cheese it, the cops!

i often hear people ridiculing the pretensions of the tea party to represent the position of the founders. well, this is an extremely complex question! if the assertion is that we are a 'christian nation,' for example, i'd point out that most of the founders were enlightenment-style religious skeptics of various sorts: deists and unitarians, for example. on the other hand, the basic set of values derives from protestantism (as well as ancient republicanism). cf. roger williams, and also the role of the protestant churches throughout the 18th century in agitating for freedom of conscience and against tyranny.  the extent to which locke was a sincere believer is too often overlooked, and his ideas are inconceivable without radical protestantism.

the tea party, i believe, is profoundly divided on defense and security-state-type issues. but i will note that many of the founders opposed nothing more vigorously than a 'standing army.' we have come a long long way since then in this and many other areas, and the scope of federal power is exponentially greater than any of the major figures, with the possible exception of hamilton (a constitutional monarchist) could have envisioned. i can see why the individual mandate to buy health insurance makes sense and solves a problem. i also think it's clearly unconstitutional and will be found so. and the idea that the patriot act is consistent with our form of government is baldly ludicrous.

and we might remind ourselves of a few simple, obvious facts.

(1) the american revolution was to a large extent a tax revolt. the revolutionaries saw excessive or arbitrary taxation as the very essence of tyranny.

(2) the tradition of the founding is a tradition based around individual rights, both a radical protestant individualism and a more urbane or tempered lockean liberalism.

(3) though the founders disagreed profoundly on the scope of federal power, almost all agreed that it should be carefully circumscribed, in contrast to the british and european monarchies. this is enshrined in statements in both the articles of confederation and the constitution (e.g. the tenth amendment).

i don't think the left, and for that matter the neo-cons, really care what the framers had in mind, and that truly they could give a shit about the constitution; the left actually prefers the swedish constitution, while security-state rightists prefer hosni's pharaoh-style system. but they can't just say that without abandoning the debate, and all in all i am glad the constitution still plays that role. however, we might also point out that the constitutional convention was called explicitly to invest the federal government with much more scope. and then point out that it would not have been ratified without further attempts at limitation, enshrined in the bill of rights. etc.

ok but if you're just giggling at the idea that tea-party types have a connection to our actual traditions, you might read or re-read jefferson's kentucky resolutions, opposing the alien and sedition acts. among the many benefits to be derived from a perusal of this document is that you get to try to read the longest english sentence ever composed (section 8).

 

 

the dramatic increase in tobacco taxes raises myriad issues. alexander hamilton thought that the federal government could be largely financed by taxes on alcohol, and said in federalist 12 that americans could never be made to pay taxes directly (har har).  then:

The single article of ardent spirits, under Federal regulation, might be made to furnish a considerable sum....and if it should tend to diminish the consumption of it, such an effect would be equally favorable to agriculture, to the economy, to the morals, and to the health of the society. There is perhaps nothing so much a subject of national extravagance, as these spirits.

the thing was an obsession with hamilton. before long, revenue collectors and still licensers in the western frontier were being tarred and feathered and run out of town on a rail. then there was a violent rebellion, put down personally by hamilton through military means. perhaps we are on the verge of a smokers' rebellion, though perhaps not. oddly, the argument is that the tax will reduce consumption, yet the children's healthcare initiative which it funds will be dependent on people's continuing consumption. really, the gov ought to get busy advertising smoking. the choice between smoking and children's health insurance is meant to put opponents in the extremely untenable position of favoring lung cancer for adults over the health of children. one thing i like about the whole deal: it makes children's health directly correlate with adult ill-health, or makes the health of children and adults vary inversely, which is excellent. meanwhile, the tax is a nice revenue-generator precisely because people are addicted; addictive substances are the perfect commodities, and also the perfect thing to tax, and gov gets into the lovely paradoxical position of discouraging and depending on addiction simultaneously, as in state governments in relation to gambling, for example. or state abc boards with booze.

the anti-federalist standpoint was that the united states should be an association of smaller republics. they drew the basic idea that a republican form of government could only be successful on a small geographical/population scale from aristotle (who argued in book 7 of the politics that a republic shouldn't be larger than you could see from a high point (the acropolis) with a citizenry that could all be in some sense acquainted with each other),and montesquieu, whose spirit of the laws was a bible to all parties in the constitutional debate.

this picture of decentralized, local democracy (also jefferson's ideal, though he hesitantly supported the constitution with the addition of a bill of rights) was an inspiring, decent vision. but it was profoundly polluted throughout american history by racism. the battle for states rights against federal incursion (for example in the nullification debate in the early 19th century and in the civil rights era) was little more at times than a battle for white supremacy, though of course its proponents took on the mantle of jefferson (well...) and claimed that they were acting in defense of liberty. no. they were acting in defense of oppression.

this has placed american advocates of decentralized government in a profoundly compromised position. in no treason, the great american advocate of liberty lysander spooner found himself obliged to support the right of the southern states to secede. but spooner was an extreme abolitionist, even participating in a plot to free john brown before the latter's execution. he supported both the right of secession and the legitimacy of force to free the slaves. spooner's libertarianism or extreme classical liberalism was perfectly consistent and connected by him beautifully to the american political tradition, but in the circumstances could not but have appeared incoherent.

john c. calhoun was one of the best and most interesting republican political theorists in history. the ideas are really interesting. but every point comes with the implied parenthesis: (and we'll be able to keep our slaves).

if you were talking "state's rights" in the 1960s, you were just a gross, disingenuous racist; if the federal government had supported segregation, you'd have happily been a fan of federal power against integrationist states.

this is just a terrible shame; it has discredited a vision of anti-federalist, small-republic political life. that ideal is nowhere in effect: the globe is covered by grasping mega-states. these have in turn been discredited by the world wars and the genocides and the cold war that raised the specter of nuclear annihilation. but no one noticed.

my secret agent dan comes up with federal spending as a percentage of gdp, obviously a better measure. it's also worth saying that the economy by 1940 was wildly more productive per capita than in 1795, obviously, so in a certain way this understates the presence of the government in individual lives dramatically. i think the 2010 number is likely to be way low, and that if you fairly put everything in the budget, that we're liable to see 30% in the next couple of years, and it will never go down. or it might end up much higher as the economy contracts. that's the kind of sea change in the role of the state that you can see here between 1910 and 1940, due to the new deal. but though the percentage can't triple, there is all the difference in the world between a gov that occupies 24% of gdp and one that takes 40. then you're no longer in anything like a capitalist economy, for one thing. whether or not that's a good thing will emerge. it has its advantages and disadvantages.

Budget as percent of GDP:

1795 -- 2.03 percent
1830 -- 1.69
1870 -- 4.27
1910 -- 2.49
1940 -- 9.92
1970 -- 18.84
1990 -- 21.59
2010 -- 23.84

i focus on the unlimited, coercive power to tax not because i support unbridled capitalism or because i'm some republican-party tax-cut obsessive. i focus on it because it is the very center, the sine qua non of state power: which it makes essentially limitless. you cannot have a vast military or police power without it. it is a necessary condition for the wars and genocides of the twentieth and twenty-first centuries. if we end in nuclear conflagration or some bio-weapon disaster, coercive taxation will have been responsible for our extinction. it is the state.

the only "constitutional"-style remedy i can see would be to actually limit federal taxation to a certain percentage of incomes or gdp by constitutional amendment. but i suspect that a thousand roads to avoiding such limitations would be pursued, and i am suspicious anyway of the efficacy of what madison himself termed "parchment barriers." the soviet constitution was a very acme of liberty and democracy. nevertheless if you wanted actually to enshrine some practical barrier to tyranny, that'd be it.

one might, alternatively, constitutionally cap spending, which would also limit debt. hamilton was an enthusiast for government debt: an interesting position.

within the constitutional design, the only checks on federal power as a whole are state governments and the responsiveness of elected officials to the people through elections. now in fact the electoral system has been further democratized. the original document had senators appointed by state legislatures. the system of electors for the presidency which persists vestigially was seriously meant as an attenuation of popular will.

the main objection of the anti-federalists was that the sovereignty of state governments would be destroyed under the new constitution. many of the anti-federalists were state officials, including people such as clinton. to a significant extent their fears have been realized, through many many struggles including the civil war. the stimulus package is one site of obvious state dependency on the federal government.as many anti-feds realized would happen, states must come to the feds, hat in hand.

the power of elections is real, even if attenuated constantly by the advantages of incumbency, the two-party system, and other factors. but it was the unlimited power to tax that was fatal, and was the center of hamilton's conception and ambition (embodied, as the antis saw, in the "sweeping clause": "The Congress shall have Power - To make all Laws which shall be necessary and proper for carrying into Execution the foregoing powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof"). in federalist 23 - the most problematic of them all - hamilton argues that it follows trivially that if you give the government certain powers, it must be able to obtain the resources to exercise those powers, without limitation. that would be a good moment to intervene in the federalist argument, and i keep thinking that madison might have suddenly gotten squeamish right there. he did not, however, jump ship.

the unlimited power to tax was also, as the anti-federalists said over and over, incredibly ironic, insofar as the revolution was a tax revolt, and held the unlimited power to tax to be the acme of tyranny.

"brutus" 6 (new york journal, december 27, 1787):

This power, exercised without limitation, will introduce itself into every comer of the city, and country — It will wait upon the ladies at their toilett, and will not leave them in any of their domestic concerns; it will accompany them to the ball, the play, and the assembly; it will go with them when they visit, and will, on all occasions, sit beside them in their carriages, nor will it desert them even at church; it will enter the house of every gentleman, watch over his cellar, wait upon his cook in the kitchen, follow the servants into the parlour, preside over the table, and note down all he eats or drinks; it will attend him to his bed-chamber, and watch him while he sleeps; it will take cognizance of the professional man in his office, or his study; it will watch the merchant in the counting-house, or in his store; it will follow the mechanic to his shop, and in his work, and will haunt him in his family, and in his bed; it will be a constant companion of the industrious farmer in all his labour, it will be with him in the house, and in the field, observe the toil of his hands, and the sweat of his brow; it will penetrate into the most obscure cottage; and finally, it will light upon the head of every person in the United States. To all these different classes of people, and in all these circumstances, in which it will attend them, the language in which it will address them, will be GIVE! GIVE!

total federal spending:
1795: $7.7 million
1830: $17.1 million
1870: $330.7 million
1910: $830.9 million
1940: $10,061 million
1970: $195,649 million
1990: $1,253,130 million
2010: $3,552,000 million

source

"brutus" (robert yates?)(new york journal, oct 18, 1787): "But remember, when the people, once part with power, they can seldom or never resume it again but by force. Many instances can be produced in which the people have voluntarily increased the power of their rulers; but few, if any, in which rulers have willingly abridged their authority."

"cato"  (possibly ny governor george "atomic dog" clinton, new york journal, sep 27 1787): [if you ratify the proposed constitution] "the ambitious and despotic will entrap you in their toils, and bind you with the cord of power from which you, and your posterity, may never be freed."

actually, i'd sort of like to write a new set of anti-federalist papers, and perhaps i will someday.your standard-issue american historian (like, say, cass sunstein in this week's nyrb), of course confirms the inevitable genius of the  american republic, etc. but it's hard not to see that the antis have had their fears borne out to a great extent.

the incredibly elaborate checks and balances suggested by madison and hamilton - not only tripartite branches, but bicameral legislature and a balance between state and federal authority - is all very well. but i suggest to you that it is overwhelmed by the overall concentration of government power constituted by the founding document. the size and scope of power of the federal government has, roughly, increased in every decade since the constitution was ratified. if you had told madison that the state would be absorbing 30% of gdp, he'd be flummoxed, i believe

so you balance various powers against one another. but you explicitly constitute an unlimited power to tax, to take on debt, and, as soon as hamilton getsd his hands on the machinery, a monopoly of currency. now the various branches etc indeed check each other's powers a bit, but all have a motive to increase the power and scope of the federal government as a whole. all have a motive essentially to consolidate the power of the people who, at that moment, constitute the government. all are corrupted - as madison famously argued they would not be - by faction: lobbying, contributions, the desire for personal power and wealth. etc etc.

the sheer fact is that even though there are internal divisions in the government that serve to check one another a bit, there is no effective check on federal power overall to achieve a dependent population, engage in foreign adventures, surveil the citizenry, regulate communications, enrich itself, control the economy to the advantage of faction, and so on and on. the branches have some motivation and obligation to check one another's power. but the motivation they all have together as one big thing, the fact that they all grow together if at all, swamps every other motivation. in other words: the antifederalists were so, so right.

almost any way the legislative and executive branches spend money is in their own interests: it increases the power of the incumbents, the dependence of people on them, and their ability to create debts to themselves. hence taxation and spending and deficit spending will, other things being equal, always increase, and with them the size and power of the central government and the unresposiveness of it to democratic procedures: the power of incumbency etc. and also, its corruption. this has overwhelmed every constitutional check, as patrick henry or "brutus" predicted.

i'm teaching the debate over the ratification of the constitution right now. a few observations. the federalist papers, by madison and hamilton, are probably the greatest bits of advocacy journalism ever printed: it's unimaginable that these were, like, newspaper op-ed pieces. the writing is beautifully clear but also subtle, the arguments extremely convincing. it is to be regretted that the anti-federalists had no one comparable. reading the speeches of patrick henry, or luther martin etc is reading disorganized blowhards, though there were important points. regrettable too is that the objections were not more fundamental, and that they were above all concerned with preservation of state sovereignty, partly for various nefarious purposes such as preservation of the slave trade and dominance of westward expansion/speculation. henry gets up in front of the virginia legislature and declares that the thing should begin "we the states" instead of "we the people." this was an amazing opportunity to make a world, as it were, and had there been intellects and pens of the caliber of madison and hamilton on the other side, it might have had a better, a freer, outcome (though the antis must be credited with the bill of rights, and deserve much gratitude for that).

probably the best anti-federalist material is from "centinel" (samuel bryan of pennsylvania) and, especially, "brutus" (robert yates? of new york). the library of america two-volume set the debate on the constitution is quite something.

the volume i'm actually teaching has an extremely solid intro, excellent selection from the federalist. i feel the anti-fed selection could be sharper. much more doable than the sprawling volumes above.