Internal revolution
Even though the American Revolution was accompanied by democratic demands that had some impact during the framing of States’ Constitutions, those who enjoyed wealth and political power did their best in using the constituent power to undermine the democratic and economic claims of the masses.
As the historian Merrill Jensen wrote in the 1948 preface to the second printing of his book The Articles of Confederation (p. xvii)The fact is that during and after the Revolution the patriot members of the old aristocracy and its rich new members fought hand in hand to hold their position, or to regain it in states where it had been lost.
Violence and constituent power in America 107 There had been a conflict between the American revolutionaries and the British loyalists but there were also going to be conflicts among the citizens of the new American States. As mentioned above, Pennsylvania, already shortly before the Declaration of Independence, represented the first serious clash between the privileged classes and a revolutionary mass of farmers and artisans organized in committees, associations, and militia (see Douglass, 1955, pp. 120-122; Hawk, 1961; Thayer, 1953; Wood, 1998, pp. 83-90). It has been observed (Palmer, 1968, pp. 344-345) that the harsher turn experienced in Pennsylvania with the fight among Americans had been precisely due to the persistence of loyalism among Pennsylvania’s elites expressed in a desire of conciliation with the metropolitan power. But in 1776, after a year of open war with Britain, and when the conservatives opted, not without reluctance, for leaving behind their Anglophile sensibilities, their position became so weak that they found their desire of containing the democratic impetus of the masses impracticable.
In the summer of 1776, radicals captured the control of the Pennsylvania constitutional Convention and wrote a draft that reflected the egalitarian ideas developed by the Whigs and, particularly, by the British radical and in that time an enormously popular figure in America: Thomas Paine (see Gargarella, 2010, pp.
13-14; Selsam, 1971; Wood, 1998, pp. 85, 137-139). The Pennsylvania Constitution reserved a central role for the legislature and created a weak executive: the governor was totally eliminated and replaced by an Executive Council of 12, who were elected directly by the people. Pennsylvanian constitutionmakers also suppressed the institution of the Senate and opened up to the public the decision-making process. The draft did not contemplate any of the counter-majoritarian knots that would afterwards be scattered in the U.S. Federal Constitution and that were still defining the institutional design in most States through which the elites kept their hands on the reins of power (the persistence of a second legislative chamber with property thresholds of large estates to access office is an example of this).The example of Pennsylvania had some influence in the drafting of other States’ constitutions (see Lutz, 1988, pp. 104-105; Nevins, 1927, pp. 117-170) but the institutional democratization expressed in some particular constitutional regulations was more marked by the local needs given the military situation or by the colonial background on organizing the government6 than by the spreading of radical revolutionary trends that had Pennsylvania as an epicentre. In any case, the well born and the socially qualified chiefly conducted the constituent processes developed between 1776 and 1777 in the rest of the States, and even regained the power in Pennsylvania a few years later.
The 1776 Pennsylvania Constitution was one of the most democratic constitutions produced in the eighteenth century, at least according to its formal provisions, but in a similar way as happened with the 1793 French Constitution, the American text did not work in practice under its democratic principles, and became an example of the authoritarian turn that populism may cause (Palmer, 1968, p. 345) a circumstance that was conveniently invoked by the Pennsylvania upper classes in order to derogate the regime in 1790 once they recovered from
their weakness under the protection of the constitutional structure that had been assembled at the federal level (Bouton, 2007, p.
171).But social tensions became even more acute by the conclusion of the peace with Britain and the entering into force of the Articles of the Confederation in the decade of the 1780s. Some of the recently independent American States had to tackle an important and controversial demand among the bulk of the American population: the issuance of paper money. Most people were highly indebted after the war, and the printing of paper money appeared to offer the only escape from this situation (Beard, 1964, p. 28; Gargarella, 2010, p. 14). But money creation provoked serious concerns among creditors, landowners, and the American political elite because it reduced the value of their assets. Debt relief laws passed by some State legislatures forced creditors to accept repayment in devalued paper currency (Fritz, 2008, p. 123). It is not casual that some of the drafters of the U.S. Constitution that belonged to the group of owners and creditors opposed fiercely the printing of paper money, and that issue was often remembered by them as an example of the infamous consequences that the conquer of the power by the masses and the prevalence of the decisions of the majority would entail (Jensen, 1967, p. 313).
Rhode Island offers a good example to illustrate these political and economic dynamics. The same State that did not send delegates to the 1787 Philadelphia Convention and the State which was most reluctant to ratify the Federal Constitution, was also the place where the question of printing paper money in order to satisfy debtors' claims reached its peak (Nevins, 1927, p. 518). Jonathan Hazard, the leader of the debtors' group, was in 1786 directly elected as the governor of Rhode Island. He controlled the State legislative branch through his supporters as well. Such a position allowed Hazard to pass diverse laws favourable to debtors' interests and promoted the issue of paper money, as well as the establishment of fines for the creditors that did not accept the bills and the possibility of bringing them before the State's courts if they persisted in refusing paper money.
The situation in Rhode Island was harshly criticized by James Madison, who in a letter sent to his brother, Ambrose, remarked on the economic and social chaos into which the State had fallen.7Also in a stable State, in Maryland, the House of Delegates in the winter of 1786-1787 attempted to bring pressure on the Senate by urging the people at large to instruct the members of the upper house to pass paper money bills (Wood, 1998, p. 369). The opponents of this measure avoided its enaction by remarking that the Senate, which they controlled, was equally representative of the people as the House of Delegates and, thus, representatives were not bound to the instructions given by the electors. The case of Maryland on the issue of paper money expressed the tension between the House of Delegates in which the radicals were more influential and the Senate, which, as in many States, remained a stronghold of the elite.
But other dramatic events would break out across the American State under the Confederation that would instigate the future U.S. President John Quincy Adams in July 1787 to speak of the “critical period.” The elite was especially alarmed by
Violence and constituent power in America 109 the protests that spread in Massachusetts from the summer of 1786 under the leadership of Daniel Shays, a bankrupt farmer and former army captain, whose name was given to the rebellion.8 Rebels, made up of farmers and small debtors, sought to force the Massachusetts legislature to drop direct taxation, lower court fees, and make other fiscal concessions to the mob. Protests degenerated into riots, assaults on State institutions, and clashes with the State militia, which at the very beginning was proved to be unreliable. The tumult only could be suppressed by the funding of a private army assembled with donations coming from more than one hundred merchants. Some historians have interpreted Shays' Rebellion as containing elements of class warfare (Collier and Collier, 1986, p.
12). It represented a peak of the confrontation between the local population and some parts of the oligarchy that already began to operate at a supra-State level.From another strand, some scholars have interpreted the Shays' Rebellion as a postcolonial conflict (see, for instance, Rana, 2020, p. 77; Szatmary, 1980, pp. 19-36; on the consequences of postcolonial conflicts regarding the constitutional evolution of the liberated States, see Ackerman, 2020, p. 387). According to them, the convulsions experienced in Massachusetts by the mid-eighties of the eighteenth century crystallized the potential threats of dissolution and European subjection that confronted the new independent States. The rebellion itself was initially precipitated by the decision of the British merchants to close their doors to American business. The attitude of the British actors might be inferred as a sort of economic retaliation against those that had challenged the situation of colonial domination. Either way, disregarding the role of the former metropoli in instigating the crisis, the American elites that later would gather in the Philadelphia Convention were convinced that a stronger central government was needed in order to face also the external threats and, particularly, those coming from the appetite of the British to keep control of their former colonies.
In the 1787 Massachusetts elections the supporters of the popular claims gained the majority in the House (although the Senate remained under the control of the establishment) and elected a new governor inclined to enforce the various devices that the legislature would pass in order to suspend the ordinary means for the recovery of debts. Such a shift in the institutions of Massachusetts in the aftermath of the rebellions increased the criticisms of the people's government. Personalities such as Henry Knox began to speak of “mad democracy” not only in Massachusetts but from “almost every legislature” (quoted in Fritz, 2008, p. 113) and the voices warning of the danger of the “majoritarian tyranny” and urging to find institutional remedies to contain it were common among the parts of American society that represented the creditors (Wood, 1998, p.
411). “Every state has its Shays” would be later written by a supporter of the Federal Constitution at the beginning of the ratification campaign (Richards, 2002, p. 139). In fact, when Madison argued for constitutional restrictions to the overbearing power of a majority in order to protect rights, he was mainly concerned about the protection of property rights, given the crises unleashed by the debtors. He asserted in The Federalist No. 10 that “the first object of government” was “the protection of different and unequal faculties of acquiring 110 Violence and constituent power in America property” (1989, p. 58). Furthermore, Madison, as most of the American elite, thought that the revolutionary principles of government left the rights of property vulnerable to the excesses of popular government (Nedelsky, 1990, p. 21). The American wealthy class that complained about the crippling of property rights by the British Parliament before the war realized that the same insecurities towards the protection of their assets may be found in their dispossessed fellow citizens when they acted through the representative institutions. Yet, as Ackerman remarked (1993, pp. 170-171), given the convulsions experienced during the Revolution and its aftermath, the American elites already faced up to a problem that would become a classic in the following age of the revolutions of the nineteenth and the twentieth centuries, namely, how to avoid that someone else might challenge the established authority gained through the revolution with another revolution. Just as the revolutionaries challenged the British authority, so can others challenge the regime of the Confederation and the independent American States. If the legal order has been broken once, it could be broken more times.As is well known, Madison was compelled by such issues when he wrote the Federalist No.10 and analyzed the question of the factions (1989, pp. 56-65). The point was that once the constitutional order was established, no faction could claim that it spoke in the name of the People in the same way that the revolutionaries did when they broke with the British order and displaced the British ruling apparatus applied in the colonies and by the social class that had benefited from British authority.9 If the revolutionaries gained their legitimacy by the supposed concrete assent of the People, despite the illegality, some faction would be able to invoke its popular support, “the superior force of an interested and overbearing majority” (1989, p. 57) in order to infringe the new constitutional order. The solution, according to Madison, was to conceive a constitutional device capable of neutralizing the faction and its power to undermine the regime. One might read Madison's proposals as the search for a constitutional design engaged with the aim of preserving the principles of the Revolution, channelling the influence of factions by playing each interest group off against others (see Ackerman, 1993, p. 181). Madison didn't deny the possibility of appealing to the will of the People under the constitutional framework but pleaded to subject such appeal to extraordinary occasions expressed through the constitutional amendment process.
The Federalist constitutional science described by Madison, however, might be shown under another, and darker, narrative: the revolutionary elite, eager to perpetuate its power used constitutionalism to constrain other candidates from speaking in the name of the People. In other terms, the Founders were nothing but a faction; the faction integrated by white male merchants and landowners who had led and won a war and who were trying to exclude other factions from the control of legal authority.
Even though lots of criticism has been expressed in recent decades of the historiographical thesis on the conservative turn among the American elites after the Revolution, more recent approaches remark that the link between the anarchic unravelling of the Confederation and the endorsement of a less egalitarian set
Violence and constituent power in America 111 of constitutional principles by the Federalists “undoubtedly” existed (Nelson, 2014, p. 184). As McIlwain had already pointed out (1923, p. 59) the reaction of the majority of the members of the Philadelphia Convention contained fundamentally an anti-Whig perspective. The Federal Constitution would be the solution that Washington, Madison & Co. would find to the democratic malaise that according to them was devastating the young American experiment.