Forrest A. Nabors: From Oligarchy to Republicanism: The Great Task of Reconstruction. Columbia: University of Missouri Press, 2017.

 

Aristotle defines ‘revolution’ as regime change. ‘Regimes’ consisting of the persons who rule; the institutional structures (formal and informal) by which they rule; the way of life the rulers and structures foster; and the end(s) or purpose(s) at which those rulers, structures, and ways aim. Americans revolutionized or changed their regime in declaring their independence from the British Empire, putatively a mixed regime—with monarch and legislatures sharing authority— whose monarch had tyrannized over them, putting them in a ‘state of nature’ and indeed a state of war with him and the Parliament, which backed him. Americans established self-government under a new, republican regime of their own design.

Beginning with the generation of Americans succeeding the Founders, this regime came under assault from within. The Southern states proved not so much democratic republics but what Montesquieu called “aristocratic republics”—really oligarchies of wealthy, slaveholding planters. The Civil War, then, amounted to a new Revolutionary War, with Reconstruction intended as a re-establishment (or more strictly speaking, establishment) of democratic republican regimes in the Southern states. Founded in 1854 in response to the crisis ignited by the Kansas-Nebraska Act, which threatened to establish slavery in the heart of the American Midwest, the Republican Party really was the republican party, the Democratic Party having been hijacked by Southern oligarchs and their Northern collaborators.

Forrest A. Nabors applies Aristotelian regime theory in what should be recognized as the first genuinely political, regime-centered, interpretation of the Civil War and Reconstruction since the generation which fought that war and attempted that regime change. In saying “We ought to see the Civil War in light of Reconstruction and not the other way around,” he looks (as Aristotle would) to the end or purpose of the action, not merely at the efficient, material, and formal causes—although, Aristotle-like, he does not neglect these. He thereby intends “to recover how the Republicans in the Reconstruction Congress understood the prior national struggle that decisively shaped their understanding of their task” (4).

Drawing upon the scholarship of his teacher, the late Harry V. Jaffa, Nabors understands American republicanism as founded on the principle of equal natural rights secured by civic equality—as seen not only in the Bill of Rights but in the broadly representative governmental structures established by the Constitution itself. Oligarchy or ‘aristocratic republicanism’ in the Southern states rested on the principle of natural inequality and corresponding civic inequalities, beginning with slavery but including firm controls wielded by white oligarchs over poor and middle-class whites. “Oligarchy is a political regime that by definition tramples upon natural right, because the sovereign ruler is a minority that steals republican self-government from the popular majority which becomes a ruled class” (13). This was clearly understood not only by the Republicans in the 1850s but by President Andrew Jackson and his opponent, South Carolina Senator John C. Calhoun, during the Nullification Crisis of the 1830s. It was understood by ‘the Great Chief Justice’ John Marshall at that time, as well. And it was understood by the Framers of the Constitution during the debates in Philadelphia, as Senator Charles Sumner of Massachusetts demonstrated in a speech before the Senate on February fifth and sixth, 1866.

In Philadelphia, the Framers inserted what we now call the Republican Guarantee Clause—Article IV, Section IV—providing that “The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.” (For a short discussion of the clause, and James Madison’s understanding of it, see “United States Constitution: The Republican Guarantee Clause,” on this website.) Simply put, the clause makes slaveholding not only a moral issue, and not only a social issue, but a political issue of the gravest kind: a regime issue. The American Revolution or regime change remained incomplete and at risk so long as slaveholders controlled American states. Most subsequent historiography and political thought generally has focused on slavery instead of slaveholding, slaves instead of slaveholders. This speaks well for our compassion, but less well for our ability to think clearly about politics. By getting back to the American regime itself with clear, ‘Aristotelian’ eyes, Nabors recovers the real causes of the central struggles over the American regime between the founding and Reconstruction. We know that ‘race relations’ remain with us today, but we don’t really know why they are. Nabors shows us why, in a thoroughgoing way that provides the political dimension to the moral, natural-rights dimension Jaffa understood and emphasized.

He divides the book into two sections of five and two chapters, respectively. In the first section he lays out the Republicans’ argument; in the second section he tests that argument empirically, showing how oligarchy played out in the education, property law, and governing structures of the Southern states.

At the outset of Reconstruction, House Speaker Schuyler Colfax of Indiana cited the Republican Guarantee Clause as the guiding legal principle of the Thirty-Ninth Congress, describing “the chief object” of that clause as the “protection of all men in their inalienable rights” (33). In the Senate, Charles Sumner of Massachusetts concurred. As the Joint Committee on Reconstruction put it, “Slavery, by building up a ruling and dominant class, had produced a spirit of oligarchy adverse to republican institutions, which finally inaugurated civil war” (36). It followed that Reconstruction aimed at destroying the oligarchic regimes in the South; in “replant[ing] true republicanism in the insurrectionary states” (37); in strengthening the system of common schools there; in defending freedom of speech; in preventing manipulation of representation within those states, which oligarchs had done to reduce the political power of poor whites, whom they styled the “mudsill class”; and to break the oligarchs’ land monopoly, which had reduced the number of independent small farmers. On the latter point, Congress intended to confiscate the oligarchs’ land and ‘homestead’ it, just as had been done with the territories since the founding of the country. In effect, Republicans argued, the oligarchs had done to poor whites and blacks what George III had done to Americans: They had put themselves in a state of war with them by systematically depriving them of their unalienable natural rights, reducing the South to a state of nature with a civilized veneer.

Nabors emphasizes that slavery had been “a political evil in addition to a moral evil,” “the substratum of the oligarchic system” in the words of Rep. Delos Ashley of Nevada. The oligarchs’ moral argument was that slavery was good because human beings are unequal by nature the superior humans deserve to rule their inferiors, black or white. On the grounds of ‘race theory’—cutting-edge science in many European circles at the time—blacks were unqualifiedly inferior even to the lowest whites and therefore needed to be enslaved, whereas inferior whites need merely to be subordinated as tenants with diluted voting rights. To accept the oligarchs’ moral argument obviously requires one to accept their regime argument.

Economically, slavery reinforces oligarchy by yielding inequality of wealth, providing low-cost labor because the fruits of the slaves’ labor goes not to themselves but to the masters. What is more, “enforced labor degrades labor” generally (80) and elevates the social status of those who need not work. Although the aristocratic legal provision for primogeniture had been outlawed by the Constitution, land monopoly replaced it, squeezing the independent farmers. This economic system has two moral effects: it degrades the character of poor whites, who see no reason to work and thus develop no ‘work ethic’; it inflates the conceit of oligarchs, inclining them toward pride, despotism, violence, and lust. “When the Republicans indicted slavery they were waging a struggle over the ultimate political question: the character and type of the American regime” (104). As Aristotle puts it, all elements of the regime of the polis effect its ethos—its ‘national character,’ as we say now.

How did this oligarchy arise? When the British king vetoed a Virginia legislative resolution aimed at taxing slave importation and ultimately abolishing slavery altogether—the British government had established slavery in Virginia in the seventeenth century—the founding generation objected, citing his action in their Declaration of Independence. After independence, Virginia, the largest of the slave states, with half of the nation’s 500,000 slaves, abolished the slave trade. In the mid-1770s, North Carolina and Georgia passed acts banning slave importation. In the mid-1780s, the majority of states voted to ban slavery in the territories. Between 1798 and 1804, Congress banned foreign importation of slaves to the Mississippi Territory and the Orleans Territory, and banned slavery altogether in the Indiana Territory, acts aimed at what today’s Americans will see as an anticipation of the ‘containment’ strategy the United States undertook at the beginning of the Cold War with the Soviet Union. The exception to this general rule was South Carolina, many of whose oligarchs had been Tories during the Revolutionary War. One might even suggest that those oligarchs who did oppose the British monarchy followed the most consistent ‘aristocratic’ plan of all: removing monarchy during the Founding period, then undermining republicanism in the decades that followed. Monarchists and democrats are the (as it were) natural political enemies of aristocrats and oligarchs.

As is well known, at the Constitutional Convention in 1789 South Carolina and Georgia forced the compromise on slavery seen in the ‘Three-Fifths’ clause. As is also well known, the generation subsequent to the Founders saw the invention of the cotton gin, which made slavery much more profitable. Also, initial moves to increase the number of slave states were sometimes supported by anti-slavery politicians like Thomas Jefferson, who believed that the spread of slavery would dilute its influence by reducing the percentage of slaves in the original Southern states. They failed to calculate the economic motive for increasing the slave population not by illegal importation but by breeding.

It was Jefferson who called the Missouri controversy of 1820 a “fire bell in the night,” an alarm to anyone who wanted to preserve the Union. The bitter Congressional debate saw his dominant Democratic Party split along sectional lines, with Northern Democrats appealing to Jefferson’s doctrine of equal natural rights and Southern Democrats appealing to Jefferson’s doctrine of states’ rights while implausibly extending it to territories not yet admitted to the Union as states. The admission of Missouri to the Union as a state in which slavery was legal, in exchange for the admission of Maine, where it was not, settled the matter for a generation, but not before the regime issue as it pertained to slavery was explicitly raised by opponents of Missouri’s admission. And even with the settlement, the split remained, just under the surface. From then on Southerners needed control of the Senate if they were to defend their regimes, since the population of the republican Northern states was growing faster, giving Northerners more weight in the House of Representatives. As the states controlled membership in the Senate, this centered the defense of oligarchy squarely on ‘states’-rights’ claims, thereby destabilizing the Union. Being by definition ‘the few,’ Southern oligarchs also needed to avoid riling Northerners, and so chose to maneuver for power within the national government with great care. As Tennessee Congressman Horace Maynard noted, the oligarchs, “like a certain school of ancient philosophers, had two sets of principles or doctrines, an exoteric and an esoteric—one for outsiders, the other for themselves” (213). Making ‘republican’-sounding arguments to outsiders, they confided their real, oligarchic intentions only to carefully-vetted fellow oligarchs. Years later, Republican Party members looked back on the Compromise as “a prominent event in the ongoing and general transformation of Southern statesmen from ambitiously republican to ambitiously oligarchic” (152); given the character of some slaveholders even in the founding generation, one might go so far as to say “from ambiguously republican to ambitiously oligarchic.” Meanwhile, Northern politicians split between abolitionists and Unionists, the latter willing to ‘save the Union’ at the cost of allowing the continued spread of slavery and therefore of oligarchy. This provided an opportunity for a sinuous oligarch to play ‘divide and rule.’

That oligarch was South Carolina Senator John C. Calhoun, the ablest statesman of independent America’s second generation, who mixed daring and caution in a brilliant attempt to bring oligarchs into control of the national government or, failing that, to secede from the Union. Calhoun dared to deny the that the truths Jefferson and the other Founders had held to be self-evident were truths at all. All men are not “created equal”; they are born unequal. Slavery is a “positive good.” While daring in terms of theory, however, Calhoun proceeded cautiously in his political doctrine, that states had the constitutional right to nullify federal legislation because the states were sovereign. By “states” Calhoun didn’t mean the people of the states but the governments of the states. This of course made the Senate, the national body in which the states were represented, into the center of American national politics; given the Southern states’ dominance in the Senate, and Calhoun’s unchallenged prestige among Southern politicians, this also made Senator Calhoun the single most important political man in America in his generation. In that role, he presented a syllogism in defense of slavery extension: the states are sovereign; territories are the common property of the states; ergo, to ban slavery in the territories is an unconstitutional denial of equal rights to the slaveholding states. As Nabors remarks, over time this effectually would tend to make slavery national, freedom (and thus genuine republicanism) regional.

The elderly James Madison, who along with Jefferson had defended states’ rights against perceived Federalist Party encroachments at the beginning of the century, “strenuously dissociated his ideas from Calhoun’s,” correctly maintaining that the national government as constituted in the 1780s was not “a mere league” of sovereign states but a real government with legal authority to govern Americans within their states in certain specified ways, such as tariffs (158). Older Jeffersonian statesmen also understood that under the American doctrine of equal natural rights, only the people of the country and of a given state can be sovereign, never the government. But oligarchs don’t see things that way. Indeed, Senator Robert Rhett of South Carolina came to define treason as a violation of allegiance to the sovereign states which (he alleged) established the federal system, a system to be defined by those states’ constitutions. Under this principle, the Republican Guarantee Clause could be invoked to protect the regimes of the oligarchs—a specimen of ‘aristocratic republicanism’ with a vengeance.

One might wonder how Southern oligarchs expected a confederation of entirely sovereign states to hold together, once the oligarchs felt secure in their control of national institutions, that is, once the unifying threat of abolitionism had been safely neutralized. The answer might well be that they counted on the interstate social and political ties among oligarchic families, whose authority would always be at risk from uprisings ‘from below,’ to provide reliable bonds among the sovereign states’ governments controlled by slaveholders.

Calhoun worked systematically to make both the Democratic Party, American foreign policy, and eventually the Supreme Court serve the interests of his preferred regime. The organizer of the second-generation Democratic Party, Martin Van Buren of New York, opposed slavery, but Calhoun and his allies outmaneuvered him and took control of the party. Because the Democrats were more numerous than Whigs nationally, this meant that few presidents from 1840 to 1860 were not subservient to oligarchic interests; the last Democratic president before the Civil War, James Buchanan of Pennsylvania, had been a loyal water-carrier for the oligarchs for years. It also meant that Supreme Court justices, nominated by presidents and confirmed by senators, would increasingly support those interests, culminating in the infamous Dred Scott case of 1857, written by oligarchic ally Roger Taney of Maryland. In foreign policy, Calhoun used his tenure as Secretary of State to advance the policy of annexing Texas, arguing that Texas had always been sovereign, even when part of Mexico, because states are as sovereign in Mexico as the are in the United States.

Using similar tactics, Southern Whigs took over their national party after 1848. When the two most prominent Whigs, Senator Daniel Webster of Massachusetts and Senator Henry Clay of Kentucky, engineered the Compromise of 1850, preventing the outlawry of slavery in the new territories of Utah and New Mexico and tightening the Fugitive Slave Law, their party was on the road to extinction.

Northern Democrats displeased with the Southerners’ takeover of the party propounded not the Jeffersonian doctrine of natural rights but that of unlimited popular sovereignty, first publicized by Senator Lewis Cass of Michigan, then championed by Senator Stephen Douglas of Illinois. Popular sovereignty, if implemented in the territories, would have slowed the spread of slavery but surely would not have stopped it. As Abraham Lincoln argued against Douglas in their Senate race in 1858, to laud popular sovereignty without the moral constraints of natural right amounted to “blowing out the moral lights among us.” Lincoln’s Republican Party had arisen in 1854 in reaction to the Kansas-Nebraska Act, which repealed the Missouri Compromise and forced American republicans to unite and regroup in opposition to the now manifest strategy of the oligarchs. The newfound unity of republicans under the Republican Party, coupled with the split between Southern Democrats and many of their Northern colleagues, would turn out to be sufficient to persuade the oligarchs that  secession was their only course. This proved a calamitous choice, although not obviously so at the time. After the war, Confederate States of American President Jefferson Davis would condemn the Northern Democrats’ doctrine of popular sovereignty as the beginning of “all our woes.” But it was also a symptom of the decline of natural-rights morality throughout the country.

Despite their brilliant political successes, the oligarchs saw economic and social forces trending against them. They had needed more territory controlled by slaveholders in order to catch up with Northern prosperity, enhanced by population growth which included Irish and other European immigrants who much quite sensibly preferred labor conditions in the North to those of the Southern slave economy. The alarm caused by passage of the Kansas-Nebraska Act “united Northern self-interest in their own rights with their interest in the rights of others who were crushed by the oppression of Southern oligarchy” (193). The Abolitionists’ moralism, worrisome and irritating to many Northerners, became more respectable when the connection of slaveholding to anti-republicanism finally stood exposed, despite the assiduous obfuscations of the oligarchs. This is why Republicans carefully highlighted the themes of republicanism and Union instead of the horrors of slavery. As seen in the several Republican platforms passed by state-based organizations, the party’s “sole purpose was to contend for the political regime model established by the American founding, and that regime model entailed the ultimate extirpation of slavery” (200); abolitionism could now be presented as a means to an end many Northerners accepted, instead of a largely selfless moral crusade for social justice. As a result, the party attracted not only Whigs but some Northern Democrats. Even Stephen Douglas, who never renounced his party, assured President Lincoln of his support when the war finally came.

Nabors devotes the second, shorter part of his book to providing empirical evidence of the oligarchic character of the Southern regimes and to explaining why Reconstruction or regime change failed. The Southern states’ education systems showed a clear bias against universal public education. Illiteracy rates were much higher than in the North. Efforts to establish public schools in Southern states failed; even Thomas Jefferson, who worked for a comprehensive public education system in Virginia, succeeded only in founding the University of Virginia because a university was the only piece of his proposed system that served the interests of oligarchs who wanted their sons well-trained for government. Understood both in the North and the South as a republican institution which enabled persons of all ages to read their Constitution and engage in political debates, public education was anathema in the South for exactly that reason. As one college professor averred, following Calhoun, “We deny that all men are created equal,” that rights are natural; rights as he conceived them were purely a matter of social custom, and Southern social custom entailed strictly-enforced social hierarchy. Public schools also would have meant more local self-government, risking loss of control of some districts to republican elements. For this reason, Southern state legislatures assiduously blocked effort to found local schools, despite rhetoric endorsing local self-government in the form of ‘states’ rights.’ When the famous public-school organizer Horace Mann and other Northerners attempted to counsel Southern municipalities, state authorities made it clear that proverbial Southern hospitality did not extend to them.

Similarly, property rights in the South were defined to strengthen oligarchs at the expense of ‘common’ whites, let alone African slaves. Indeed, these two elements correlated: “Where slavery was most dense, property inequality widened” (247). Although in the North the rising industrialist class amassed great wealth, too, industrialists did not also populate the state legislatures and the halls of Congress; industrialists were not a true ruling class. In the South, oligarchs enjoyed better “political standing in law” (256) for the simple reason that they wrote the laws. With their rule assured, oligarchs could actually afford to bring well-measured numbers of ‘common’ whites into slaveholding by importing more slaves and thereby reducing the price; this amounted to a calibrated way of widening the oligarchs’ political base.

For, without a doubt, “the slaveholders controlled government in the antebellum South” (265). The big planters served in the state legislatures, exercising economic, social, and political control with their superior wealth, education, and patronage networks. They assured themselves of continued control by setting high property requirements for officeholders, by counting their slaves in apportionment ratios, and by prohibiting the use of private ballots, which enabled them to know how their tenants voted. They carried Senator Calhoun’s principles into the government of the Confederate States of America, making slavery the “cornerstone” of the regime (as Vice President Alexander Stephens put it), by giving the new government greater powers over the constituent states than the U. S. national government wielded, and by keeping their legislative deliberations secret. After all, in an oligarchy ‘consent’ means agreement among the few, and what the many don’t know won’t hurt—the oligarchs.

Having clearly and meticulously demonstrating the regime struggle at the core of antebellum American politics, Nabors turns to Reconstruction itself in his final chapter. It failed both in practice and before the bar of ‘history’—i.e., the historians. Initially, historians accurately portrayed Reconstruction as an attempt to change the oligarchic regimes of the Southern states into republics. Historians of the Republican School included Northerners, the most famous of whom was the prominent literary figure William Cullen Bryant.  Green Berry Raum’s 1884 title, The Existing Conflict between Republican Government and Southern Oligarchy laid the matter on the line in plain terms. There were, a few Southerners among this cohort, including William Skaggs and George Washington Cable, and also such prominent Europeans as J. Arthur Partridge, John Elliot Cairnes, and Hermann von Holst. But as Reconstruction receded, historians of the Dunning School, named after William Archibald Dunning of Columbia College, took their cue from Jefferson Davis’s two-volume apologia, The Rise and Fall of the Confederate Government, in which the former CSA president shifted the focus of the Civil War away from regimes and slavery towards states’ rights and ‘self-government.’ This rhetorical shift made Reconstruction seem utterly pointless and valorized the ‘Lost Cause’ as a noble struggle against heavy odds. Finally, the Revisionist School, led by W. E. B. DuBois, equally elided the regime issue while bringing slavery to the center of consideration, where it has remained ever since. DuBois made moral, economic, and civil-social issues seem crucial, not politics. DuBois’s eventual turn toward Marxism only exaggerated this non-political analysis, and variations of DuBois’s analyses have dominated the debate for more than a century. Today’s Democratic Party members and indeed most Americans “accept racism as an uncaused primary cause” of the war and indeed “as a universally acceptable explanation for many phenomena” besides (299). And there isn’t one Republican Party member in a thousand who knows why the party calls itself that.

Nabors moves to recover the political dimension of Reconstruction, which ought to provide us with an appreciation of both the importance and the difficulty of regime change, which “can release unanticipated new evils into society that had been held in abeyance by the old regime” (299). In the South, the overthrow of the oligarchs touched off mass violence against freed slaves, as poor whites turned on them, initially organized by elements of the old regimes but quickly escaping their control, producing “a dark Hobbesian world” or post-Civil War civil war (300). As he had before and during the war, Alexander Stephens was on hand to foment the thing, “telling them that their war…was not over and could still be won” (301). As the violence bled out and Northerners wearied of their “fool’s errand” (as one writer put it), oligarchs reestablished themselves by making populist appeals to the whites they had held down so long, in common cause against ‘dangerous’ blacks—a rhetorical line given unforgettable visual expression in D. W. Griffiths’ movie epic, Birth of a Nation. 

This was indeed ‘racism,’ but Nabors reminds his readers of racism’s political utility. “The prior oligarchy is the factor that explains why the white majority in the South violently turned against the freedmen, rather than unite with them and quickly establish republicanism during Reconstruction” (311). From the 1830s on, poor whites saw “black slavery” as “the cause of the oligarchy that ruined them”(319), but in a way that made them turn against blacks more viciously than against the oligarchs. As far as poor whites were concerned, the slaves’ sycophancy toward their masters, and the masters’ appreciation of the monetary value of their slaves, had formed a sort of ruling coalition against the mass of Southern whites. The black civil equality imposed by Reconstruction thus came as the profoundest insult to white ‘commoners,’ whose “desperate violence aimed at sustaining their claim to sovereignty,” a ferocity “seen in many political regimes shaped by inequality, when sovereignty is in question” (323). Unified white solidarity against blacks enabled “oligarchic supremacy” to endure “in reconstituted form,” with whiteness itself now becoming the token of civic pride and authority (323).

Nabors concludes by acknowledging the strength of America’s republican regime while pointing to its difficulties in maintaining respect for republican principles from one generation to the next—the theme of Abraham Lincoln’s Lyceum Address. In answer to the oligarchic challenge to American republicanism, republicanism won a limited victory, thanks to the advantages the regime itself bestowed on the Union: “prosperity, patriotism, and population” (325). The persistence and shrewdness of Southern oligarchs kept them in power for several generations after the federal troops left, and they seized control of the historians’ narrative for part of that time. Gradually, however, the strengths of republicanism overbore them. This notwithstanding, the terms in which many Americans understand republicanism continue to emphasize subpolitical matters, including race, often to the exclusion of both the character of republicanism as a regime and its moral foundation in natural right.

In keeping with Professor Nabors’s sensibilities, I hesitate to call his analysis ‘masterly,’ but that’s what it is. He leaves me wanting to read a book centered more exclusively on the great task of Reconstruction itself. What were the details of the republican and oligarchic strategies and tactics during and after the effort? Were alternative, and possibly more effective strategies proposed? Regime change has numbered among Americans’ strategies since the Founding, not only including the Revolutionary War and subsequent constitution-building, but also during the Washington Administration, which undertook regime change with several of the Amerindian nations. Sometimes this has worked (as it did with the Indians, until the Jacksonians drove them away, and in Germany and Japan in the 1940s); sometimes it doesn’t work, at least immediately (Reconstruction, Iraq). The more Americans know about this, the better.

 

Article IV, Section 4: “The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.”

Originally published in the “90-Day Study of the United States Constitution,” Constituting America, May 13, 2011.

 

Here the Framers speak to the heart of their intentions for America.

In the Declaration of Independence, they had objected to George III’s actions because he had violated the laws of nature and of nature’s God. One might suppose that the Americans’ complaints amounted to no more than an accusation that this king had turned tyrant—that some other, more just, monarch (a Henry IV) might have appeased them. Indeed he might have done—for a time.

But a more careful reading of the Declaration shows that not only the king but also Parliament had angered the colonists. Americans judged that the whole British regime, and the structure of the British empire, deserved to be overthrown in America—replaced by a new regime and a new imperial structure. The new regime was republican—republicanism as they, not the Europeans, understood it—and federal—a federalism informed but not simply as defined by the great French political philosopher, Montesquieu.

What danger did this clause address? The highly respected Massachusetts delegate, Nathaniel Gorham, joined John Randolph and George Mason of Virginia and James Wilson of Pennsylvania in issuing the warning: “An enterprising Citizen might erect the standard of Monarchy in a particular State, might gather together partisans from all quarters, might extend his views from State to State, and threaten to establish a tyranny over the whole and the General Government be compelled to remain an inactive witness of its own destruction.” That is, these Framers anticipated the kind of career undertaken by Napoleon in France a decade before the fact, and they moved decisively to prevent it from happening here.

As usual, James Madison (writing in the forty-third Federalist) provides the clearest overview. “In a confederacy founded on republican principles and composed of republican members, the superintending government ought clearly to possess authority to defend the system against aristocratic or monarchical innovations.” Why so? Because the United States is not only a republic but a federal union: “The more intimate the nature of such a Union may be, the greater interest have the members in the political institutions of each other; and the greater right to insist that the forms of government under which the compact was entered into, should be substantially maintained” (emphasis in original). What is more, “Governments of dissimilar principles and forms have been found less adapted to a federal coalition of any sort, than those of a kindred nature,” he writes, citing Montesquieu’s research as proof. Not only the federal government but the constituent states of the federal union must be republican. Only this can stand as what Jefferson called “an empire of liberty.”

“But a right implies a remedy,” Madison continues. What power within the United States can safely prevent an anti-republican faction from seizing control of a state? “What better umpires could be desired by two violent factions, flying to arms and tearing a State into pieces, than the representatives of confederate States not heated by the local flame? To the impartiality of Judges they would unite the affection of friends.” And even more ambitiously: “Happy would it be if such a remedy for its infirmities could be enjoyed by all free governments; if a project equally effectual could be established for the universal peace of all mankind.” This would require that republican regimes achieve a sort of ‘critical mass’ throughout the world; in 1787, they had achieved such a critical mass only in the United States. If republicanism failed here, when and where would it revive? When and where would a general civil peace obtain—the condition for securing unalienable human rights?

Protection against invasion includes not only invasion by foreigners—the United States was bordered by the non-republican empires of Spain and Great Britain, as well as by the non-republican (and still formidable) Amerindian nations in the West—but also by other states of the Union. Although (as Montesquieu had remarked, commercial-republican regimes had not fought one another in the past, the Framers were taking no chances.

The Constitution guarantees federal intervention in times of anti-republican rebellion and of invasion foreign or domestic. Intra-state violence that is not anti-republican raised another problem. Massachusetts had suppressed Shays’ Rebellion only a few months before the Convention convened. Daniel Shays and his men had rebelled out of desperate indebtedness; far from being anti-republican, many had served in the war on the Patriot side. Convention delegates Elbridge Gerry and Luther Martin objected that intervention in such cases could be dangerous and unnecessary unless the afflicted state consented to it. At the same time, whatever Jefferson may have thought about a little rebellion now and then, armed rebellion does tend to throw cold water on the rule of law, and republics normally operate according to the rule of law. The delegates therefore agreed to require the federal government to obtain consent from the state governments before intervening in such disputes. On balance, the local authorities will judge best when a republican rebellion requires the heavy hand of federal intervention.

In his Federalist essay, Madison did not hesitate to notice a force that might intervene in any disorder, whether anti-republican or republican, foreign or interstate or intrastate. An “unhappy species of population abound[s] in some of the States, who during the calm of regular government are sunk below the level of men; but who in the tempestuous scenes of civil violence may emerge into the human character, and give a superiority of strength to any party with which they may associate themselves.” The presence of slave in the United States raised the harshest questions about both the American regime and the American federal union. By nature, the slaves were men; by law, they were a self-contradictory mixture of personhood and property. Civil disorder of any kind might induce them to rise up and claim their natural rights, perhaps at the expense of the natural rights of their masters; slave revolts had occurred in New York during the colonial period, and of course the freeman Toussaint Louverture would lead a (temporarily) successful insurrection in Haiti beginning in 1791. “We have seen the mere distinction of color made in the most enlightened period of time, a ground of the most oppressive dominion ever exercised by man over man,” Madison declared. Would a slave revolt be an attack on republicanism or a vindication of it? Madison and the other Founders sought some way to avoid such a revolt, which might overturn republicanism in the name of republicanism or perhaps install some other regime as a remedy for the evils of slaveholding republicanism—yet another self-contradiction.

Put in a somewhat different way, the dilemma was as simple as it was stark. As Madison wrote in Federalist #43, the republican guarantee clause “supposes a pre-existing government of the form which is to be guaranteed.” That is, the basis of the federal Union—the new empire of liberty replacing the old empire of tyranny—is the republican regime of each constituent state. Each state entered the Union acknowledged as a republic by all of the others. But how ‘republican’ were those states in which slaves “abounded”? Madison knew the answer, which he would write down in an unpublished note a few years later: “In proportion as slavery prevails in a State, the Government, however democratic in name, must be aristocratic in fact. The power lies in the part instead of the whole, in property instead of numbers. All the ancient popular governments were, for this reason, aristocracies. The majority were slaves….The Southern States of America, are on the same principle aristocracies.” In his own Virginia, he observed, the population of non-freeholding white and black slaves amounted to three-quarters of the population (Papers of James Madison, Volume XIII, p. 163).

Such regimes were republics in Montesquieu’s sense—”aristocratic” rather than “democratic” republics. For Montesquieu (following Machiavelli), “republic” meant simply that the regime did not amount to the ‘private’ possession of one person—a despotism. The definition derived from the Latin root of the word: res publica or ‘public thing.’ But to Madison and the rest of the Founders “republic” meant the “democratic” republic, only; in the words of Federalist #39, “it is essential” to republican government “that it be derived from the great body of society, not from an inconsiderable proportion or favored class of it.” And “it is sufficient for such a government that the persons administering it be appointed, either directly or indirectly, by the people”—i.e., the representative principle. Representatives represent the people at large, not some “favored class.” In his 1787 critique of the Articles of Confederation, “Vices of the Political System of the United States,” Madison went so far as to publish the sentence, “Where slavery exists the republican theory”—namely, that right and power are co-extensive because the majority rules under the laws of nature and of nature’s God—”becomes still more fallacious” than it does under conditions in which there is a large number of disenfranchised paupers.

All of this being so, the republican regime and the federal Union—the unity of the United States—began its life on a knife edge. The Framers hoped that their new Constitution would provide a framework for the peaceful resolution of the problem of self-government under conditions in some ways favorable—remoteness from Europe, commercial interdependence of the states, and all the other features described in the first Federalist —and in some ways ominous—the existence of anti-republican regimes on the borders and of anti-republican “domestic institutions” undergirding aristocratic ‘republics’ in many of the states themselves. They inserted the republican guarantee clause as one way of strengthening that framework. In a way, it did. But its enforcement came at horrible cost, decades later.

 

Article II, Section 2, Clause 2: “He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.”

Originally published in the “90-Day Study of the Constitution,” Constituting America, April 27, 2010.

 

As Publius reminded his readers in the forty-seventh Federalist, Montesquieu called the Constitution of England “the mirror of liberty”—so esteemed for its separation of governmental powers. So long as no one person or set of persons can exercise legislative, executive, and judicial powers, neither king nor aristocrats nor commoners can dominate the country. In the United States, where everyone is a commoner, separation of powers remains relevant to the sustenance of liberty. If “the accumulation of all powers” in “the same hands” can “justly be pronounced the very definition of tyranny,” then even a cabal of commoners might so empower themselves, serving as lawgivers, judges, jurors and executioners over their fellow citizens.

But if separation of powers serves as an indispensable bulwark of political liberty (Publius continues), one must understand it rightly, as Montesquieu did. Montesquieu “did not mean that these departments ought to have no partial agency in, or no control over, the acts of each other.” He only meant that no one department may “possess the whole power of another department.” To make the three branches of government entirely independent of one another would amount to making three distinct governments—uncoordinated, ineffective, hardly able to govern at all. No person or persons could be held responsible for government action or, more likely, inaction.

The president’s power to make treaties and nominations exemplifies these principles of liberty and responsibility. Under the Articles of Confederation, Congress negotiated treaties. This required the dispatch of one or more delegates, thus depriving one or more states of representation. On the other hand, a treaty, once ratified, is law—indeed, a supreme law. The executive branch must not legislate. Further, if treaties are laws disputes will arise requiring judicial attention—the province of neither legislature nor executive. If neither the Congress nor the President alone can assume the responsibility of treaty making, the only remedy can be to divide treaty-making into two parts, assigning each part to a different branch.

Then there is the matter of federalism. Treaties are the nation’s business, but do the states not want their interests represented, as well?

The Framers’ solution: the executive branch will negotiate treaties; the Senate will ratify them; the Supreme Court will adjudicate cases arising under them. But this separation of powers and duties does not and cannot imply isolation of powers and duties. Senators can advise the president on the treaty (before and after negotiations); although negotiations themselves ought to be confidential; they can then consent or ratify the treaty resulting from those negotiations. Thus both branches exercise mutual control over treaties without interfering with or encroaching upon one another.

The same goes for presidential appointments. Who will control the apparatus, the administration, of the American national state? Not Congress directly: As James Wilson argued at the Convention, “a principal reason for unity in the Executive was that officers might be appointed by a single, responsible person,” thus avoiding “intrigue, partiality, and concealment.” At the same time, complete presidential control over appointments could allow a president to create offices and fill them with his favorites—the very definition of ‘corruption’ as the term was used in the eighteenth century, and one of the most frequent complaints against monarchy. (Recall the words of the Declaration of Independence: King George III “has erected a multitude of New Offices, and sent hither swarms of Officers to harass our People, and eat out their substance.”) Again, the solution was to divide and correlate two powers, giving nomination to the president and appointment to the Senate. The sovereign people can clearly observe both of these governing actions and finally hold their representatives responsible for them.

The construction of the presidential powers of treaty-making and of nomination addresses the crucial issues of the character of the American regime and the structure of the American state. The people retain their sovereignty through their elected representatives. No one set of representatives governs without restraint from other sets of representatives. Through the Senate, the states have a decisive ‘say’ in both international lawmaking and the composition of the national administration. Both republicanism and federalism are preserved.