the proceedings. One of the earliest important events of the first Congress under the Constitution was the introduction by James Madison of the Bill of Rights. While there was much further discussion of details, the passage of the first ten amendments and their referral to the states for ratification was completed in the fall of 1789. With this step the conflict over the Constitution (mild, as we may well believe, from the beginning) evaporated. A year after Washington’s inauguration Jefferson could write to Lafayette: “The opposition to our new constitution has almost totally disappeared.” Disputes over the meaning of the Constitution, which began almost immediately, may indeed have been more severe than the original conflict over its adoption.

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