The interpretation of constitutional history, or Charles Beard becomes a fortuneteller (with an emphasis on free expression).

• Author: Feldman, Stephen M.
• Position: Centennial of Charles Beard's 'Economic Interpretation of the Constitution'

In An Economic Interpretation of the Constitution of the United States, published in 1913, Charles A. Beard argued that the framers and contemporaneous supporters of ratification advocated for and defended the Constitution because of their economic interests. (1) "The point is," he wrote, "that the direct, impelling motive ... was the economic advantages which the beneficiaries expected would accrue to themselves first, from their action." (2) The bulk of the book focused on the framers, with Beard marshaling empirical evidence that ostensibly detailed their personal property holdings. (3) From this evidence, Beard claimed to show that the framers represented "distinct groups whose economic interests they understood and felt in concrete, definite form through their own personal experience with identical property rights." (4)

Beard acknowledged that numerous framers had proclaimed they were motivated by a virtuous desire to promote the "general welfare" or the "public good"--or as it is frequently called, the common good. (5) Yet, Beard dismissed the notion of the common good as a "vague thing." (6) He explained that invocation of "the general good is a passive force, and unless we know who are the several individuals that benefit in its name, it has no meaning." (7) In other words, pursuit of the common good was not so much a motive as a veneer, which obscured economic interests. (8)

A century after the publication of An Economic Interpretation, one can fairly conclude both that the book was "seminal" and that subsequent scholarship has "undermined Beard's thesis." (9) When An Economic Interpretation first appeared, most reviewers greeted it with hostility." (10) Over the next decades, though, it became increasingly influential until, by the 1940s, it had become the "prevailing orthodoxy." (11) In the 1950s, Beard's fortune swung again: Critics and defenders engaged in a well-publicized battle. (12) Many of Beard's critics, though, continued to follow an economic approach to the framing, even as they disagreed with the details of Beard's argument. (13) The nature of framing historiography, however, started to change dramatically in the late 1960s. Several historians argued persuasively that one could better understand the framing (and the Revolution) by focusing on political ideology rather than economic interests. (14) As this more ideological approach became ascendant, one of its most prominent practitioners, Gordon Wood, unceremoniously pronounced Beard's thesis to be "undeniably dead." (15) And in fact, while several historians have chipped away at the edifice of the ideological approach, with its emphasis on civic republicanism, (16) it still dominates the skyline of historical scholarship on the framing. (17)

Thus, the current historical consensus is that Beard's thrust-his focus on the framers as creating a capitalist order primarily to protect their own interests--is incorrect. In this essay, I largely agree with this critical assessment of Beard's historical approach, though with qualifications. One might say that Wood exaggerated Beard's demise: A consideration of economic interests can help illuminate the ideology of the founding. To be sure, Beard missed most of the story of the founding, but his economic approach can still add an important element to the discussion. Plus, as I explain, despite Beard's historical errors, he has become a prescient fortuneteller. His economic depiction of the Constitution does not closely fit the framing, but it uncannily fits the Roberts Court's current interpretation of our constitutional order. Beard might have gotten the history wrong, but he got the future right.

Part I summarizes an ideological approach while also explaining how a consideration of economic interests illuminates the founding. It emphasizes how the framers conceived of citizenship and government in republican democratic terms, even though they were strongly concerned with the protection of individual rights, especially property rights. (18) Ultimately, the framers sought balance between government power and economic interests: They sought to enhance the protection of property rights, but they simultaneously empowered government to act for the common good, even at the expense of property. Part I concludes with a discussion of free expression under republican democracy and an assessment of Beard's interpretation of the framing. Part II describes how social and cultural forces led to the collapse of republican democracy and the rise of pluralist democracy in the early twentieth century. This transition, as explained, changed the conception of free expression. The Part concludes by examining how pluralist democracy continued to evolve after World War II. Part III focuses on the Roberts Court and its landmark First Amendment decision, Citizens United v. Federal Election Commission. (19) This Part underscores the overlap between Beard's thesis and the Roberts Court's interpretation of the framing and the Constitution. Part IV, the Conclusion, suggests how politics might have influenced both Beard's and the Roberts Court's interpretations of constitutional history.

1. THE FOUNDERS AND REPUBLICAN DEMOCRACY

   From the founding until the early twentieth century, the nation operated as a republican democratic regime. (20) Under republican democracy, citizens and elected officials were supposed to be virtuous: in the political realm, they were to pursue the common good or public welfare rather than their own "private and partial interests." (21) When citizens or officials used governmental institutions to pursue their own interests, then the government was corrupt. Groups of like-minded citizens who corrupted the government were deemed factions, whether constituted by a majority or a minority of citizens. In Federalist Number 10, James Madison described a faction as "a number of citizens, whether amounting to a majority or a minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community." (22) By definition, then, a factionally controlled government pursues "partial interests" (23) or "private passions" (24) rather than the common good.

   Founding-era Americans believed they were especially well-suited for this form of government. An agrarian economy where many white Protestant men were freeholders engendered a rough material equality, unknown elsewhere in the world, and this material equality in turn engendered a culture of political equality. (25) "I think our governments will remain virtuous for many centuries," Thomas Jefferson wrote in 1787, "as long as they are chiefly agricultural; and this will be as long as there shall be vacant lands in any part of America." (26) Sixteen years later, St. George Tucker echoed Jefferson: "[S]cenes of violence, tumult, and commotion," which had destroyed earlier republics, Tucker explained, "can never be apprehended [in America], whilst we remain, as at present, an agricultural people, dispersed over an immense territory." (27) 28 Moreover, with an overwhelming number of Americans being committed to Protestantism and tracing their ancestral roots to Western or Northern Europe, the people seemed sufficiently homogeneous to join together in the pursuit of the common good. (28)

   Two aspects of republican democratic government, as understood by the founders, are worth underscoring. First, although not all Americans were white Protestant Anglo-Saxons, political exclusion preserved at least a surface homogeneity. According to republican democratic theory, non-virtuous individuals (or non-virtuous societal groups) would be unwilling to forgo the pursuit of their own private interests. Instead, they would form factions bent on corruption. (29) Significantly, then, an alleged lack of civic virtue could supposedly justify the forced exclusion of a group from the polity. On this pretext, African Americans, Irish-Catholic immigrants, women, and other peripheral groups were precluded from participating in republican democracy for much of American history. (30) Thus, although the concepts of virtue and the common good typically remained nebulous in the abstract, they closely mirrored mainstream white Protestant male values and interests in concrete political (and judicial) contexts.

   Second, the framers believed that the state governments of the 1780s provided valuable experiences in the drafting of constitutions. Most important, the state constitutions had been too optimistic: They had conceptualized American citizens as predominantly virtuous. Virtue alone supposedly would sustain the republican state governments. Experience had deflated that optimism. That was the lesson of Shays's Rebellion in Massachusetts, where indebted landowners sought governmental refuge for money owed. John Jay wrote to George Washington: "Private rage for property suppresses public considerations, and personal rather than national interests have become the great objects of attention. Representative bodies will ever be faithful copies of their originals, and generally exhibit a checkered assemblage of virtue and vice, of abilities and weakness." (31) All too often, it seemed, factional groups used the institutions of government to satisfy their own interests. (32)

   Consequently, the framers believed that, in constructing a republican government, they needed to devote greater attention to protecting individual rights, especially property rights. (33) Before the Revolution, Americans understood the need to protect individual rights from the British monarchy. With the repudiation of the monarchy, however, the protection of rights from the government seemed less urgent. After all, in the American (state) republics, the people were the source of government, and the government represented the people. Could the people threaten their own rights? Surprisingly, the...