The People's Welfare: Law and Regulation in Nineteenth-Century America.

Author:Rutten, Andrew
 
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Americans treat the Founders, those who created their constitutions, the way that junior-high-school boys treat girls. Just as the boys are obsessed by the girls, we are obsessed by the Founders. Even those who reject a strict Borkean originalism continue to grant the Founders some authority. At the same time, like the boys, most of us find the objects of our obsession threatening. We wonder, "What if they really aren't on our side?" To resolve our ambivalence, we, like the boys, simply avoid the objects of our desire. Instead of digging deep into history to find out what the Founders were really up to, we console ourselves with comfortable myths that give us the Founders we want. As a result, we face a paradox of our own creation: while we claim to respect the Founders, we remain densely ignorant of them. Thus, we cannot give deep or satisfying answers to such questions as: What did the Founders really want? Why did they choose the constitutions they did? How did those constitutions evolve over time? What do they tell us about today's issues?

To answer these questions, we need to do more than simply learn more facts. We also need to come to grips with the peculiar roles of politics in the Founding. First, and most obvious, politics was the subject of the Founding: whatever else they did, the Founders chose the basic rules of our polity. Second, and less obvious, politics was the method of the Founding: whatever else they were, the Founders were politicians, working hard to find a set of rules that would attract and retain the support of a winning coalition. Thus, to understand the Founders, we need to ask both what political problems they were trying to solve and how they reconciled their differences to arrive at an acceptable solution. Only then can we make sense of what they said and wrote and did.

Two recent books on the constitutions of the Founding era show the importance of both roles of politics in the history of that period. Marc Kruman's Between Authority and Liberty. State Constitution Making in Revolutionary America (1997) and William Novak's The People's Welfare. Law and Regulation in Nineteenth-Century America (1996) complement each other in many ways. Both are about state constitutions, documents that our post-New Deal understanding of federalism has led most of us to ignore. The books fit together chronologically, giving the reader a view of almost a century. Kruman deals with the very first constitutions that Americans wrote, the state constitutions of the revolutionary period. Novak examines how these constitutions fared during the early nineteenth century.

Both writers are explicitly revisionist, arguing against what they take to be the party lines on these topics. Kruman argues that, contrary to Gordon Wood and others, Americans did not wait until 1787 to use the constitutional tools that we associate with the Founding--separation of powers, checks and balances, and bills of rights-to limit the abuse of power by elected officials. As his title suggests, he argues that the earliest Americans wanted a government with enough authority to carry out its tasks but so limited that it would not needlessly intrude on liberty. Novak argues that, contrary to many modern liberals, early America was full of regulations.(1) That regulation was justified by a coherent and widely accepted constitutional theory, which he calls the theory of the well-ordered society.

Despite the books' obvious complementarities, however, the careful reader will notice that their arguments do not really fit together. Kruman's story--in which constitutions are written to empower and limit government--is incompatible with Novak's story--in which constitutions simply reflect the notion of a well-ordered society. Underlying their different accounts is a deep disagreement over the nature of constitutional politics during this period. Kruman's Founders are sophisticated and experienced realists, who are trying to bootstrap themselves into limited popular government, using democracy to create limits on democracy. In Novak's world, the concerns that animate Kruman's constitution makers have simply disappeared, as judges and others allow local officials to exercise their power unchecked. In contrast to Kruman's skeptics, Novak's characters seem naive and unworldly, as if they were living in a high-school civics text, where governments are benign and paternalistic.

Had Novak taken a broader view--had he not concentrated on traditional regulatory activities--he would have found plenty of people who had the same worries about politics that Kruman found so pervasive in the revolutionary period. Granted, people did not worry much about regulations of the sort that Novak discusses; after all, these were jobs that Americans had long entrusted to their governments. However, even these traditional activities were hedged about by a variety of constitutional requirements. The most important of these was that American governments had to rule through laws, general rules that applied to the future and served the public good. And when these same governments moved to develop new sorts of regulations, their actions were subject to other, stricter requirements. Often the new regulatory actions were upheld, but often they were not. By focusing on a small (but important) piece of the constitutional world, Novak misses these complexities.

What Did Americans Want, and When Did They Want It?

Kruman argues that from the very beginning, Americans wanted to create a limited popular government; that is, they wanted a government vigorous enough to do its job but controlled enough not to abuse its power. To figure out how to achieve that goal in a democratic, independent America, the authors of the first constitutions drew on a theory of politics familiar to readers of this journal. In that theory, constitutions are treated as incentive systems that shape political decisions by molding the incentives and opportunities of everyone from voters to politicians to judges. Reduced to a bumper sticker, this theory commands us: "Get the incentives right!"

To compare the efficacy of various constitutions, Americans began by examining the motives of their fellow citizens. From observation, they concluded that Americans were self-interested and diverse. Because they were self-interested, they would be willing to rench upon the rights of others if doing so benefited them; because they were diverse, they would often find such abuses beneficial. And because they lived in a democracy, they could violate rights whenever they could get a majority to join them.(2) To deal with these problems, Americans drew on their experience with the Imperial Constitution. From the British ideal of a mixed government, in which each branch represented a different class, they took the idea of separated powers supported by checks and balances, adapting it to a republic by giving each branch a different constituency. In place of the unwritten British constitution of custom and precedent, they substituted written constitutions. In those constitutions, they included bills of rights--statements of the rights of citizens--to force politicians to keep their eyes on the ball.

While most historians would agree with this account, Kruman thinks they flub the timing. FES colleagues, he says, believe that Americans did not develop these views until after almost a decade of experience with popular government. Under that view, the first constitution writers, in the middle of a war against an overburdening executive, wrote constitutions tilted toward legislatures. Their experience with these governments in turn taught Americans that legislatures, too, could abuse their power. In this account, the genius of the Founders lay in their recognition of the need to tame both branches of government.

Kruman argues that the American suspicion of popular governments began at the end of the Seven Years' War and developed over the course of the crisis that led to independence. For him, as for historians such as Jack Greene (1994), John Phillip Reid (1995), and others, the crisis leading up to independence was the first American constitutional crisis. At that time the colonists began to hammer out a distinctly American theory of constitutional government. Armed with this experience, Americans went into the confederation period ready, willing, and able to write constitutions that we would recognize.

To prove his claim, Kruman dives into the historical record and brings back a host of treasures. In addition to the constitutions themselves, Kruman offers quotations from a variety of sources to convince us that he has not simply imagined his conclusions. The heart of the book is a series of chapters examining the early treatment of bills of rights, representation, suffrage, separation of powers, and checks and balances. Over and over, Kruman shows that soon after 1776, Americans had moved beyond the simple analysis often imputed to them.

To take one example, many historians have concluded that the early constitution writers did not fully grasp the distinction between a statute and a constitution. In this view, the Americans were still relying on the British model of legislative supremacy, in which the constitution was whatever Parliament said it was. Not until later did the Americans realize that this approach did little to constrain legislatures, because what one legislature can pass, another can repeal.

Kruman shows that this claim simply is not true. Contrary to the received wisdom, the early state constitution makers understood clearly the difference between a statute and a constitution. However, with war imminent, calling a convention was a luxury that few could afford. To cope with these conditions, the states often empowered the colonial assembly to draft a new constitution. When they did so, they made dear that it was sitting as a convention, not a legislature. The book is full of such examples, in which...

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