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A Government Based on Representations

Published online by Cambridge University Press:  16 December 2008

Suzette Hemberger
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In the course of the debates over the ratification of the U.S. Constitution, no one disputed that the people were sovereign, but how this sovereignty was to be embodied proved quite controversial. The post-Revolutionary generation faced the challenge of creating a republican form of government from an oppositional popular politics. Federalists responded by claiming for their Constitution, and for the national government it created, a monopoly on the legitimate representation of the people. They championed the official over the popular and invoked the idea of the nation to authorize this transfer of authority. It was a transfer that would not go unchallenged, and, as a result, the constitutional politics of the early republic repeatedly posed the question of whether popular sovereignty could survive the transformation of the demos into a nation.

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Studies in American Political Development , Volume 10 , Issue 2 , Fall 1996 , pp. 289 - 332
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Copyright © Cambridge University Press 1996

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References

1. Although the premise that constitutions construct (rather than simply constrain) politics is an increasingly common one among political scientists, most scholars who proceed from this assumption are primarily interested in questions of governmental power and/or institutional design. See, e.g., Holmes, Stephen, “Gag Rules or the Politics of Omission” and “Precommitment and the Paradox of Democracy,” in Constitutionalism and Democracy, ed. Elster, Jon and Slagstad, Rune, (Cambridge: Cambridge University Press, 1988), 19–58, 195–240Google Scholar; Ackerman, Bruce, We the People: Foundations (Cambridge: Harvard University Press, 1991)Google Scholar; Elkin, Stephen L. and Soltan, Karol Edward, eds., A New Constitutionalism: Designing Political Institutions for a Good Society (Chicago: University of Chicago Press, 1993)Google Scholar. By contrast, few commentators have considered the ways in which the Constitution of 1787 constructed the American citizen. For important first steps in this direction, see Smith-Rosenberg, Carroll, “Dis-Covering the Subject of the ‘Great Constitutional Discussion,’ 1786–89,” The Journal of American History 79, no. 3 (12 1992): 841–73Google Scholar; Wald, Priscilla, “Terms of Assimilation: Legislating Subjectivity in the Emerging Nation,” in Cultures of U.S. Imperialism, ed. Kaplan, Amy and Pease, Donald E. (Durham, NC: Duke University Press, 1993), 59–84Google Scholar; ”The Constitution of the People”: Reflections on Citizens and Civil Society, ed. Calvert, Robert E. (Lawrence: University Press of Kansas, 1991)Google Scholar, esp. the introduction by Wilson Carey Mc-Williams.

2. See, e.g., Wilson, James, speech to the Pennsylvania ratifying convention, 11 28, 1787, in The Documentary History of the Ratification of the Constitution, ed. Kaminski, John P. and Saladino, Gaspare J. (Madison: The State Historical Society of Wisconsin, 1979–) (hereafter, DHRC), IIGoogle Scholar (”[T]he leading principle in politics, and that which pervades the American constitutions, is, that the supreme power resides in the people; this Constitution … opens with a solemn and practical recognition of that principle: ‘WE THE PEOPLE OF THE UNITED STATES, in order to form a more perfect union, establish justice, & c. DO ORDAIN AND ESTABLISH this constitution, for the United States of America.’” “This single sentence in the Preamble is tantamount to a volume and contains the essence of all the bills of rights that have been or can be devised; for it establishes, at once, that in the great article of government, the people have a right to do what they please.”); Douglass, Frederick, “The Dred Scott Decision,” in The Life and Writings of Frederick Douglass, ed. Foner, Philip S. (New York: International Publishers, 1950), II:419Google Scholar. (“‘We, the people’ – not we, the white people – not we, the citizens or the legal voters – not we, the privileged class, and excluding all other classes but we, the people; not we, the horses and cattle, but we the people – the men and women, the human inhabitants of the United States, do ordain and establish this Constitution, & c.”)

3. Prior to the drafting of the Constitution, “the people of the United States” did not officially exist. The Articles of Confederation were an agreement among states. The Continental Congress was composed of representatives of the states and its legislation addressed itself to the state governments. The Articles speak not of “the People of the United States,” but of “the people of the different states.” The Declaration of Independence defines the circumstances under which “it becomes necessary for one people to dissolve the political bands which have connected them with another” and claims to be written “in the Name, and by Authority of the good people of these Colonies” but it then declares that the colonies should be “Free and Independent States.”

4. See Federalist 10 and 14, where he argued that the principal distinction between democracy and republicanism was that in the former the people govern themselves directly, whereas in the latter the people are governed by their (directly or indirectly) elected representatives (DHRC, XIV: 179, 313). Pocock, J.G.A. has called this definition a “drastic revision of accepted language” (“States, Republics, and Empires: The American Founding in Early Modern Perspective,” in Conceptual Change and the Constitution, ed. Ball, Terence and Pocock, J.G.A.. (Lawrence: University Press of Kansas, 1988), 66Google Scholar.

5. Wilson, James, speech to the Pennsylvania ratifying convention, 11 28, 1787, DHRC, 11:402Google Scholar. See also Maclaine, Archibald, speech to the North Carolina ratifying convention, 07 25, 1788, in The Debates of the Several State Conventions, ed. Elliot, Jonathan (Philadelphia: Lippincott, 1881) (hereafter, Elliot), IVGoogle Scholar; Thomas Dawes, speech to the Massachusetts ratifying convention, January 14, 1788, Elliot, 11:5–6.

6. There is no record of any discussion of this substitution in the Philadelphia Convention. The revision was made by the Committee on Style and was not remarked upon during the convention's deliberations on the committee's report. Judging from extant notes, the prior decision to enumerate the states was also made in committee, by the Committee on Detail. It, too, apparently went unremarked upon the convention floor. The fact that neither formulation provoked any (recorded) controversy suggests that, at the time of the convention, most of the framers saw this provision simply as a practical solution to the problem of nonunanimous ratification rather than as a slogan fraught with ideological significance. (By contrast, provisions that referred to the government of the United States as either “federal” or “national” provoked so much controversy within the convention that they were eventually eliminated.) Farrand, Max, ed., The Records of the Federal Convention, rev. ed. (New Haven, CT: Yale University Press, 1987) (hereafter Farrand), I:30, 242, 323, 335–36Google Scholar.

7. And, indeed, within two decades of the adoption of the Constitution, the area of the United States had doubled. By midcentury, the nation had tripled in size. Meinig, D. W., The Shaping of America: A Geographical Perspective on 500 Years of History, vol. II: Continental America, 1800–67 (New Haven, CT: Yale University Press, 1994), 3Google Scholar.

8. [Arthur Lee], Cincinnatus V: To Wilson, JamesEsquire, , New York Journal, 11 29, 1787, DHRC, XIV:307Google Scholar. See also Samuel Adams, letter to Lee, Richard Henry, 12 3, 1787, DHRC, XIV:333Google Scholar; “The Dissent of the Minority of the Pennsylvania Convention,” Packet, Pennsylvania, 12 18, 1787, DHRC, XV:25Google Scholar.

9. Both federalists and antifederalists agreed that the proposed Constitution would eliminate the state governments' mediation of the relationship between the national government and individual citizens. Publius argued that “[t]he great and radical vice in the construction of the existing Confederation is in the principle of LEGISLATION for STATES or GOVERNMENTS in the CORPORATE or COLLECTIVE CAPACITIES and as contradistinguished from the INDIVIDUALS of whom they consist” and contended that the national government would never have effective power until this “first principle” of the Confederation was abandoned. [Hamilton, Alexander], Publius, : The Federalist 15, New York Independent Journal, 12 1, 1787, DHRC, XIV:327Google Scholar. Federal Farmer considered such mediation the essence of federalism:

A federal republic in itself supposes state or local governments to exist, as the body or props, on which the federal head rests. … The quantity of power the union must possess is one thing, the mode of exercising the powers given, is quite a different consideration; and it is the mode of exercising them, that makes one of the essential distinctions between one entire or consolidated government, and a federal republic; that is, however the government may be organized, if the laws of the union, in most important concerns, as in levying and collecting taxes, raising troops, &c. operate immediately upon the persons and property of individuals, and not on states, extend to organizing the militia, &c. the government, as to its administration, as to making and executing laws, is not federal, but consolidated.

Federal Farmer: An Additional Number of Letters to the Republican XVII, New York, 05 2, 1788, DHRC, XVII:351Google Scholar.

10. See, for example, A Plebeian's comment:

Previous to the meeting of the convention, the subject of a new form of government had been little thought of, and scarcely written upon at all. It is true, it was the general opinion, that some alterations were requisite in the federal system. This subject had been contemplated by almost every thinking man in the union. It had been the subject of many well-written essays, and was the anxious wish of every true friend to America. But it never was in the contemplation of one in a thousand of those who had reflected on the matter, to have an entire change in the nature of our federal government – to alter it from a confederation of states, to that of one entire government, which will swallow up that of the individual states. I will venture to say, that the idea of a government similar to the one proposed, never entered the mind of the legislatures who appointed the convention, and of but very few of the members who composed it, until they had assembled and heard it proposed in that body: much less had the people any conception of such a plan until after it was promulgated.

A Plebeian: An Address to the People of the State of New York, 04 17, 1788, DHRC, XVII:155Google Scholar.

11. Federal Farmer: Letters to the Republican I, 11 8, 1787, DHRC, XIV:22Google Scholar.

12. Martin, Luther, Genuine Information I, Baltimore Maryland Gazette, 12 28, 1787, DHRC, XV:151Google Scholar. For a similar complaint, see Edmund Randolph, letter to Smith, M., Thurston, Charles M., Briggs, John H., and Page, Mann Jr, Esquires, 12 10, 1787, DHRC, XV:131Google Scholar.

13. Farrand, 1:215, 220. See also 1:253 (Wilson) and 1:529 (Morris).

14. Madison, in particular, took great pains to solicit the participation of the most influential politicians in the Philadelphia Convention. In a letter to Edmund Randolph, Madison contended that

[h]ad the Constitution been framed & recommended by an obscure individual, instead of the body possessing public respect & confidence, there can not be a doubt, that altho' it would have stood in the identical words, it would have commanded little attention from most of those who now admire its wisdom.

Madison to Randolph, , New York, 01 10, 1788, DHRC, XV:327Google Scholar. Washington was fiercely lobbied; his involvement was seen as crucial to the success of the project. Weeks after the Convention, Gouverneur Morris wrote Washington that

I have observed that your Name to the new Constitution has been of infinite Service. Indeed I am convinced that if you had not attended the Convention, and the same Paper had been handed out to the World, it would have met with a colder Reception, with fewer and weaker Advocates, and with more and more strenuous Opponents.

Morris to Washington, , Philadelphia, 10 30, 1787, DHRC, XIII:513Google Scholar.

Within both the Convention and Congress, supporters of the Constitution fought to preserve the appearance of unaminity. The decision that the document should be signed “by the unanimous consent of the states present” obscures the facts that some delegates who opposed the Constitution had left the Convention, and others who remained present refused to sign. Similarly, once the draft was sent to Congress, federalists lobbied for a unanimous statement. A majority of Congress would have recommended the adoption of the proposed Constitution, but the supporters of the Constitution were willing to sacrifice Congress's endorsement in order to achieve unanimity. They opted for a unanimous letter of transmittal that referred the document to the States but offered no opinion on its merits. As Washington confided to Madison:

I am better pleased that the proceedings of the Convention is handed from Congress by a unanimous vote (feeble as it is) than if it had appeared under stronger marks of approbation without it. – This apparent unanimity will have its effect. – Not everyone had opportunities to peep behind the curtain; and as the multitude often judge from externals, the appearance of unanimity in that body, on this occasn., will be of great importance. –

Washington to Madison, , Mount Vernon, VA, 10 10, 1787, DHRC, XIII:358Google Scholar.

15. An American, Herald, Boston American, 01 28, 1787, DHRC, XV:139Google Scholar. See also, Philadelphia Freeman's Journal, 10 10, 1787, DHRC, XIII:361Google Scholar; [George Clinton], , Cato II, New York Journal, 10 11, 1787, DHRC, XIII:369ffGoogle Scholar.

16. Farrand, I:123 (King); I:253 (Wilson); I:379 (Wilson); I:501 (Bedford, rejecting the argument, but also alluding to the frequency with which it had been made); II:89 (Randolph); II:478 (Morris). Within the Convention, the earliest justification for popular ratification was that it was necessary to ensure the supremacy of the national government over the state governments. Farrand, I:122–23, 126–27. But even at this stage of the Convention, James Wilson was already arguing that opposition to the plan would come from the state governments rather than from the people. Farrand, I:49, 133. The fullest recorded discussion of whether state legislatures or conventions should be given the power to ratify the Constitution took place on July 23, 1787. Farrand, II:88–94.

17. Joseph Taylor, speech to the North Carolina ratifying convention, July 24, 1788, Elliot, IV:24.

18. Letters from a Countryman from Dutchess County III, New York Journal, December 3, 1787, in The Complete Anti-Federalist, ed. Storing, Herbert J. (Chicago: University of Chicago Press, 1981) (hereafter, Storing), VI:57CrossRefGoogle Scholar.

19. Letters from a Countryman from Dutchess County IV and I, New York Journal, December 15, 1787, and November 21, 1787, Storing, VI:58, 51.

20. U.S. Constitution, Article I, Section 2: “The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.”

21. Jacksonians, rather than federalists, are usually credited with (or blamed for) the professionalization of American politics. But a comparison of the institutional structures created by the Constitution of 1787 with those embodied in the Articles of Confederation and the revolutionary state constitutions suggests that federalists systematically restructured the conditions of officeholding to make lifelong political careers possible, to attenuate the control that ordinary citizens would have over officials, and to subject officeholders to the supervision of their peers. In this sense, then, federalists laid the groundwork for professionalized politics. For a more thorough elaboration of this claim, see Hemberger, , “Creatures of the Constitution: The Federalist Constitution and the Shaping of American Politics,” Ph.D. dissertation, Princeton University, Department of Politics, 01 1994, chap. 1Google Scholar.

22. Brutus, III, New York Journal, 11 15, 1787, DHRC, XIV:122Google Scholar. Cf. Federal Farmer's definition of “a fair and equal representation” as one “in which the interests, feelings, opinions, and views of the people are collected, in such a manner as they would be were the people all assembled.” Additional Letters to the Republican VII, 05 2, 1788, DHRC, XVII:278Google Scholar.

23. Ibid.

24. Speech of January 15, 1788, Elliot, II:8–9.

25. [Madison, James?], Publius, : The Federalist 63, New York Independent Journal, 03 1, 1788, DHRC, XVI:294Google Scholar.

26. It is this point that most sharply distinguished the federalist theory of representation from Burke's conceptualization of virtual representation. Federalists agreed with Burke that representatives should exercise their own best judgment rather than accede to popular opinion and that each representative must pursue the national interest rather than the interests of a particular constituency. But Burke's theory of representation was grounded in a conception of the polity more akin to the antifederalists' vision than to that of the federalists. While Burke believed that a nation creates the constitution that is appropriate to it, the federalists had a more dialectic conception of the relationship between the nation and its government. Certainly, at some points, they seem to be suggesting that the nation should be constructed in such a way as to make the best kind of constitution viable.

27. [Madison, James], Publius, : The Federalist 10, New York Daily Advertiser, 11 22, 1787, DHRC, XIV:181Google Scholar. In his private correspondence, Madison was even more candid about the strategy at work here: “Divide et impera, the reprobated axiom of tyranny, is under certain qualifications, the only policy, by which a republic can be administered on just principles.” Letter to Jefferson, Thomas, New York, 10 24, 1787, DHRC, XIII:449Google Scholar.

28. See, e.g., Federal Farmer's argument that ideological differences among the states were not so great as the preclude the drafting of a national bill of rights. Letters to the Republican II, 11 8, 1787, DHRC, XIV:27Google Scholar.

29. [Clinton, George?], Cato, III, New York Journal, 10 25, 1787, DHRC, XIII:474Google Scholar.

30. The best version of the argument that rotation and recall are necessary for adequate representation is probably Federal Farmer, Additional Letters to the Republican XI, 05 2, 1788, DHRC, XVII:301–10Google Scholar.

31. A True Friend, Richmond, , 12 6, 1787, DHRC, XIV:376–77Google Scholar. Arch-federalist Noah Webster put a very different spin on the same phenomenon:

Some of the bills of rights in America declare, that the people have a right to meet together, and consult for the public safety; that their legislators are responsible to them; that they are servants & c. Such declarations give people in idea, that as individuals, or in town meetings, they have a power paramount to that of the Legislature. No wonder, that with such ideas, they attempt to resist law.

A Collection of Essays and Fugitiv Writings (Boston, 1790), quoted in DHRC, XV:202.

32. Smilie, John, speech to the Pennsylvania ratifying convention, 11 28, 1787, DHRC, II:385Google Scholar.

33. Two books – Maier's, PaulineFrom Resistance to Revolution: Colonial Radicals and the Development of American Opposition to Britain (New York: Random House, 1972)Google Scholarand Withington's, Ann FairfaxToward a More Perfect Union: Virtue and the Formation of American Republics (New York: Oxford University Press, 1991)Google Scholar– do an impressive job of capturing the range and intensity of popular politics during the Revolution. Maier, and Wood, Gordon, in The Creation of the American Republic, 1776–1787 (New York: W.W. Norton, 1969), esp. pp. 306–43Google Scholar, provide the best theoretical accounts of the politics of “the people out-of-doors.”

34. For accounts of such organizations in action, see Ryerson, Richard Alan, The Revolution is Now Begun: The Radical Committees of Philadelphia, 1765–1776 (Philadelphia: University of Pennsylvania Press, 1978)Google Scholar; Brown, Richard D., Revolutionary Politics in Massachusetts: The Boston Committee of Correspondence and the Towns, 1772–1774 (New York: W.W. Norton, 1970)Google Scholar.

35. Rosswurm, Steven, Arms. Country and Class: The Philadelphia Militia and the “Lower Sort” during the American Revolution (New Brunswick, NJ: Rutgers University Press, 1987)Google Scholar, and Isaac, Rhys, The Transformation of Virginia, 1740–1790 (New York: W.W. Norton, 1982), esp. pp. 104–10 and 255–60Google Scholar, provide useful background on the politics of militias in early America.

36. See Nelson, William E., Americanization of the Common Law: The Impact of Legal Change on Massachusetts Society, 1760–1830 (Athens: University of Georgia Press, 1975; reprint, 1994), esp. pp. 13–35 and 165–74Google Scholar, (page citations are to the reprint edition) and Stimson, Shannon C., The American Revolution in Law (Princeton, NJ: Princeton University Press, 1990)Google Scholar on the powers exercised by early American juries.

37. Even forms that had specific legal powers – such as juries, militias, and town meetings – were used for purposes that exceeded those powers.

38. Rush, Benjamin, speech to the Pennsylvania ratifying convention, 12 3, 1787, DHRC, II:457Google Scholar.

39. [Madison, James], Publius, : The Federalist 46, New York Packet, 01 29, 1788, DHRC, XV:488Google Scholar. James Wilson took a similar position at the Pennsylvania ratifying convention. DHRC, II:448–49.

40. [Dickinson, John], Fabius, III, Mercury, Pennsylvania, 04 17, 1788, DHRC, XVII:170Google Scholar.

41. [George Bryan, James Hutchinson, John Smilie?], An I, Old Whig, Philadelphia Independent Gazetteer, 10 12, 1787, DHRC, XIII:378Google Scholar.

42. Symmes, William Jr, letter to Osgood, Peter Jr, Andover, MA, 11 15, 1787, DHRC, XIV: 110Google Scholar.

43. A number of prominent antifederalists accused the federalists of working through the post office to prevent the normal circulation of newspapers during the ratification process. For a documentary record of these accusations and the federalist defense, see DHRC, XVI:540–96.

44. See, e. g., Sidney I, Poughkeepsie Country Journal, 02 5, 1788, Storing, VI:92, Philadelphia Independent Gazetteer, March 7, 1788, DHRC, XVI:342; [Bryan, Samuel], Centinel XVIII, Philadelphia Independent Gazetteer, 04 9, 1788, DHRC, XVII :55Google Scholar.

45. Federal Farmer: An Additional Number of Letters to the Republican X, New York, 05 2, 1788, DHRC, XVII:297Google Scholar.

46. Ibid.

47. Thorpe, Francis Newton, The Federal and State Constitutions (Washington, DC: Government Printing Office, 1909), 2457Google Scholar. Maryland's constitution was the exception to this rule. It framed petition as an individual right and did not acknowledge rights to assembly, instruction or consultation. Ibid., 1687.

48. Virginia's ratifying convention also vested the right to petition in “every freeman,” while New York's would have extended it to “every Person.” Maryland's state constitution gave the right to “every man.”

49. Elliot, IV:244.

50. Only two state constitutions – those of Pennsylvania and Vermont – explicitly established the right to free speech. In both, this right was contained in the same provision as the right to a free press, but in a different provision from the rights to assembly, instruction, consultation, and petition. The two state ratifying conventions that proposed both sets of rights (North Carolina and Virginia) followed the same practice.

51. Veit, Helen E., Bowling, Kenneth R., and Bickford, Charlene Bangs, eds., Creating the Bill of Rights: The Documentary Record from the First Federal Congress (Baltimore, MD: The Johns Hopkins University Press, 1991) (hereafter, Veit), 38Google Scholar.

52. In a book review published in 1788, Noah Webster had argued that Shays' Rebellion might be attributed to such ill-considered language in the Massachusetts Constitution:

To the 19th article of the Constitution of Massachusetts, that State must ascribe, in a great degree, the late rebellion: a rebellion the sparks of which were enkindled by real evils, but which were blown into a flame by the town meetings and conventions, which proceeded very constitutionally to consult for the common good of the State, and arraign the conduct of the Legislature before their petty tribunals.

The American Magazine, September 1788, p. 745–746.

53. Veit, 160.

54. Veit, 152.

55. Veit, 167.

56. Veit, 170. Cf. Benjamin Rush's comment:

It is often said, that “the sovereign and all other power is seated in the people.” This idea is unhappily expressed. It should be – “all power is derived from the people.” They possess it only on the days of their elections.

Address to the People of the United States, The American Museum, Philadelphia, 01 1787, DHRC, XIII47Google Scholar.

57. Veit, 171–73.

58. Veit, 163.

59. Veit, 166.

60. Veit, 156.

61. Veit, 164.

62. For an example of this type of suspicion, see Knox's, Henry argument that a second constitutional convention would surely fail because “[t]here are influential men in almost every state who were a convention to be again chosen, would cause instructions to be given which would effectually prevent an agreament even of the majority of the States much less an unanamious assent.” 11 1787, DHRC, XIII:280Google Scholar.

63. Farrand, 1:37–38, 40. According to Rakove, Jack, Dickinson, John and Read, George solicited these instructions to “[bolster] their position in the Convention.” Original Meanings: Politics and Ideas in the Making of the Constitution (New York: Alfred A. Knopf, 1996), 60Google Scholar. Massachusetts' delegates also came to the Convention with (apparently unsolicited) instructions, but existing records do not suggest that those instructions influenced the debates.

64. The struggle over ratification in Pennsylvania suggests the wisdom of New Hampshire's approach. Pennsylvania federalists' strong-arm tactics secured a speedy ratification of the Constitution but at the price of continual contestation over its legitimacy. In fact, opposition to the Constitution seems to have intensified rather than subsided after the state convention voted to ratify. A celebration of the state's ratification led to a riot in Carlisle where James Wilson and Chief Justice Thomas McKean were burnt in effigy. Months later, federalists agreed to drop all charges related to the riot just before an antifederalist militia marched into town to liberate the prisoners. DHRC, 11:670–708. Pennsylvania antifederalists continued to write, and newspapers in both Philadelphia and Carlisle continued to carry, essays opposing ratification long after the state convention had adjourned. By the end of March 1788, more than six thousand people from six counties had signed petitions requesting that the legislature refuse to assent to the Constitution and instruct its delegates in Congress to do the same. DHRC, 11:709–25. When the state legislature tabled the petitions and adjourned, Pennsylvania antifederalists called for a second (national) convention. See, e.g., Philadephiensis XII, Philadelphia Freeman's Journal, April 9, 1788, DHRC XVII:62; Charles Pettit, letter to Whitehill, Robert, Philadelphia, 05 5, 1788, DHRC XVIII:156Google Scholar. These calls persisted even after the requisite nine states had ratified and the Constitution was adopted. For a succinct yet detailed account of the politics of ratification in Pennsylvania, see Graham, George J. Jr, “Pennsylvania: Representation and the Meaning of Republicanism,” in Ratifying the Constitution, ed. Gillespie, Michael Allen and Lienesch, Michael (Lawrence: University of Kansas Press, 1989), 52–70Google Scholar.

65. The federalist strategy of prolonging deliberation and ensuring that it would take place in a variety of different settings was nothing new – the distinctive aspect of their approach was their refusal to recognize popular political debate as a legitimate part of the deliberative process. By contrast, the Pennsylvania Constitution had a provision requiring that no law could be passed in the legislative session in which it was proposed. Legislation was to be delayed six months so that the people would have a chance to consider a policy before it was enacted. During this delay, constituents could either instruct their representatives or elect the candidate who shared their position on the proposed measure. In light of prior practice, then, it is not surprising that antifederalists read the Constitution as an attempt not to foster deliberation but to contain it.

66. Veit, 38.

67. The Senate rejected a motion to delete the consultation clause on September 4. Although there is no record of a subsequent vote to reverse this decision, the clause was eliminated in the draft of the Senate Amendments submitted to the House. Perhaps the Senate's decision to combine the speech and religion amendments (which occurred after the September 4 vote) accounts for the elimination of this “unnecessary” language. See Veit, 38 (n. 11), 46.

68. The Senate's proceedings were secret in this period, and the one senator who is known to have kept a detailed diary of the debates, William Maclay, was ill during most of the discussion of the Bill of Rights.

69. Veit, 38 (n. 10).

70. Moreover, petitions, unlike instructions, would be addressed to the Congress as a whole rather than to individual members. Because no particular member would have any greater obligation to support the petition than any other member would, petitions, presum-ably, would not change the balance of power within the legislature in the same way that instructions might.

71. In the draft of the amendments transmitted from the House to the Senate, “people” was consistently capitalized. The Senate version eliminated the capitalization. The same printer, Thomas Greenleaf, prepared both documents.

72. These antifederalist arguments drew on the rhetorical resources of a long-standing Anglo-American tradition of opposition to excises. For example, Walpole's excise proposals prompted “the greatest deluge of petitions and instructions from constituents that had ever flooded Parliament” and gave rise to an extensive pamphlet literature. Decades later, the arguments in these pamphlets were appropriated by American opponents of the Stamp Act. See Slaughter, Thomas P., The Whiskey Rebellion: Frontier Epilogue to the American Revolution (New York: Oxford University Press, 1986), 11–27Google Scholar.

73. U.S. Constitution, Article I, Section 8.

74. The original constitution placed four limitations on the national government's power of taxation: (1) duties, excises, and imposts had to be uniform throughout the United States, (2) direct taxes had to be apportioned by the same formula as representatives, (3) taxes on the importation of slaves could not exceed $10 per person, and (4) no tax or duty could be laid on goods exported from any state.

75. For Pennsylvania residents, the most widely publicized version of this claim would have been Wilson's speech in the State House Yard, in which he

venture[d] to predict, that the great revenue of the United States must, and always will be raised by impost, for, being at once less obnoxious, and more productive, the interest of the government will be best promoted by the accommodation of the people.

Philadelphia, , 10 6, 1787, DHRC, XIII:342–43Google Scholar. Hamilton echoed Wilson's analysis when he stated:

In America it is evident, that we must a long time depend, for the means of revenue, chiefly on such duties [on imported goods]. In most parts of it, excises must be confined within a narrow compass. The genius of the people will ill brook the inquisitive and preemptory spirit of excise laws.

[Hamilton], Alexander, Publius: The Federalist 12, New York Packet, 11 27, 1787, DHRC, XIV:237Google Scholar.

76. Findley, William, History of the Insurrection in the Four Western Counties of Pennsylvania, (Spartanburg, SC: The Reprint Company, 1984), 43Google Scholar.

77. Bowling, Kenneth R. and Veit, Helen E., eds., The Diary of William Maclay and Other Notes on Senate Debates (Baltimore, MD: Johns Hopkins University Press, 1988), 84Google Scholar.

78. Slaughter, The Whiskey Rebellion, 97–101.

79. Ibid., 105.

80. My account of opposition to the excise of 1791 focuses on western Pennsylvania, which became the site of the Whiskey Rebellion largely because the national government decided to employ military force there. Aside from the character of the national government's intervention, nothing distinguished resistance in Pennsylvania from resistance in the frontier regions of every state south of New York, except, perhaps, the fact that some western Pennsylvania elites supported the tax. Slaughter, The Whiskey Rebellion, 117–20, 151. Though the national government declared itself victorious in putting down the Whiskey Rebellion, the tax revolt in the west continued until the Republicans gained control of the national government and repealed its excise laws. Tachau, Mary K. Bonsteel, “A New Look at the Whiskey Rebellion,” in The Whiskey Rebellion: Past and Present Perspectives, ed. Boyd, Steven R. (Westport, CT: Greenwood Press, 1985), 97–118Google Scholar.

81. In many parts of the west, access to markets was inhibited by the U.S. government's inability to negotiate a treaty with Spain that would give U.S. citizens the right to navigate the Mississippi.

82. “Petition against Excise,” The Writings of Albert Gallatin, vol. I, ed. Adams, Henry (Philadelphia: J. B. Lippincott, 1879), 3Google Scholar. Gallatin wrote this petition in 1792, but the second Pittsburgh convention rejected the draft as too moderate.

83. Hugh Henry Brackenridge, “Thoughts on the Excise Law,” National Gazette, February 9, 1792, in Incidents of the Insurrection, ed. Marder, Daniel (New Haven, CT: College and University Press, 1972), 47Google Scholar. Trained as both a clergyman and a lawyer, Brackenridge was one of the most prolific writers of the early national period and one of America's first novelists. A federalist during the ratification debates, by 1794 he was a Francophile critical of the administration's Hamiltonian fiscal and foreign policies. Like Findley, Brackenridge wrote a contemporary history of the Whiskey Rebellion primarily to exonerate himself from federalist charges that he was one of the leaders of the insurrection.

84. “Petition against Excise,” The Writings of Albert Gallatin, 4.

85. Another provision of the law gave the president the power to establish excise districts that crossed state boundaries. This section, and the debate surrounding it, particularly incensed William Maclay, who declared of his federalist colleagues:

Annihilation of the State Governments is undoubtedly the Object of these People…. they have created an indian War, that an Army may Spring out of it and the Triffling Affair of our having 11 Captives at Algiers (who ought long ago to have been ransomed) is made the pretext for going to war with them and fitting out a fleet. With these Two engines, and the collateral aids derived from an host of revenue Officers, fare-well Freedom in America.

Bowling and Veit, The Diary of William Maclay, 379. Maclay's observations raise the question of whether the administrative units (e. g., electoral districts, tax surveys) of the national government were deliberately constructed in such a way that they did not correspond to organized political communities. Such distinctively national units would tend either to undercut local allegiances or to fragment opposition.

86. The national government, of course, saw the matter differently. It had “devoted almost five-sixths of its operating budget to war in the West during the years from 1790 to 1796.” Slaughter, The Whiskey Rebellion 94. Washington was incensed that opposition to excises came from the very area that would benefit most from the revenue. Expressing his outrage at western Pennsylvanians' resistance to collection of the taxes, he wrote:

Such conduct in any of the Citizens of the United States, under any circumstances that can well be conceived, would be exceedingly reprehensible; but when it comes for a part of the Community for whose protection the money arising from the Tax was principally designed, it is truly unaccountable, and the spirit of it much to be regretted.

Letter to the Secretary of the Treasury, September 7, 1792, The Writings of George Washington, ed. Fitzpatrick, John C. (Washington, DC: Government Printing Office, 1940), XXXII:143Google Scholar.

87. “The Remonstrance of the society of Hamilton's district of Washington County in Pennsylvania,” [1794], William Rawle Family Papers 1:12, Historical Society of Pennsylvania, quoted in Slaughter, The Whiskey Rebellion, 164. See also George Nicholas, letter to James Madison, November 29, 1794, The Papers of James Madison, ed. Mason, Thomas A., Rutland, Robert A., and Sisson, Jeanne K. (Charlottesville: University Press of Virginia, 1985), XV:394Google Scholar.

88. Findley, History of the Insurrection, 79–80.

89. Proclamation, September 15, 1792, The Writings of George Washington, XXXII: 151.

90. Findley, History of the Insurrection, 93.

91. Brackenridge, Incidents of the Insurrection, 93.

92. Baldwin, Leland D. points out that contemporary estimates of the number of people attending the Braddock's field rendezvous vary dramatically. Gallatin put the figure between fifteen hundred and two thousand. Brackenridge asserted that it was seven thousand, but Findley said that number was much smaller. Whiskey Rebels: The Story of a Frontier Uprising, rev. ed. (Pittsburgh: University of Pittsburgh Press, 1968), 146–47Google Scholar. Washington probably relied on Hamilton's estimate that the four countries contained sixteen thousand men over age 16 and “that of these about seven thousand may be expected to be armed.” Letter to George Washington, August 2, 1794, The Papers of Alexander Hamilton, ed. Syrett, Harold C. (New York: Columbia University Press, 1972), XVII:18Google Scholar. Slaughter, who has written the most thorough and up-to-date study of the event, accepts the seven thousand figure but does not explain why. The Whiskey Rebellion, 186.

93. Findley, History of the Insurrection, 105. See also the very similar passage in which Gallatin attributes to the parade “no object … except a wish to impress the country with an idea of their influence and strength.” “Speech … Touching the Validity of the Elections,” The Writings of Albert Gallatin, III:13.

94. Edmund Randolph, letter to George Washington, August 5, 1794, quoted in The Papers of Alexander Hamilton, XVII:11 (n. 9). Jefferson made the same point in a letter to Madison:

I wish much to … know how such an armament against people at their ploughs, will be represented, and an appeal to arms justified before that to the law had been tried & proved ineffectual, by the fact, not by the certified opinion of a magistrate paving the way to an embassy.

Letter to Madison, James, 10 30, 1794, The Papers of James Madison, XV:366Google Scholar.

95. Letter to Washington, George, 08 5, 1794, The Papers of Alexander Hamilton, XVII:27Google Scholar.

96. Ibid., XVII:32.

97. Letter to George Washington, August 2, 1794, ibid., XVII: 16, 18.

98. Ibid., XVII: 19.

99. The Papers of Alexander Hamilton, XVII:24 (n. 1).

100. Findley, History of the Insurrection, 180.

101. For charges that the “friends of government” stirred up sectional animosities as a recruiting device for the militias, see Findley, History of the Insurrection, 160–64; Gallatin, “Speech … Touching the Validity of Elections,” The Writings of Albert Gallatin, III:46; Gallatin, letter to Governor Mifflin, September 17, 1794, ibid., 1:12; George Nicholas, letter to Madison, James, 11 29, 1794, The Papers of James Madison, XV:394Google Scholar.

102. Letter to Monroe, James, May 26, 1795, The Writings of Thomas Jefferson, collected and edited by Ford, Paul Leicester (New York: G. P. Putnam's Sons, 1896), VIIGoogle Scholar.

103. See, for example, Jefferson's complaint that he

expected to have seen some justification of arming one part of society against another; of declaring a civil war the moment before the meeting of that body which has the sole right of declaring war; of being so patient of the kicks & scoffs of our enemies, & and rising at a feather against our friends; of adding a million to the public debt & deriding us with recommendations to pay if it we can &c, &c.

Letter to James Madison, December 28, 1794, ibid., VI:518–19.

104. Franklin, , Independent Gazetteer, Philadelphia, 08 30, 1794, The Papers of Alexander Hamilton, XVII:176 (n. 3)Google Scholar.

105. [Alexander Hamilton], Tully No. 1, Dunlap and Claypoole's American Daily Advertiser, Philadelphia, August 23, 1794, The Papers of Alexander Hamilton, XV: 133.

106. Gallatin hedged his bets by arguing that the most serious grievance –the use of jury trials outside the vicinage – had been eliminated by Congress's June 5 revision of the excise law. Resistance might once have been justified, he argued, but now money – not liberty – was the only thing at stake. “Declaration of the Committees of Favette County,” September 1794, The Writings of Albert Gallatin, 1:5.

107. [Hamilton], Alexander, Tully No. IV, Dunlap and Claypoole's American Daily Advertiser, Philadelphia, 09 2, 1794, The Papers of Alexander Hamilton, XVII: 177Google Scholar.

108. [Hamilton], Alexander, Tully No. 1, Dunlap and Claypoole's American Daily Advertiser, Philadelphia, 08 23, 1794, The Papers of Alexander Hamilton, XVII:135Google Scholar.

109. Letter to Monroe, James, 12 4, 1794, The Papers of James Madison, XV:406Google Scholar. Compare Washington's statement that the rebellion

has demonstrated, that our prosperity rests on solid foundations; by furnishing an additional proof, that my fellow citizens understand the true principles of government and liberty: that they feel their inseparable union: that notwithstanding all the devices which have been used to sway them from their interest and their duty, they are now as ready to maintain the authority of the laws against licentious invasions, as they were to defend their rights against usurpation. It has been a spectacle, displaying to the highest advantage, the value of Republican Government, to behold the most and least wealthy of our citizens standing in the same ranks as private soldiers; preeminently distinguished by being the army of the constitution; undeterred by a march of three hundred miles over rugged mountains, by the approach of an inclement season, or by any other discouragement.

“Sixth Annual Address to Congress,” November 19, 1794, The Writings of George Washington, XXXIV:34. Two recent books suggest that Washington himself was fully aware of the symbolic dimensions of his conduct during the rebellion and that he quite deliberately constructed the spectacle to which he refers. See Phelps, Glenn A., George Washington and American Constitutionalism (Lawrence: University of Kansas Press, 1993), 130–36Google Scholar; Elkins, Stanley and McKitrick, Eric, The Age of Federalism: The Early American Republic, 1788–1800 (New York: Oxford, 1993), 478–83Google Scholar.

110. George Nicholas, letter to James Madison, November 29, 1794, The Papers of James Madison, XV:393.

111. George Washington, “Sixth Annual Address to Congress,” The Writings of George Washington, XXXIV:34–35. The debate arose in the House because one representative, Thomas Fitzsimons, felt that it was imperative that Congress affirm the president's condem-nation of the societies. The Senate's answer to the president's address echoed his condemnation of “self-created societies,” but the House ultimately declined to do so. Annals of Congress, III:899, 793–94, 947–48.

112. There seems to have been little, if any, connection between these democratic clubs and the Whiskey Rebellion. David Bradford, usually the most militant orator at any western Pennsylvania meeting on the excise and one of the men responsible for robbing the mail, belonged to Mingo Creek Society. Because that society was founded three years after resistance to the excise began, it cannot be said to have caused the opposition to the law. Findley claims that this was the only club that existed in western Pennsylvania and that it condemned other measures of the national government but not the excise. History of the Insurrection, 166. Washington and Hamilton seem to conflate recurrent, ad hoc meetings with clubs.

113. Dexter, Samuel, speech to the House of Representatives, November 27, 1794, Annals of the Congress of the United States (Washington, DC: Gales and Seaton, 1849), IIIGoogle Scholar.

114. In a further constriction of the realm of legitimate dissent, Hamilton, writing as Tully, and Randolph, writing as Germanicus, both assimilated opposition to ordinary legislation passed by constitutional means to opposition to the Constitution itself. Tully II, The Papers of Alexander Hamilton, XVII: 148–50; Germanicus, Early American Imprints, no. 27597. In the course of the ratification debates, Federal Farmer had already anticipated this development:

[W]hen the people shall adopt the proposed constitution in will be their last and supreme act; it will be adopted not by the people of New-Hampshire, Massachusetts, &c. but by the people of the United States; and whenever this constitution, or any part of it, shall be incompatible with the most antient customs, rights, the laws or the constitutions heretofore established in the United States, it will entirely abolish them and do them away: And not only this, but the laws of the United States which shall be made in pursuance of the federal constitution will be also supreme laws, and whenever they shall be incompatible with those customs, rights, laws, or constitutions heretofore established, they will also entirely abolish them and do them away.

Federal Farmer, Letters to the Republican, New York, November 8, 1787, DHRC, XIV:43.

115. Now with a capital “F” to indicate the Hamiltonian wing of the government, which in this period became increasingly polarized from the emerging Democratic-Republican faction headed by Jefferson and Madison.

116. Murray, William, speech in the House of Representatives, 11 5, 1794, Annals of Congress, III:907Google Scholar.

117. See text at footnote 38 and at footnote 54.

118. Ames, Fisher, speech in the House of Representatives, 11 26, 1794, Annals of Congress, III:923 (emphasis added)Google Scholar.

119. Ibid., III:925. Madison offered a similar analysis, but believed that the prompt turnout of the militia in this case averted the prospect of increased repression. Letter to Monroe, James, 12 4, 1794, The Papers of Janes Madison, XV:406Google Scholar.

120. Annals of Congress, III:922–23.

121. Murray, William, speech in the House of Representatives, 11 25, 1794, Annals of Congress, III:906Google Scholar.

122. I set the antifederalists up as the Pederalists' interlocutors because the Democratic-Republicans' arguments in the House debates were not particularly compelling. Basically, the Democratic-Republicans contented themselves with pointing out the hypocrisy of the administration's censure of clubs that were indistinguishable, at least on the grounds for which they were condemned, from institutions that the Federalists themselves controlled. William Giles of Virginia pointed out that, like the democratic societies, the Senate “bolt[s] their doors, and vote[s] in the dark,” while Jefferson wrote to Madison that he could hardly wait to see how the Federalists would reconcile their criticism of the clubs with their support for the Cincinnati, also a self-created society.

The most interesting turn in the debate was Giles's appropriation of William Murray's use of constitutional status as a principle for distinguishing legitimate from illegitimate assemblies. Congress's own legitimacy would be in question, Giles argued, if it were to overstep the bounds of its constitutional authority: the public have a right to censure us, and we have not a right to censure them. We have a title, as individuals, but when we undertake this business in the shape of a Legislative body, we are as much a self-created society, as any Democratic club in the Union. We are neither authorized by the Constitution, nor paid by the citizens of the United States, for assuming the office of censorship.

Giles's argument here is important because it shows the extent to which Federalists assumed a simple correspondence between the Constitution's authority and that of the national government. Annals of Congress, III:917, 919; The Writings of Thomas Jefferson, VI:517.

123. While this formulation echoes Bruce Ackerman's characterization of “dualist democracy,” antifederalist discourse gave the same words a very different inflection. Where Ackerman sees an elevation of “the People, ” antifederalists saw their consignment to the margins of political decision-making. We the People: Foundations, 198–99, 217–18, 223.

124. Thomas Tredwell, speech to the New York ratifying convention, July 2, 1788, Elliot, II:398–99. See also Samuel Spencer, speech to the North Carolina ratifying convention, July 29, 1788, Elliot, IV: 153.

125. A Friend, True, Richmond, 12 6, 1787, DHRC XIV:373–74Google Scholar.

126. Arguably, this analysis simply plays out one implication of the federalists' contention that the national government could rule through law rather than force if only it were given power over individuals rather than states. See [Hamilton], Alexander, Publius: The Federalist 15, New York Independent Journal, 12 1, 1787, DHRC, XIV:324–31Google Scholar.

127. The antifederalist interpretation would lead to the conclusion that the national government's power depended on it tolerating no rival centers of authority. But what the federalists strived for was a monopoly on political power, not on social power more generally.

128. [Madison], James, Publius: The Federalist 10, New York Daily Advertiser, 11 22, 1787, DHRC, XIV: 175–81Google Scholar.

129. [Madison?], James, Publius: The Federalist 51, New York Independent Journal, 02 6, 1788, DHRC, XVI:43Google Scholar.

130. The end of the article is, of course, rarely the end of the story. Less than a decade after the Whiskey Rebellion's conclusion, the national government's asserted-but-never-uncontested monopoly on popular representation had been seriously undermined as states and parties made increasingly authoritative claims to speak for the people.