This article was commissioned by Law and Liberty as a response to an essay by Jay Nordlinger entitled “‘We Will burn and Loot and Destroy’: The Weather Underground and Its Legacy.” My response was published on March 23, 2021.

 

Revolution means regime change. Rulers, ruling institutions, the purposes of the country and its way of life: Revolutionaries aim at removing and replacing all of these with, well, themselves. If they reckon that they can do so nonviolently (1980s Central European nations and South Africa, 1950s France, 19th century England) they’ll do it that way. If not, not (America 1776-81, France 1789-93 and periodically thereafter Russia, Italy, Germany, China in the last century). The United States has seen one peaceful and successful revolution inaugurated by Progressives early in the 20th century, consummated in the New Deal and extended ever since. Its peacefulness was no guarantee of its justice, however, any more than the violence of the Founders’ revolution issued in tyranny.

Except for the War for Independence, violent revolutionaries have failed in America, consistently, with the partial exception of the post-Civil War Ku Klux Klan. The Weathermen count among those failures, I am happy to remark. Revolutionary violence is their “legacy” in the sense that they have passed it down to a subsequent generation—and, unexpectedly, to their enemies, as well.

Jay Nordlinger has assembled all manner of explanations folks offer for the two most recent surges of revolutionary violence. Recalling the Weather Underground, these explanations range from circular vaporing about the Zeitgeist (the late 1960s was “an extreme time”) to rationalization sans reason (they were only “young dreamers,” Martin Luther Kings of the pipe bomb), to pop sociology (they got together in groups, you see, and one wild thing led to another). Analyses of our own “extreme time” invoke the well-worn mantra of ‘race, class, and gender’ grievances with respect to the ‘Left,’ and pretty much the same thing on the ‘Right,’ with victims and exploiters reversed and Trump erected as lightning rod in the eye of the storm.

As Nordlinger kindly understates it, revolutionaries of the past half-century have proved “impatient of democratic processes,” unlike their Progressive predecessors. Most obviously, this has happened because while by definition (indeed tautology) all revolutionary violence aims at regime change, this violence aims at changing our  regime, the regime of democratic and commercial republicanism. But why the impatience?

When explaining themselves, contemporary revolutionaries claim that the American regime is neither democratic—controlled by capitalist paymasters, saith the ‘Left,’ or an internationalist ‘deep state,’ saith the ‘Right’—nor genuinely commercial—’free enterprise’ having produced nothing but servitude in the one narrative, or jobs lost to overseas sweatshops, according to the other.

It’s easy to pick out pieces of truth from all these explanations. But they all overlook the obvious. Revolutionary violence in contemporary America results from the nonviolent triumph of Progressivism itself. Whether the revolutionaries appropriate the name for themselves or abominate it as a synonym for “Legion,” they are unintended printouts of the regime Progressivism made.

American Progressivism has had a doctrinal element and a structural one. Doctrinally, Progressivism derives from the moral crisis seen in 18th century Europe. Where does morality come from? For centuries, of course, the answer was “God.” From Machiavelli to the French Encyclopedists, ‘the moderns’ had challenged the teaching of Christianity; whether ‘Enlightened despots’ like Frederick the Great or ‘Enlightened democrats’ like Tom Paine, many of the most prominent politicians and polemicists had ruled out God as the source of moral principles, whether tacitly or explicitly. Many of these men substituted what they called ‘natural right’—often amounting to little more than utility—for divine right.

But nature as the source of morality soon came under attack. If, as the Enlighteners claimed, nature is little more than matter in motion, how do you derive right from that? David Hume, who answered that question by saying you can’t, inclined to explain morality as a set of customs; others (Rousseau, Adam Smith) chose natural sentiments; still others, utilitarianism stripped of natural right. The theory that proved most persuasive to the university professors who educated subsequent generations of preachers, politicians, and writers itself came, sure enough, from a university professor. As is well known among university professors, G.W.F. Hegel argued that moral and political right come from the course of history, which he explained as the rational unfolding of the ‘Absolute Spirit,’ the animating principle of all that exists. According to this doctrine, all that has happened (generally, if not down to the details) happened according to the impersonal and irresistible ‘laws of history.’ There is nothing above and beyond ‘History’—very much with a capital ‘H.’

Marxian socialism and Spencerian capitalism take Hegel and made him empirical. They retain ‘History’ and its supposed iron laws. As has been exhaustively documented by scholars of the history of ideas, the American Progressives who took over U.S. university faculties in the aftermath of the Civil War adopted these doctrines and ‘democratized’ them. No dictatorship of the proletariat for them; no Social-Darwinist struggle for survival, either. They preferred a gradual but determined walk towards egalitarianism, a walk undertaken with the consent of the governed, not a forced march. Leaders of opinion—Woodrow Wilson, FDR, JFK—not leaders of battalions would show us how to ‘get on the right side of History.’

To aid in this, and to consolidate ‘progress,’ they instituted a ruling structure, the equally well-known administrative state, a centralized bureaucracy that would regularize and regulate the new regime. Bureaucratized and state-subsidized universities, staffed by Progressive teachers and administrators, would train both the leaders and the functionaries of the new regime, often interlocking with business corporations—themselves now extensive and often international bureaucracies. Undemocratic? Of course—even aristocratic or oligarchic (‘meritocratic’ to its friends). But, as Tocqueville had seen a century earlier, bureaucracy imposes a “soft despotism” that readily arises out of a democratic-egalitarian civil society.

The revolutionary violence of the past fifty years or so has resulted in what liberty-minded economists like to call the unintended (though far from unforeseeable) consequences of both Progressive doctrine and Progressive institutions. Such violence aims at the destruction of private property and persons—specifically, “members of the ruling class,” as one radical group put it.

With ‘History’ on one’s side, violence is easy to justify. If, according to the doctrine of historical fatalism, human beings have no innate rights, then they are expendable. The Weathermen and their allies made this obvious in both deeds and words. Wherever radicals ‘Left’ and ‘Right’ have seized state power, the butcheries multiply. On the ‘moderate’ side of the continuum, extremists can eliminate their enemies by means of harassment and censorship—’cancellation.’ More subtly, but no less tellingly, Noam Chomsky warns that violence is wrong not because it’s immoral, a violation of human rights, but because it’s tactically inept, “a major gift to the Right”—a mistake, but only a tactical one. Bad publicity. If your enemies are destined for History’s dustbin, they only have rights so long as you are not yet in a position to show them that they don’t. And don’t forget to decry ‘bullying’ in the meantime.

As for the excesses of extremists in practice, one may, understandably, wonder at the folly of the Capitol Hill ‘stormers’ taking selfies (real revolutionaries don’t do things like that) or Antifa-ites rampaging in Portland, one of the most socialist-sympathetic cities in America. Such wondering will cease if you recall Tocqueville’s analysis of the Jacobins. Old Regime France was one of the earliest examples of the centralized modern state, the one in which the monarch no longer claimed the status of first among his aristocratic equals but enforced recognition of his absolute sovereignty, gathered the aristocrats out of the countryside into the palace of Versailles, and replaced them with administrators beholden to himself. As result, no one in France had any practical experience in politics and government. There hadn’t been any real citizens in France for more than a century, even among the aristocrats. When the revolutionaries overthrew their rulers and took over, “impatience with democracy” soon infected the democrats. The guillotine proved so much quicker. Like the Jacobins during the Reign of terror, today’s looters, bombers, and burners can’t even govern themselves. By its top-down, centralized way of ruling, the administrative state weakens the practices of self-government, eventually wiping out the knowledge of how to do it and corrupting the moral capacities needed to do it in a civil and sensible way Like the Marxist ‘consciousness’ it imitates, ‘wokeness’ turns citizens not so much into sleepwalkers as sleep-rampagers, somnambulists of self-righteousness.

The original American Progressives proceeded peacefully, profiting from the contrast between themselves and the violent anarchists and socialists that made the 1890s and early 1900s a time of heightened social violence. They took control of the education system, as recommended by men like Woodrow Wilson and John Dewey. The doctrines and political structures they fostered in that system have gradually weakened the system itself. When the New Leftists of the 1960s retooled themselves as schoolteachers in the 1970s, they followed the Progressives’ tactics, abandoning the notion that ‘democracy is in the streets’ and bringing their own version of democracy into the classroom. The revolutionaries who have learned New-Left doctrines in those classrooms now devour both their own children, in the abortion mills, and their own parents, first in academia, then in every other dimension of American life. In that sense, today’s extremists do carry on the legacy of the violent portion of the Sixties Left.

Edward J. Erler: The United States in Crisis: Citizenship, Immigration, and the Nation State. Claremont: The Claremont Institute, 2020.

 

Amidst the farrago of blather that has been uttered and scribbled on the topic of immigration in the United States, at last we have an astringent, clear, Constitutionally sound analysis. Professor Erler strikes one as a man who suffers fools ungladly, choosing only the most important fools to target—most notably the Supreme Court justices who scrambled the issue almost beyond recognition, nearly a century and a quarter back.

“This volume presents a defense of the sovereign nation-state and its essential component, citizenship.” The nation-state has been under attack by ‘internationalists’ for a long time, blamed for war, economic depression, and social prejudices of every description. Erler exposes the underlying animosity: “the nation-state is the only form of political organization that can sustain constitutional government and the rule of law. No empire has ever been a constitutional democracy or republic, nor will constitutional government exist in global government.” In the eyes of internationalists, that is precisely the problem with it. Whether ‘idealists’ who seek the end of human conflict or ‘realists’ in corporate boardrooms hankering for worldwide oligarchy, internationalists find in the nation-state an annoyingly retrograde political phenomenon, one that persists in giving scope to politics as the classical writers understood it: ruling and being ruled, rule by consent of the governed. It would be so much better, internationalists feel, if only we all submitted to rule to people like themselves, experts in ‘scientific administration’ or, as Erler puts it “the rule of scientific experts.”

The ‘scientists’ have been experimenting on us for some time. The United States no longer has the democratic republic established by the American Founders, beginning in 1776 and culminating in their inheritors—the Americans who won the Civil War prior to framing and enacting the Thirteenth, Fourteenth, and Fifteenth Amendments. That regime rested on the sovereignty of the American people, although it unjustly excluded slaves from that category. James Madison identified it as the distinctively American form of republicanism—’republicanism’ having become a somewhat squishy term, since Machiavelli, who defined it as any regime other than a monarchy ruled by a ‘prince.’ We now have, at best, a ‘mixed-regime’ republic, with the original popular sovereignty counterweighed by what amounts to an oligarchy consisting of unelected bureaucrats who are nearly impossible to remove from office. Not to put too fine a point on the matter, Erler writes, “the Washington political establishment and the ruling elites…have transformed the regime into an oligarchy.” Oligarchs restrict citizenship to themselves. The fascinating move that American oligarchs have made has been to disguise their long march to oligarchy as an expansion of citizenship. It is this strategy of feinting and brilliant insinuation that has made their movement so effective.

“My intention” he writes, “is to revive the debate about American citizenship so that, even at this late date, it can be restored to its original basis as articulated by the Founders who knew better than today’s progressive liberals the crucial relationship of citizenship to the sovereign nation, constitutionalism, and the equal protection of equal rights, which we designate as the rule of law.”

All political regimes answer the question, ‘Who rules?’ Rulers may rule as masters over slaves (tyranny), parents over children (kingship), or as citizens among fellow citizens (republicanism). Whatever the regime might be, it will distinguish between those under its rule and those who are not—foreigners. If the regime is republican in the American-Madisonian sense of a self-governing, sovereign people who elect representatives to govern them, their protection of such citizens from foreigners who may not share the same regime principles requires clear territorial borders, defensible against invasion by foreigners. On this point, however, both progressives and libertarians demur. “Libertarian and progressive liberalism seem to agree on open borders, meaning the nation is defenseless to defend its borders and therefore not sovereign.” Both libertarians and progressives are apolitical or indeed anti-political, albeit in different ways. Libertarians dislike politics because it political activity may interfere with capitalistic acts among consenting adults; progressives dislike politics because it interferes with administrative ‘management’ of populations they suppose incapable of governing themselves wisely and efficiently. The 1892 Supreme Court thought differently. In the majority opinion deciding Nishimura Ekiu v. U.S., the Court observed that “It is an accepted maxim of international sovereignty, and essential to self-preservation, to forbid the entrance of foreigners within its dominion, or to admit them only in such cases and upon such conditions as it may see fit to prescribe.” 

Protection of borders as a means of securing the self-preservation of citizens? All wrong, ‘progressives’ contend. Borders themselves are objectionable; they themselves cause conflicts. “Progressive liberalism no longer views self-preservation as a rational goal of the nation-state; rather, self-preservation just by subordinate to openness and diversity,” said by ‘progressives’ to be the only true harbingers of peace among nations. As then-Vice President John Kerry intoned, Americans must “prepare [themselves] for a borderless world.” “A world without borders,” Erler replies, “will be the ‘universal and homogeneous state,’ the European Union (EU) on a world scale,” a state ruled “by unelected bureaucrats or administrative experts, much like the European Union is run today.” Political liberty, citizenship, has proven itself “a dangerous delusion now dispelled by science,” to be replaced by “welfare” defined and provided by the oligarchs who will rule us for our own good, as defined by themselves. This sounds like parental or ‘kingly’ rule, a sort of infantilization of the human race, but Erler inclines to expect it to be tyrannical, ruling for the good of the rulers. “This universal tyranny will be no different—no less severe, no less degrading—than the tyrannies of the past. In fact, this universal tyranny will bring a new kind of terror and violence to its rule; it will be more efficient and pervasive because it will be backed by all the innovations of science and justified by the advancement of the human estate, the professed goal of modern science from its very beginning,” as seen in the writings of Francis Bacon. 

That is, the ‘diversity’ of the many peoples of the world will be given lip service, but the worldwide regime will be homogeneous, with no meaningful degree of federalism, separation of powers, or any of the other institutional safeguards Americans once esteemed. Erler does not explain why such homogeneity of rulership must be tyrannical, but he likely has in mind a lesson learned from his eminent teacher, Harry V. Jaffa, who learned it from Aristotle. The social foundation of the polis, Aristotle observes, is the family. The family begins with heterogeneity, not homogeneity, with male and female. The married man and woman do much more than produce children; they govern children after producing them. In ruling the household, the parents rule one another, reciprocally, as husband and wife, while ruling the children by command, as father and mother. Because families cannot themselves supply all their own needs, they form associations with other families, eventually forming poleis or ‘city-states.’ The best practicable regime for a polis is the ‘mixed regime,’ a decidedly heterogeneous form of government whereby the two main social classes, the many who are poor and the few who are rich, establish a balanced way of ruling, preferably with the help of a moderate ‘middling class,’ which serves as arbiter between the two social extremes. It is therefore logical for today’s proponents of the universal and homogeneous state not only to eschew heterogeneity when it comes to actual ruling but also to deny the heterogeneous origins of politics by denying that ‘male’ and ‘female’ are real categories at all. What the neo-Marxist Herbert Marcuse lauded as ‘polymorphous perversity’ will yield not some sort of communitarianism but fake diversity ruled by real masters. (1)

If citizens of republics are reduced to clients under a worldwide oligarchy, the consent of the governed will go. As Montesquieu argued, “The best guarantee of a peaceful and free world would not be a global state, but a system of nation-states made up of liberal democracies,” since such regimes “rarely (if ever) go to war with one another.” This does not commit us to the over-optimistic project of President George G. W. Bush, who dreamed of “ending tyranny in our world” (as he put it). It rather partakes of a realism more realistic than either ‘idealism’ or ‘realism’ as they have been defined by progressive liberalism—the political realism that wants to know, first and foremost, what kind of regime we are aiming at, and then considers how it might be achieved without foolishly huge expenditures of blood and treasure. Bush “did not seem to realize that it would require a universal tyranny to end tyranny in the world” because “the desire to rule will remain a permanent feature of the human soul,” unless some set of clever, scientifically adept bureaucrats figures out a way to expunge it from us, effectively dehumanizing us. Unfortunately, as Erler remarks, “the human capacity for self-deception is almost unlimited.”

Consistent with his preference to resist such wishful thinking, Erler doubts that a reversal of the ‘globalist’/administrative state project will be effected, although he does not call it impossible. In America today, “the political atmosphere of the 1850s has been recreated. Reason has been driven from the public square, and hysteria has replaced discourse.” He remarks that “all of Lincoln’s great speeches of the 1850s…were dialectical and rhetorical masterpieces but political failures. The greatest logic is impotent when the audience is unwilling to listen to reason,” indeed preferring in some circles to excoriate reason as an instrument of oppression—one that gets in the way of imposing the form of oppression they have in mind. Erler firmly identifies the chatter about ‘racism’ as racist, “purely and simply a demand of racial superiority, not a demand of equal justice under the law.” To ‘defund the police,’ as the new racists demand, will open the space for such new political parties as Black Lives Matter and Antifa to “become the de facto police forces, enforcing the various rules and regulations against racism and white privilege.” “Like police forces in every other Third World country, political crimes (violations of political correctness), not crimes against persons and property, will be their focus.” 

This strays rather far from the principles of the Declaration of Independence, doesn’t it? “The Declaration of Independence announces that the United States has become a separate and equal nation dedicated to promoting the safety and happiness of the people.” The American people wanted political independence from the British Empire because that empire was tyrannizing over them by, among other things, sending unelected administrators to American soil with the purpose of “eating out our substance” with various forms of taxation. And as for the happiness of the people, that and that alone can provide “the ground of friendship that is the basis of citizenship,” which can only be found “in particular nations that are separate and sovereign”—self-governing on the basis of shared principles and shared habits of mind and heart.

“For many years, progressive liberalism has asked us to believe something incredible: that the most important and admirable aspect of the American character is defined only by its openness and unlimited acceptance of diversity.” But ‘diversity’ without any rational definition which says what the limits of diversity are really amounts to a rhetorical tool of dividing and conquering. “No one can be a ‘citizen of the world.’ The phrase itself is a simple contradiction. To be a citizen is to belong to a particular regime, and a particular regime cannot be a universal regime.” [2] Far from strengthening America, ‘diversity’ promotes “division and contention,” “racial and ethnic division and something resembling the tribalism that prevents most of the world from making constitutional government a success.” Diversity “means that we have less in common, and the more we encourage diversity, the less we honor the common good,” the more we ‘open’ ourselves to the dissolution of America and the consequent strengthening of the project to found “the universal homogeneous state, which will use diversity to dispense with the common good and constitutional democracy” for the benefit of the oligarchs. One might add that the agitators against ‘racism’ and the various ‘phobias’—homo, trans, Islamo—and all others “that make up the universe of political correctness” are likely to find themselves duped and coopted by the rather better-armed and better-organized elites that they imagine they are heroically resisting.

How, then, does the United States Constitution define citizenship? Initially, it didn’t: although the Constitution stipulates that only a “natural born Citizen, or a Citizen at that time of the Adoption of this Constitution,” may serve as president, “no definition of natural-born citizen was included in the text of the [original] Constitution.” Such a definition was included only in 1868, with the Fourteenth Amendment. Before that, “as a practical matter, state citizenship determined federal citizenship with respect to eligibility to constitutional offices. Anyone who was deemed to be a citizen of one of the ratifying states was considered to be a citizen of the United States.” Since citizens cannot exist prior to the existence of the civitas, since citizenship itself isn’t natural, no one could have been a citizen of the United States before 1776, when the American people declared their independence from the British regime. “Questions of citizenship will always provoke regime questions—what are the principles and character of the regime and constitution?—because citizens, as Aristotle rightly argues, are relative to the regime.” This means that the first natural-born citizen of the United States to serve as president was Martin Van Buren, who didn’t arrive in the White House until 1837. What, then, made the previous presidents Constitutionally licit? The answer is that this was simple necessity; “the founders of the laws are a law unto themselves,” always and everywhere. Less dramatically, one might say that founders ought to obey the laws of nature and of nature’s God, but in framing conventional laws, constitutional laws, they can at best obey those laws only insofar as they are practically ‘obeyable.’ And so George Washington was bound to exercise his executive powers according to the provisions of the Constitution, but neither he nor any other American could have met the requirement of “natural born Citizen” and also fulfill the requirement of being thirty-five years of age or older in the 1780s indeed until 1809. This still leaves a gap of nearly thirty years between Madison and Van Buren, but the American people cheerfully elected more mature candidates in that period, notwithstanding Constitutional stricture, respecting the prerogatives of the founding generation, to say nothing of the advisements of common sense.

In the words of the Fourteenth Amendment, “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” Some thirty years later, the Supreme Court misinterpreted the phrase “subject to the jurisdiction” in terms of English common law. But in fact “the phrase ‘subject to the jurisdiction’ is completely alien to the common law” and “the author of the citizenship clause did not mention the common law when he introduced it in the Senate” in 1866. Indeed, “no principal supporter of the citizenship clause, nor anyone who spoke in its favor, ever mentioned the common law, or Blackstone, or Sir Edward Coke, the author of the opinion in the Calvin’s Case (1608) which was the first case to codify British subjectship.” British subjectship isn’t American subjectship because the British regime isn’t the same as the American regime. The British regime of 1608 was a monarchy; one person was sovereign, not few, and surely not many. There were no citizens under the monarchy, only subjects, because (as Blackstone explains) allegiance to the king is said to be natural, a “debt of gratitude” to the king for his protection of his subjects. That is, British subjectship is an condition of feudal fealty, no feature of popular sovereignty in a republican regime.

The author of the 1898 majority opinion in United States v. Wong Kim Ark, Justice Horace Gray, imported a common law criterion into American constitutional law. This “provoked a vigorous dissent by Chief Justice Melville Fuller,” joined by the great Justice John Harlan. Fuller argued that “whatever in the common law that was incompatible with the principles of the Declaration was null and void from the beginning.” After all, what did the Declaration declare if not the independence of the American people from the British regime? By further declaring that the consent of the government undergirds the just powers of government, the Declaration replaces “passive subjectship” with “the active participation of citizens in their own government.” As James Wilson (who signed both the Declaration and the Constitution) wrote, “under the Constitution of the United States there are citizens, but no subjects,” and therefore American citizenship has never depended upon common law. 

Justice Gray was following the claim of the distinguished if somewhat dodgy commentator, James Kent, who claimed that while “the term citizen seems to be appropriate to republican freemen, yet we are, equally with the inhabitants of all other countries, subject, for we are equally bound by allegiance and subjection to the government and law of the land.” But this is hardly so, inasmuch as in the American republic the people are sovereigns, not their government. Kent effectively smuggled a European notion into American law, via the Supreme Court. To this day, even though the British regime is now a republic, not a real monarchy, the government is sovereign. Not so under the U. S. Constitution, rightly understood. Erler aptly quotes James Madison, who counted among “the fundamental principles of the Revolution” the intention “to rest all our political experiments on the capacity of mankind for self-government.”

Given the importance of consent, the state governments determined that “no one who was unwilling or unable to fulfill his obligations as a citizen would be acceptable as a citizen.” Such persons included those who had taken up arms against the British and those who declared allegiance to the newly constituted regime within a reasonable time, typically between 1776 and 1783, when American independence was recognized by the British themselves, two years after the ratification of the Articles of Confederation. In that first American national constitution, the Framers set down that “The Citizens of each State shall be entitled to all privileges and Immunities of Citizens in the several States.” This clause raised the worry that free black citizens might resettle in slave states, then demand full privileges and immunities. “this was probably the real reason that ‘citizen’ and ‘citizenship’ could not be defined in the Constitution until the slavery issue was resolved,” an event that could not have happened “without a strong national government” along the lines of the 1787 Constitution, not the Articles. As affirmed in the 1844 case, Lynch v. Clarke, the 1787 Constitution made citizenship a matter to be determined by the United States Congress, not the states, although it also (and unjustifiably) claimed that the Declaration of Independence was based on the English common law—oddly conflating common law with the law of nations, which the Declaration did indeed appeal to.

It is of course true that the Framers imported many features of the English common law into the new regime. Treason, cases in equity, bills of attainder, the writ of habeas corpus, trial by jury, bail—all these were retained. But the Founders understood them not simply as common law principles but as natural rights, or rights derived from natural rights, not historical or conventional rights only. Kent himself acknowledged this. 

The principle of consent differs from common law not only in eschewing feudal fealty and government sovereignty but in establishing the right of expatriation, denied by the common law principle of perpetual allegiance. In the United States, allegiance to the republic is consensual, as in the Flag Pledge, as “the right of expatriation was always implicit in compact theory,” given that theory’s affirmation of choice as “impl[ying] reason and natural right,” not the divine right of kings over subjects. As James Wilson wrote in his Lectures on Law, “every man being born free, a native citizen, when he arrives at the age of discretion, [he] may examine whether it be convenient for him to join in the society for which he was destined by his birth. If, on examination, he finds, that it will be more advantageous to him to remove into another country, he has a right to go.” As Erler remarks, this is right out of John Locke’s Essay on Civil Government. Locke holds that a child remains under his father’s authority until “he comes to the age of discretion; and then he is a freeman, at liberty what government he will put himself under, what body politick he will unite himself to.” “Natural-born citizen” therefore means “anyone born in the United States after the date of the Declaration of Independence” who does not renounce citizenship upon attaining his majority—with the aforementioned, necessary exception of those members of the founding generation born under British rule who consented to the American people’s independence under the laws of Nature and of Nature’s God. “The common law of perpetual allegiance and birthright subjectship was replaced by voluntary consent as the basis of republican citizenship.” One might say that the right of expatriation is the equivalent of the natural right of a people to alter or throw off their government.

Getting down to the case in question, United States v. Wong Kim Ark, Erler recurs to Coke’s opinion in Calvin’s Case. “Ligeance is a true and faithful obedience of the subject due to his sovereign,” Coke maintained—a condition inherent in subjecthood itself. “For, immediately upon their birth they are under the king’s protection.” This differs from the language of the Fourteenth Amendment, which refers to citizens as persons subject not to a monarch but to the jurisdiction of the United States, where the government is subject to the people, not the other way around. As Erler puts it, “the framers of the Citizenship Clause intentionally avoided using the word ‘allegiance’ in the clause because they wanted to dispel any idea that citizenship derived from the common law.” The Civil Rights Act of 1866, enacted a year before the Fourteenth Amendment, defined citizens as “all persons born in the United States and not subject to any foreign power, excluding Indians not taxed.” Therefore “not everyone born within the geographical limits of the United States was deemed a citizen by birth” because “not everyone born within the geographical limits of the United States was ‘subject to the jurisdiction’ of the United States.” For example, the child of a foreign diplomat born here did not become an American citizen. Far more important, framers of the Fourteenth Amendment, who followed the same principles as those who wrote the Civil Rights Act, intended “to complete the Founding by implementing the principles that the framers were compelled to postpone” by means of the several compromises with the slaveholders who came to deny that slaves had the natural right to liberty. “From this point of view, the Civil War must be understood as the last battle of the Revolutionary War,” or perhaps more precisely as Revolutionary War II, “since only the Reconstruction Amendments bring the Constitution into full compliance with” the fundamental principles of the American revolution or regime change. Among other things, the Fourteenth Amendment overturned “the infamous Dred Scott decision, which had held that no Black of African descent, slave or free, could ever by a citizen of the United States.” On the contrary, they are “natural-born citizens” as much as their white former masters.

Wong Kim Ark was born on American soil, the child of parents who were Chinese subjects but domiciled in the United States. There being no treaty between the United States and the sovereign emperor of China which would permit Chinese subjects to become U. S. citizens, the question became, did their son nonetheless become a citizen by virtue of his birth on American soil? In 1890 he traveled to China, returning to America and readmitted “as a native-born citizen,” but four years later he did the same thing and was “refused readmission on the grounds that he was not a citizen of the United States.” The Supreme Court took the case in an attempt to eliminate such arbitrary decisions by the government.

Writing for the majority, Justice Gray claimed that the Fourteenth Amendment “must be interpreted in the light of the common law, the principle and history of which were familiarly known to the framers of the Constitution.” Familiarly known, to be sure, but adopted in wholesale? As Erler has already shown, hardly so: “Justice Gray’s attempt to import the Civil Rights Act and the Fourteenth Amendment into the common law is a fantastic sleight of hand,” as “both were a reflection of the Founding principles that had rejected common-law standards,” except insofar as they were consistent with natural rights. Oddly, earlier in his career Justice Gray did adhere to the compact interpretation of the Constitution. “How Justice Gray came to believe that Americans wanted common-law citizenship is still a mystery.” One may, however, speculate. It is true that Woodrow Wilson, who rejected natural-rights constitutionalism, favored the English common law, comporting as it did with his historicist and statist principles, principles that were developing into full-blown Progressivism by the time Justice Gray wrote his opinion. It may be that Gray was going with the prevailing ideological flow. But there is no evidence of this, and so it remains conjecture, only.

Erler himself skips over the Progressives, quite sensibly turning to the next major events in the immigration controversy, namely, the three laws that comprised the centerpiece of President Lyndon Johnson’s ‘Great Society’ legislation: The Civil Rights Act of 1964, the Voting Rights Act of 1965, and the Immigration Act of 1965. The latter “has had a dramatic impact on the demographic transformation of American society and…American politics.” “This may have been the unspoken imperative of the administrative state,” which has at least partially established not only an oligarchic regime in the United States but also the practice of governmental sovereignty. 

Beginning with the Civil Rights Act, although the language of the Act guaranteed equality of opportunity, only, it was soon transformed by federal administrators into an instrument enforcing preferential treatment of hitherto disadvantaged racial minorities under the principle of equality of results. “Equality of result, it was argued, was the only real proof that equality of opportunity was not in fact a sham or a mere illusion.” Although President Kennedy had rejected the quota system which aims at enforcing equality of results, the bureaucrats charged with enforcing the law he had championed, and which President Johnson signed, had other ideas. “Whatever may have been the intentions of the framers, the Civil Rights Act was transmogrified, under the close supervision of the administrative state, into a measure that required racial classifications to achieve compensatory justice for racial class injuries—quite in opposition to the natural-rights principle whereby rights inhere in individuals by nature and in groups organized by their consent under governments constituted by themselves. Racial rights and privileges treat rights of groups that did not organize themselves by consent—whites, blacks, other ‘peoples of color—as if they had. “This happened despite repeated assurances from members of Congress that the Civil Rights Act could never be construed to require hiring or promotion or firing on the basis of race or color.” The Voting Rights Act of 1965 “suffered a similar fate” under the direction not only of the administrative state but of the courts; “what was intended as a bill to end racial discrimination in voting” quickly became “one that required racial discrimination in voting to reach racially proportional results.”

The subsequent Immigration Act seemed different, as it abolished an existing quota system. But it replaced it with another, this time favoring immigrants from “the areas of the world that had been excluded in the past.” “After 1965, the majority of immigrants would come from the Third World, particularly from Latin and South America and Asia.” Why? “The welfare bureaucracy—with its allies in the civil rights community—was eager to perpetuate the dependence of new immigrants, whether legal or illegal,” upon itself. Previous immigrants had been admitted as potential citizens expected to participate in the American workforce, not as prospective clients of the administrative state. That now changed. “The administrative state has a life of its own. It seeks to extend the reach of its influence and magnify its power, and it does so largely out of sight of the public. Its weapons are administrative regulations an policies of indirection, all backed by the cooperation of a compliant court system.” With regard to the latter, Erler cites the 1982 case, Plyler v. Doe, which held that the Fourteenth Amendment’s equal protection clause meant that a state may not deny public education to the children of illegal aliens. “Only in the world of postmodern citizenship—hurtling toward the homogeneous world state—was such a spectacle possible: illegal aliens demanding a law that would challenge the sovereignty of the United States.” “The right to determine citizenship and to defend borders is inherent in the idea of sovereignty. Surrender these fundamental attributes and it is a simple fact that no nation can remain sovereign.”

And it is more than a matter of sovereignty alone. The United States Constitution constitutes not the American people, who existed long before its ratification, but the formal or institutional capstone of the American regime. That regime depends not only upon its ruling institutions but upon the character of its rulers, the American people, and upon their way of life. As Thomas Jefferson wrote in his Notes on the State of Virginia, refugees from despotic governments “will not become good republican citizens—or at least not easily and not quickly,” through no fault of their own but because under such regimes they will not have developed the habits of mind and heart that conduce to self-governing citizenship. To say that all men are created equal under the laws of Nature and of Nature’s God is not to say that all ways of life, all regimes, are equally good; if they were, why would anyone flee their own country, under its regime, for another? Freed from the fetters of despotism, immigrants from badly ruled countries are likely to revel in what Jefferson called “unbounded licentiousness” instead of the rational liberty a republican regime requires for its prosperity and indeed its survival. Although Erler thinks that “Jefferson underestimated the capacity of the United states to assimilate a wide variety of peoples,” he joins with him in opposing mass immigration from “those countries whose people would have the greatest difficulty assimilating.” And he rejects the claims of ‘diversity’ advocates in and out of the administrative state who have worked to convince immigrants that it is wrong for them to assimilate.” “Multiculturalism dissolves and dissipates a nation’s strength. A nation-state must have a common good, something that all citizens share and look up to, something that transcends their immediate interests, something that is patriotic.” At one time, in America, that was the principle of equal natural rights. Those rare governments aimed at securing such rights have every right to defend themselves by regulating the flow of immigrants who seek entry.

Advocates of open borders will reply that United States v. Wong Kim Ark and Plyer v. Doe may or may not have been rightly decided on the basis of law, but they were good decisions notwithstanding because they were compassionate decisions. Why, they will ask, should Wong Kim Ark not have been allowed to reunite with his parents, after having lived in the United States all his life? And why should the innocent children of admittedly illegal aliens not be afforded an education by a country wealthy enough to afford such liberality? Should not the secular equivalent of the universal ‘new law of love,’ enunciated in the New Testament, not override the particularistic ‘old law’ of Israel? Erler concludes with a crucial point: compassion isolated from reason is not morally dispositive. “Immigration driven by compassion is misplaced. compassion is sometimes necessary in extraordinary situations, but as a general policy, it only exhibits weakness to the world…. The few remaining constitutional democracies cannot allow their immigration policies to be driven by compassion; if they allow their borders to be erased in the pursuit of that goal, they too will dissolve into dysfunction,” becoming exactly the kind of ‘failed states’ that immigrants are attempting to escape. Compassion is a passion, however generous. Like all passions, it is moral only if bounded by rational limits or, as it were, clear and well-defended borders.

 

 

 

Notes

1. See Harry V. Jaffa: “Chastity as a Political Principle: An Interpretation of Shakespeare’s Measure for Measure.” In John Alvis and Thomas G. West, eds.: Shakespeare as Political Thinker (Durham: Carolina Academic Press, 1981), p.197).
2. Alternatively, one might say that the regime of a worldwide government would be a particular regime—the only one left in the world—but the chances of its being a republic would be miniscule, given the oligarchic character of the administrative state and the ever-increasing technical means it has at its disposal to issue and execute commands. The so-called Peoples Republic of China already demonstrates how this can be made to work.

 

George William Van Cleve: We Have Not a Government: The Articles of Confederation and the Road to the Constitution. Chicago: The University of Chicago Press, 2017.

 

At the end of August in 1787, the French chargé d’affaires in the United States reported to his superiors at Versailles that the American “provinces” tended toward democracy, and therefore to instability. As the turmoil increased, he predicted, the Union would dissolve, as the federal government lacked the authority to prevent its own demise. The French government, he added, could watch this devolution with equanimity; by its timely intervention in the American war for independence, the French had deprived Britain of “that vast continent.” Given the geopolitical purposes of the Bourbon monarchy, that sufficed. Further American woes “will not be regretted by us.” They might indeed prove beneficial, as a North America divided into small-to-medium-sized states, along European lines, could lend itself to a French return to imperial balance-of-power ‘great politics’ on the continent. 

For the Americans themselves, Van Cleve writes, “the true heart of the controversy over the Confederation’s collapse was whether Americans were willing to transfer sovereignty—tax and enforcement powers—to a central government.” More precisely, the American people needed to decide whether to delegate a greater portion of their own sovereignty from the states to the central government. That government already had some elements of such delegated sovereignty but it lacked power to raise money to make them effective.

“Like the revolution, the Confederation’s final years were marked by deep divisions about whether and how two fluid, potentially conflicting ideas—empire and republicanism—should be embodied in any new central government.” To elaborate, Americans disputed what kind of state they wanted and what kind of regime they wanted. In terms of the state, how big did Americans want their country to be, and more, how centralized did they want their government to be? In terms of regime, it was agreed that the United States should be a republic, but what were the implications for republicanism of increasing the federal state’s size and centralization? Would America become the Rome of the New World, eventually sacrificing its republicanism on the altar of empire? 

In pointing to these political questions, Van Cleve rightly corrects the socio-economic interpretations of Charles Beard and Merrill Jensen, who deny that the Confederacy suffered from any real crisis at all, claiming that the 1787 of the Constitution amounted to little more than a power grab, a “conservative counter-revolution” by the American gentry class. Without in any way ignoring the financial and other economic dimensions of the matter, Van Cleve emphasizes that “Confederation reform was driven most heavily by the perceived need to create a sovereign national government”—sovereign in the sense of power delegated by the sovereign people, sovereignty they are forever entitled to rearrange to their liking, under the “Laws of Nature and of Nature’s God.” Such a government “could preserve American independence, protect western expansion, combat foreign trade aggression, provide unified continental government and law enforcement, and maintain internal order.” He adds, “the Confederation lacked every one of those capabilities.” 

Van Cleve begins with a description of American civil society as it emerged from the Revolutionary War. Socially, the war democratized American society; having won their independence on the battlefield, ordinary Americans scarcely intended to turn their governance over to the native gentry classes. The 25,000-to 30,000 American war deaths were the equivalent of 3 million deaths today, with the South suffering the most. On the civil-social level, the gentry could not rule alone, as “the increased prominence of the middling class…played a role in shaping the new constitutions adopted during the war by nearly all states” in the Union. In many states, this meant that voting rights were extended far beyond any other country in the world—even in Massachusetts, where John Adams’s 1780 constitution “was clearly intended to maintain rule by property owners,” and much more dramatically in Pennsylvania, where property qualifications (“other than” for purposes of “tax paying”) were eliminated altogether.

At the same time, the war threw the federal government far into debt. Like so many governments before and since, the government sought to reduce its debt by inflating the currency, issuing “about $241 million in paper money”—a sum that may have been “larger than the entire American gross domestic product at the time.” Although the peace treaty with Britain stipulated that British creditors were to be permitted to recover “the full value in sterling money of all bona fide debts,” that wasn’t going to happen. Not only inflation, but the attendant high interest rates, lack of capital for investment, the absence of proper bankruptcy laws, and a severe recession did nothing to improve the temper of the sovereign people, ninety percent of whom lived on farms and thus needed to borrow money against the projected value of their annual harvests. 

Politically, the republican regime therefore faced threats from foreign creditors—European empires, some still with a military presence on the continent—and a formidable class of domestic ‘creditors,’ namely, the soldiers, a class of men known to have overthrown republics in the past. How to proceed?

Congress debated several policies. The federal government might retain the existing “requisition” system, accepting monies from the states to pay federal debts. It might design new tax powers for itself. It might also sell its vast western lands. It might even turn “most if not all of the Confederation debt over to the states for repayment.” “Some historians claim that transferring the domestic debt to the states and land sales would have solved the Confederation’s debt problem without any need for requisitions.” Mere budget-cutting and deficit financing, both of which the government did, didn’t come close to solving the problem, and by 1786 by Confederation “was not even covering its normal operating costs.” 

The requisition system failed because states were either unwilling or in some cases, especially in the South, unable to pay. But “states chose not to pay requisitions primarily because they were politically unpopular, not because the states or their people could not afford to pay them.” This raised questions about the viability of civil-socially democratic republics, which evidently lacked sense of moral responsibility needed to govern themselves sufficiently to meet their financial obligations. “No one ever proposed a workable method of forcing states to comply with requisitions”; as Elbridge Gerry remarked, even if the foreign and domestic debts were separated, the Southern states wouldn’t repay the Northerners, and the Northerners would retaliate by “refus[ing] to pay their share of the foreign debts or Confederation expenses.” What is more, many in the war-ravaged South saw little or no reason to pay anything to the Brits: As more than one aggrieved debtor asked, “If we are now to pay the debts due the British merchants, what have we been fighting for all this while?” And obviously, too pay any of the debt in sharply depreciated currency amounted to welshing on the loans by other means. Either way, the federal state would soon disintegrate altogether, its public credit ruined, the political credit of democratic republicanism to follow.

What about selling the Western lands? To be sold, they first needed properly to be surveyed. In 1785, surveyors in the Western territories reported to Congress that two of the Amerindian tribes had politely let it be known that if they were to proceed in their assigned task they would be “made prisoners, or killed and Scalped.” In its compassion, and perhaps in view of their uneasy fiscal relations with the army, Congress relented. Further, “the western lands proved to be worth little in the 1780s.” Supply exceeded demand, demand having slackened considerably in view of Indian hostility. Congress did sell some five million acres by 1787, garnering some $760,000. Given the $50 million federal debt, this was unimpressive.

Taxation by Congress proved equally disagreeable to American democrats, who “firmly believed that granting the Confederation taxation powers would lead inevitably to the creation of a British-style aristocracy or monarchy, destroying republican freedom.” That is, solving the financial dilemma of the American national state by granting it the power to tax would destroy the American national regime. True, the slogan of the American Revolution had been ‘no taxation without representation’; true, Americans had won representation, republicanism, in that revolution; nonetheless, they still didn’t want to pay taxes. Redistribution of the tax burden “based purely on ability to pay was either politically unthinkable or unlikely to have succeeded politically.”  In the end, states did pay about one-third of the national war debt, but any more was politically, though not financially, impossible.

Several attempts to empower Congress to impose taxes also failed. Opponents deprecated such measures on both ‘regime’ and ‘statist’ grounds, despite support from such luminaries as George Washington, James Madison, and Robert Morris. For most of the 1780s, the argument that Congressional power to enact an impost “was exactly the same kind of claim made by the British government before the revolution to authorize it to tax Americans.” Even the implication “that Congress had inherent tax powers” was too much for opponents to countenance. This notwithstanding, eight states soon agreed to an import tax, but to no more than that. Farmers, especially, had no interest in helping to fund the national debt, since their markets were local, not international, and good relations with foreigners meant nothing to them. “Many Americans” also “feared that if Congress became more powerful, it might seek to control the states in the interest of an aristocratic elite or a new king.” And, that being the case, “nothing in the Confederation’s structure required or even encouraged the states’ leaders to consider anything other than their individual states’ economic and political interests.”

European imperial interests further impeded Americans’ efforts at international trade. Adam Smith’s The Wealth of Nations, with its important arguments in favor of free trade among nations, had yet to make a favorable impression, and in any case Europe’s rulers “thought that American expansion would inevitably harm their economic and military interests.” Europeans considered free trade desirable within their empires, not among them, and typically tied their trade agreements to their military alliance structures. Without a strong federal government, American trade negotiators had no leverage with their counterparts. 

Britain remained America’s major trading partner, but it had closed the British West Indies to American trade before the close of the war and had no intention of reopening it. British imperialists and merchants backed Lord Sheffield, who advocated continued restriction of imperial trade to British ships manned by British sailors. Americans had no choice but to deal with Brits on British terms because only “British merchants would provide American merchants and consumers with credit” to purchase their manufactures; “other European countries would not provide credit.” Moreover, in Sheffield’s words, “the interests of the States are so opposite in matters of Commerce,” and Congress’s authority was so limited, that “no defensive precautions need to be feared on the part of the U.S.” France and Spain were no more cooperative.

Even in the United States itself, strong desire for international commerce was limited to the merchant classes along the Atlantic coast. Some Americans worried “that increased commerce would allow the spread of luxury, which they thought inevitably corrupted republican virtue”; some wanted protection for domestic manufactures; others imagined that trade caused “money scarcity”; still others thought merchants “greedy, unpatriotic monopolists.” By contrast, sturdy agrarian, republican yeomen seldom sold their crops to foreign countries. 

But the states faced a serious problem. Their own tariff restrictions on foreign imports didn’t hold. If one state imposed a restriction, “it was in the interest of other states to undercut it and reap the benefits of the trade lost by the state engaging in retaliation.” At the same time, they could not agree to strengthen the federal government since, as the Massachusetts delegation in Congress wrote to the state legislature, a stronger government “will afford lucrative Employments, civil & military.” “Such a government is an Aristocracy, which would require a standing Army & a numerous train of pensioners & placemen to prop & support its exalted Administration.” Such a regime change would in turn result in the breakup of the federal Union. 

The Annapolis Convention of September 1786 reached an agreement to hold a constitutional convention in Philadelphia the following year. But it was poorly attended; only three states’ delegations showed up, a grand total of a dozen men. Yet the convention, famously, occurred. Why did legislatures in such key states as Virginia and Massachusetts change their minds?

What united North and South in support of a convention was the set of controversies arising over western expansion, which both regions wanted to see, and neither could do effectively without a stronger federal government. In the 1780s, “the West was the scene of ruthless conflict and terrorism.” “More than half the landmass it covered was Indian territory,” and they killed some 1,500 white settlers “in Kentucky alone.” The settlers themselves were squatters on “Confederation lands”—i.e., lands also claimed by the Indians, in many if not all instances. Allied with the still-remaining British forces which hadn’t been evacuated from their western fortifications, the Iroquois Six Nations Confederacy was formidable, given the imbecility of the United States government. The states couldn’t help, either; in 1784, Virginia simply ceded its claims in the Ohio Valley. Under existing conditions, George Washington suspected, the western settlers might turn to secession, bringing in foreign powers as allies. He was correct. There were indeed separationist settlements among the settlers.

Spain and Britain were the principal foreigners in question. In the South, Spain regarded its Indian allies as “critical to maintaining their positions in Louisiana and Florida,” blocking American expansion. Spain signed a secret treaty with the Creeks, providing them with substantial armaments; it stopped short of sending troops, however. In the North, where Britain did have troops, the containment policy consisted of encouraging the formation of an Indian confederacy, which launched damaging raids on American settlers. They didn’t give arms to the Indians outright, but were happy to sell, as the Iroquois Confederacy made good revenue from the fur trade. “Britain’s and Spain’s western strategies were made less costly” because Congress refused to establish a standing army of any size. “As a result, the United States had only a few hundred troops in the West after 1783.”

Virginians couldn’t fund a war against Indians who attacked settlers in Kentucky, then part of Virginia. Without military support from the federal government, either, “many Virginians now decided that they wanted the Confederation strengthened so that it would have a military force to assist them against Native Americans, the British, and other possible enemies.” 

Meanwhile, the Spanish Empire closed the Mississippi River to American navigation. The Mississippi was critical to western settlement, as it provided an outlet for western farm produce, which could scarcely be transported over the Allegheny and Appalachian mountains in the days of dirt roads and Indian harassment. Like the Americans and the Indians, the Spanish claimed “much of the Mississippi River and surrounding territory at least north to the Ohio River.” They were willing to grant a trade treaty with the United States, but at the price of continuing the ban on American use of the Mississippi. The treaty John Jay negotiated with Spain conceded this point, but the Southern states particularly opposed it, Congressman Charles Pinckney of South Carolina going so far as to charge that it was part of a New England plot to retain its trade advantages. “Northern and southern states had reached an impasse not just on the treaty but on the viability of the Confederation itself. Both sides threatened secession.” The Northern state representatives in Congress decided to call the Southerners’ bluff, forcing the treaty through. This only sharpened secessionist intentions in the South, as many Southerners calculated that it would be better to relinquish the Union than to give up the prospect of navigation on the Mississippi.

What brought the Northern states’-righters to their senses was Shays’s Rebellion in western Massachusetts, a revolt of farmers against the merchants in Boston who controlled the state government. Although the rebellion failed, Massachusetts politicians saw that they might well need federal military assistance in suppressing future violence, and several other Northern states came around to the same realization. 

The rebellion centered on two grievances: debt relief and tax relief. Debt relief was tied to the states’ use of paper money. Because currency inflation enabled debtors to stiff creditors, who were wealthy, Benjamin Franklin regarded it as effectively “a tax imposed largely on the wealthy.” Creditors understandably thought otherwise, noting that non-payment of debts, or repayment in depreciated currency, gave them a strong incentive not to lend money at all in the future, which would paralyze the economy, including the farm economy. Politically, the struggle played out as a question of democracy. South Carolina politicians “justified their economic relief program on the basis that democratic majorities had power to take necessary actions to protect the public good”; the Speaker of the House of Representatives in Charleston intoned, “Vox Populi Vox Dei.” Popular sovereignty entitled legislatures to pass post facto laws altering debt contracts “to protect debtors, including by paying specie debts with paper money instead.” This “gave republican majorities unlimited power over both private and public contracts,” a power regarded as majority tyranny by creditors. Democrats defended their claim by condemning bankers as oligarchs, but even that staunch democrat, Thomas Paine, condemned such legislation as ruinous to republicanism because it violated the trust—quite literally the ‘credit’—upon which equal citizenship must rest.

Rhode Island, the most strongly democratic state in the country, illustrated Paine’s argument. “Some merchants left the state; others refused to sell good, including food, and closed their stores rather than accept paper money.” Other states were enraged when Rhode Island paid its debts to them in Rhode Island paper money, calling its citizens “cheats,” “traitors to the nation,” “armed plunderers of their neighbors,” democratic tyrants, and examples of “human depravity.” This edged more and more Americans toward demanding institutional reform of the federal government “to prevent interstate harms.” 

In Massachusetts, struggling farmers in the western part of the state demanded paper money, debt relief, and tax relief. The insurgency began in August 1786, and initially consisted of armed men blocking judges from the courts in which debt and tax cases were tried. Tax delinquencies in the state had already emptied the state treasury, and the state needed “to borrow money from merchants to fund an army.” Even that wasn’t enough. The government was powerless to act when the rebels moved against the federal arsenal in Springfield. United States Secretary of War Henry Knox persuaded Congress to reinforce it with federal troops, but Congress “had no money to pay its new troops,” either, and borrowed money against sale of western lands to fund the expedition—the very lands in which American rule was disputed by Indians, the Spanish, and the British. 

The crisis sobered the more sensible Massachusetts democrats. Men like Washington and Madison, Adams and Jefferson, needed no convincing on the matter of a new constitution. They already wanted one, and some regarded Shays’s Rebellion as relatively minor, in itself. But now many of the skeptics also relented. All agreed that Massachusetts’s inability to quell the rebellion without federal assistance portended ruin for both republican regimes in America and what Madison would soon call the “extended republic,” America’s federal republican empire. “There are combustibles in every state,” Washington warned. With most Massachusetts politicians now firmly on board, prospects for a constitutional convention brightened.

The Virginia legislature approved Madison’s convention proposal in November, citing the Confederation government’s “inability to pay the nation’s debts as the primary reason why reform was needed.” In the words of the legislature’s resolution, “the crisis has arrived at which the good people of America are to decide the solemn question, whether they will be wise and magnanimous efforts rea the just fruits of that Independence which they have so gloriously acquired.” Although U.S. indebtedness was the primary reason, for the first time the Virginians “imposed no limits on the reforms the convention could consider.” This “unmistakably signaled to other states Virginia’s acceptance that they would propose consideration of additional reforms such as Confederation commerce powers.” 

New York politicians remained divided, many unintimidated by Shays’s Rebellion. Governor George Clinton based his electoral coalition on the farmers, not the merchants of New York City. He and his ally, State Senator Abraham Yates, wanted to prohibit any reforms proposed by the convention “repugnant to or inconsistent with” the New York state constitution. This would have barred consideration of granting power of taxation to the federal government and in the end “would have prevented any agreement by the convention at all.” This attempt didn’t work; New York did send delegates to Philadelphia. But as late as the first presidential election under the 1787 Constitution, Clinton would continue to resist enhanced federal authority, effectively delaying the proceedings of New York’s electors until they could not arrive in time to cast their votes in the Electoral College. In the end, only Rhode Island boycotted the Convention.

Ever-prudent General Washington held back from committing to attend the Convention until he was convinced that it was serious. If it were not, the Union might dissolve and his reputation would suffer. He wanted to see that this would be no Annapolis Convention, with a small minority of states participating. He also wanted to see delegates chosen who were not ciphers but “capable men who were unfettered by restrictive state instructions intended to block the ‘radical cures’ that he thought were needed.” Satisfied that these criteria had been met, he headed north. “Washington’s overarching goal was to create a government that was a sovereign power capable of governing America as it expanded westward—a continental empire.” “Sovereign” meant the power to tax, a power that would enable the government “to pay its just debts and to support an army”—fundamentally, as Washington put it, to provide “the means of coercion in the Sovereign [that] will enforce obedience to the Ordinances of a General Government; without which, everything else fails.”

Van Cleve concludes that state politicians came to the same conclusion for different reasons, whether it was fear of domestic insurrection, the need to defend settlers from Indian attacks, the threat of the containment strategies enacted by Britain and Spain, indignation at the failure to repay debts, or concerns about economic calamity. The delegates to the Convention “took very large political risks not out of selfish class interest, and not just from perceived necessity, but from objective necessity.” To secure the safety and happiness of the people—the just purpose of any government, according to the Declaration of Independence—a better-designed federal government was simply indispensable. “The inescapable reality was that the United States existed in an imperial world. It would either maintain” what Washington called its “foederal dignity,” by “strengthening its national government or it would inevitably face dissolution followed by eventual European imperial takeover or civil war.” Or both, in either sequence.