David F. Forte
September 17, 2019
n 1837, mob violence spread through the Mississippi Valley, gripping the attention of a young Abraham Lincoln. In Vicksburg, five gamblers, plying their disreputable but legal trade, were lynched. In St. Louis, Francis McIntosh—a free black who, by all credible accounts, had murdered a white man—was tied to a tree and burned to death. In Illinois, a mob shot and killed an abolitionist printer and threw his presses into the Mississippi.
In his first great speech, Lincoln spoke of “The Perpetuation of Our Political Institutions,”
before the Young Men's Lyceum in Springfield, Illinois, in January 1838. He noted that the last of the founding generation had died out: “a once hardy, brave, and patriotic, but now lamented and departed race of ancestors.” Their living example was no longer before the nation’s eyes. Instead, “[a]ccounts of outrages committed by mobs, form the every-day news of the times.” As mob violence spread, it became a contagion: “Thus went on this process of hanging, from gamblers to negroes, from negroes to white citizens, and from these to strangers; till, dead men were seen literally dangling from the boughs of trees upon every road side; and in numbers almost sufficient, to rival the native Spanish moss of the country, as a drapery of the forest.”
If mobs continued to take the place of the law, Lincoln argued, people would lose their attachment to the government, and our political institutions collapse. But was he too sanguine about the founders and their era? Despite the genius of George Washington, John Adams, Thomas Jefferson, and James Madison—of Alexander Hamilton, John Jay, James Wilson, and John Marshall—the nation nearly disintegrated into a civil war just a dozen years after the Constitution’s ratification. The founding’s great lights had become openly contemptuous of one another. Political differences seemed impossible to bridge.
In May 1797, for example, a New York newspaper published a translation of a letter Jefferson had written a year earlier to a friend in Paris, Phillip Mazzei. Alluding to those whom he regarded as pro-English monarchists, including Washington, Jefferson wrote “I should give you a fever, if I should name the apostates who have embraced these heresies; men who were Solomons in council, and Sampsons in combat, but whose hair has been cut off by the whore England.”
This wasn’t Jefferson’s only detraction of Washington. Even while serving as Washington’s secretary of state Jefferson provided behind the scenes financing—and possibly copy—to newspapers that unceasingly attacked the president’s character. Washington finally, reluctantly, saw Jefferson’s hand in these attacks, writing in July 1796,
nor did I believe until lately, that it was within the bonds of probability; hardly within those of possibility, that, while I was using my utmost exertions to establish a national character of our own…that I should be accused of being the enemy of one Nation, and subject to the influence of another; and to prove it, that every act of my administration would be tortured, and the grossest, and most insidious misrepresentations of them be made (by giving one side only of a subject, and that too in such exaggerated and indecent terms as could scarcely be applied to a Nero; a notorious defaulter; or even to a common pick-pocket).
The two men had few words for one another thereafter.
A year later, Washington’s successor, President Adams, wrote of his former friend and then-Vice President Jefferson, “[i]t is with much reluctance that I am obliged to look upon him as a man whose mind is warped by prejudice and so blinded by ignorance as to be unfit for the office he holds.”
Jefferson, in turn, thought Treasury Secretary Hamilton the republic’s greatest enemy. Jefferson praised Hamilton’s intellect, but opined that he was “so bewitched & perverted by the British example, as to be under thoro' conviction that corruption was essential to the government of a nation.”
Hamilton had even less kind words for fellow Federalist John Adams. In a 47-page public letter urging that the president not be re-elected in 1800, Hamilton accused Adams of allying himself with the “calumniators” of George Washington, and possessing a “vanity without bounds.” He described the “great and intrinsic defects in [Adams’s] character which unfit him for the office of chief magistrate.” Adams, in turn, believed Hamilton—“that bastard brat of a Scottish pedlar”—was “an impertinent ignoramus.”
Newspapers were worse. Encouraged by Jefferson, one accused President Adams of having a "hideous hermaphroditical character, which has neither the force and firmness of a man, nor the gentleness and sensibility of a woman.” They also circulated the story that Adams planned to create an American dynasty by marrying one of his sons to a daughter of King George III. In return, Federalist newspapers called Vice President Jefferson “a mean-spirited, low-lived fellow, the son of a half-breed Indian squaw, sired by a Virginia mulatto father."
What had happened to these men?
They had won an unwinnable war, unified an impossibly diverse set of cantankerous states, created a new political order in three months, shepherded that order through a hazardous ratification process, created a new government, put it upon sound financial ground, neutralized a threat from Britain, and defeated the French menace on the high seas. How could they throw all that away in a paroxysm of violence? Blindly, each of our founders had come to believe that his competitor had lost the necessary element of public virtue—concern for the well-being of the whole—and aimed only to advance his particular faction.
By 1800, the country had divided into two parties, Federalist and Republican. These were not the political parties of later generations—parties that had become “constitutionalized”, so to speak. Such parties contain and constrain disparate factions and, in a way that Madison would have approved, ameliorate their passions. But our two initial parties were something different. They themselves had become factions.
Both the Federalists and the better organized Jeffersonian Republicans were formed in response to Hamilton’s economic program. They solidified following the French Revolution, when revolutionary France and monarchical England began a nearly quarter-century war. Republicans believed the French were heirs to the American Revolution, and argued that since France formally remained America’s ally, the United States were obligated to take her side. The Federalists thought the French Revolution a radical departure from the American one and a threat to our republic. They favored closer relations, or possibly even an alliance, with Britain. Each party regarded the other as an ally of the enemy.
The 1800 election resulted in a tie between the two members of the Republican “ticket,” Thomas Jefferson and Aaron Burr. The constitutional rule at the time required that the House of Representatives decide the contest by a majority vote of the states. The Federalists had enough votes to block the despised Jefferson from becoming president. When they toyed with making Burr president, many observers, including Adams and Republican House leader Albert Gallatin, feared the intense political conflict that followed could lead to civil war. Virginia Governor James Monroe and Pennsylvania Governor Thomas McKean took steps to ready their militias; in response, the Washington Federalist warned that Federalist New England could field 70,000 troops at a moment’s notice.
Jefferson expected that, if the result had to be forced, the Constitution would have to be replaced. What he later metaphorically called “the revolution of 1800” would have been literal. Monroe and McKean were not the only ones to have contemplated force to settle matters with their “disloyal” countrymen. In 1799, Hamilton had written to Speaker of the House Theodore Sedgwick: “When a clever [military] force has been collected let them be drawn towards Virginia for which there is an obvious pretext—& then let measures be taken to act upon the laws & put Virginia to the Test of resistance.”
But after 35 ballots in the House of Representatives with neither Burr nor Jefferson gaining the requisite supermajority of states, Congressman James Bayard of Delaware determined to break the deadlock and to allow Jefferson to emerge victorious. His Federalist colleagues were outraged—but acquiesced. Bayard wrote that he had decided it was better Jefferson be president than to “hazard the Constitution.” No Federalist congressman voted for Jefferson (to his bitter consternation). Instead, some withheld their votes so that Republicans could carry enough states into Jefferson’s column. Thomas Jefferson was elected, and the first peaceful transfer of power in modern times came to pass. The Constitution endured.
So we return to the question: how did these framers, who so disdained one another, keep from civil strife? As Lincoln would later ask in Springfield, how did they perpetuate our political institutions?
It was because the Constitution, which Bayard was unwilling to “hazard,” had already become an object of reverence. At the end of the Philadelphia convention, after months of debate and informed wrangling, the delegates had fashioned a document that was more than itself. In the Committee on Style, Gouverneur Morris had shaped it into something iconic. His preamble gave it a purpose (a more perfect union), a universality (to promote the general welfare), a life beyond its pages (to secure the blessings of liberty to ourselves and our posterity), and a sacredness (do ordain and establish this Constitution). It was more than an agreement. It was a covenant.
Madison wisely understood that the anti-federalists outside of the covenant could be gathered in with a Bill of Rights. And with the ratification of those amendments, they were. With the anti-federalists on board, Washington and the First Congress enfleshed the structure of government established by the Constitution. Marshall would later enliven it.
It was the Constitution that the founders made that held them back. The political leaders of that fractious time understood the nature of a constitution: a fundamental charter that binds the people against themselves. Our Constitution bound against themselves the very people who had authored and ratified it. That is why a constitution that “changes with the times” is unworthy of the name. If a constitution does not bind the people against themselves, then all kinds of mischiefs can arise.
What made that constitutional order enduring? The framers had created a new kind of government, one that upended traditional ideas not only of republicanism, which speaks to the nature of government, but also of sovereignty, which speaks to the nature of the state. Justice Anthony Kennedy once said, “The Framers split the atom of sovereignty.” He referred to the division between the federal government and the states, something Madison had observed in The Federalist. But there was a deeper and more consequential notion of sovereignty that the framers split.
Previously, sovereignty was thought to be indivisible—the locus of ultimate power in a state. As Jean Bodin put it, “Maiestie or Soveraigntie is the most high, absolute, and perpetuall power over the citisens and subiects in a Commonweale.” The sovereign could be king, parliament, or the king-in-parliament. But for the United States Constitution, the locus of sovereignty was the people. That principle was evidenced in the Declaration of Independence, in the Preamble to the Constitution, and in the ratification process. As early as 1764, Boston’s James Otis had challenged Parliament’s assumption that it was the seat (with the king) of sovereignty within the realm. “That civil government is of God: that the administrators of it were originally the whole people: that they might have devolved it on whom they pleased: that this devolution is fiduciary, for the good of the whole.” It is the people that make the government legitimate. The government cannot make itself legitimate.
That’s the legitimizing part of sovereignty, which the framers had drawn from the Scottish enlightenment and English Whig writers. But the operational part of sovereignty is a different thing. The problem is that if the people rule directly—if they are the operational part of sovereignty—then the polity inevitably devolves into factions. Here the Americans hit upon a brilliant invention and solution.
That solution, which seems so familiar to us as to be prosaic, was to divide operational sovereignty into a different sets of institutions, each staffed from a different constituency. The Senate is elected by the States (in the original scheme), the president by a separate college, the Supreme Court by the president and the Senate. Even the House of Representatives, representing the people, is peopled by representatives who must collect a number of factions to gain a majority. Each department possesses limited powers, and, more importantly, the ability to check the other departments. The objective was to prevent any one faction from gaining power at the expense of others, leaving, as the only practical alternative, the common good, or, as the Preamble puts it, the general welfare. That is what the separation of powers and the division of operational sovereignty between the federal government and the states was supposed to do.
Lincoln’s Gettysburg Address summarizes this well: we pray for a government “of the people” (our legitimizing sovereignty), “by the people” (their operational sovereignty in interlocking institutions), and “for the people,” (directed to the general welfare).
In the close brush to disunion and civil war in 1801, there is this fact: the Constitution worked. Factional politics did not plunge us into conflict. The most revolutionary of the founders, Thomas Jefferson, once in office, did not try to overthrow the Constitution but worked within it, proclaiming that “every difference of opinion is not a difference of principle.” Jefferson was so fastidious about the Constitution that, in 1803, he even doubted his authority to conclude the Louisiana Purchase.
When Lincoln in 1838 surveyed the chaos sweeping America, he understood the Constitution’s power: “As the patriots of seventy-six did to the support of the Declaration of Independence, so to the support of the Constitution and Laws, let every American pledge his life, his property, and his sacred honor.”
In that most violent of decades, the 1790s, 40,000 people were executed in Paris, and tens of thousands more were killed in the countryside. But amidst the suspicions, deprecations, and disunity in America, nobody was killed for their political beliefs. The revolution did not eat its children. The Constitution—the original Constitution—kept them from doing so.
This article is drawn from the Constitution Day address delivered at Cleveland-Marshall College of Law.