AN ECONOMIC INTERPRETATION OF THE CONSTITUTION OF THE UNITED STATES
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AN ECONOMIC INTERPRETATION OF THE CONSTITUTION OF THE UNITED STATES
BY
CHARLES A. BEARD
ASSOCIATE PROFESSOR OF POLITICS IN COLUMBIA UNIVERSITY
New York
THE MACMILLAN COMPANY
1914
_All rights reserved_
COPYRIGHT, 1913,
BY THE MACMILLAN COMPANY.
Set up and electrotyped. Published April, 1913. Reprinted July, 1914.
Norwood Press
J. S. Cushing Co.—Berwick & Smith Co.
Norwood, Mass., U.S.A.
PREFACE
The following pages are frankly fragmentary. They are designed to
suggest new lines of historical research rather than to treat the
subject in an exhaustive fashion. This apology is not intended as an
anticipation of the criticism of reviewers, but as a confession of fact.
No one can appreciate more fully than I do how much of the work here
outlined remains to be done. The records of the Treasury Department at
Washington, now used for the first time in connection with a study of
the formation of the Constitution, furnish a field for many years’
research, to say nothing of the other records, printed and unprinted,
which throw light upon the economic conditions of the United States
between 1783–1787.
If it be asked why such a fragmentary study is printed now, rather than
held for the final word, my explanation is brief. I am unable to give
more than an occasional period to uninterrupted studies, and I cannot
expect, therefore, to complete within a reasonable time the survey which
I have made here. Accordingly, I print it in the hope that a few of this
generation of historical scholars may be encouraged to turn away from
barren “political” history to a study of the real economic forces which
condition great movements in politics.
Students already familiar with the field here surveyed will discover
that I have made full use of the suggestive work already done by
Professor Turner, Drs. Libby, Ambler, and Schaper.
I am indebted to Mr. Merwin of the Treasury Department for his great
courtesy in making available the old records under his jurisdiction; to
Mr. Bishop, of the Library of Congress, for facilitating the examination
of thousands of pamphlets as well as for other favors; and to Mr.
Fitzpatrick, of the Manuscript Division, for keeping his good humor
while bringing out hundreds of manuscripts which seemed to yield results
wholly out of proportion to the labor entailed.
I am under deep obligation to two friends, nameless here, without whose
generous sympathy and encouragement, this volume could not have been
written.
CHARLES A. BEARD.
WASHINGTON, D.C.,
February, 1913.
CONTENTS
CHAPTER PAGE
I. HISTORICAL INTERPRETATION IN THE UNITED STATES 1
II. A SURVEY OF ECONOMIC INTERESTS IN 1787 19
III. THE MOVEMENT FOR THE CONSTITUTION 52
IV. PROPERTY SAFEGUARDS IN THE ELECTION OF DELEGATES 64
V. THE ECONOMIC INTERESTS OF THE MEMBERS OF THE CONVENTION 73
VI. THE CONSTITUTION AS AN ECONOMIC DOCUMENT 152
VII. THE POLITICAL DOCTRINES OF THE MEMBERS OF THE CONVENTION 189
VIII. THE PROCESS OF RATIFICATION 217
IX. THE POPULAR VOTE ON THE CONSTITUTION 239
X. THE ECONOMICS OF THE VOTE ON THE CONSTITUTION 253
XI. THE ECONOMIC CONFLICT OVER RATIFICATION AS VIEWED BY CONTEMPORARIES 292
AN ECONOMIC INTERPRETATION OF THE CONSTITUTION OF THE UNITED STATES
CHAPTER I
HISTORICAL INTERPRETATION IN THE UNITED STATES
Broadly speaking, three schools of interpretation have dominated
American historical research and generalization. The first of these,
which may be justly associated with the name of Bancroft, explains the
larger achievements in our national life by reference to the peculiar
moral endowments of a people acting under divine guidance; or perhaps it
would be more correct to say, it sees in the course of our development
the working out of a higher will than that of man. There is to be
observed in the history of the struggle for the Constitution, to use
Bancroft’s words, “the movement of the divine power which gives unity to
the universe, and order and connection to events.”[1]
Notwithstanding such statements, scattered through Bancroft’s pages, it
is impossible to describe in a single phrase the ideal that controlled
his principles of historical construction, because he was so often
swayed by his deference to the susceptibilities of the social class from
which he sprang and by the exigencies of the public life in which he
played a by no means inconspicuous part. Even telling the whole truth
did not lie upon his conscience, for, speaking on the question of the
number of Americans who were descendants from transported felons and
indented servants, he said that “Having a hand full, he opened his
little finger.”[2]
Nevertheless, Bancroft constantly recurs in his writings to that “higher
power” which is operating in human affairs, although he avoids citing
specific events which may be attributed to it. It appears to him to be
the whole course of history, rather than any event or set of events,
which justifies his theory. “However great,” he says, “may be the number
of those who persuade themselves that there is in man nothing superior
to himself, history interposes with evidence that tyranny and wrong lead
inevitably to decay; that freedom and right, however hard may be the
struggle, always prove resistless. Through this assurance ancient
nations learn to renew their youth; the rising generation is incited to
take a generous part in the grand drama of time; and old age, staying
itself upon sweet Hope as its companion and cherisher, not bating a jot
of courage, nor seeing cause to argue against the hand or the will of a
higher power, stands waiting in the tranquil conviction that the path of
humanity is still fresh with the dews of morning, that the Redeemer of
the nations liveth.”[3]
The second school of historical interpretation, which in the order of
time followed that of Bancroft, may be called the Teutonic, because it
ascribes the wonderful achievements of the English-speaking peoples to
the peculiar political genius of the Germanic race. Without distinctly
repudiating the doctrine of the “higher power” in history, it finds the
secret to the “free” institutional development of the Anglo-Saxon world
in innate racial qualities.
The thesis of this school is, in brief, as follows. The Teutonic peoples
were originally endowed with singular political talents and aptitudes;
Teutonic tribes invaded England and destroyed the last vestiges of the
older Roman and British culture; they then set an example to the world
in the development of “free” government. Descendants of this specially
gifted race settled America and fashioned their institutions after old
English models. The full fruition of their political genius was reached
in the creation of the Federal Constitution.
For more than a generation the Teutonic theory of our institutions
deeply influenced historical research in the United States; but it was
exhausted in the study of local government rather than of great epochs;
and it produced no monument of erudition comparable to Stubbs’
_Constitutional History of England_. Whatever may be said of this
school, which has its historical explanation and justification,[4] it
served one exceedingly useful purpose: it was scrupulously careful in
the documentation of its preconceptions and thus cultivated a more
critical spirit than that which characterized the older historians.[5]
The third school of historical research is not to be characterized by
any phrase. It is marked rather by an absence of hypotheses. Its
representatives, seeing the many pitfalls which beset the way of earlier
writers, have resolutely turned aside from “interpretation” in the
larger sense, and concerned themselves with critical editions of the
documents and with the “impartial” presentation of related facts. This
tendency in American scholarship has been fruitful in its results, for
it has produced more care in the use of historical sources and has given
us many excellent and accurate surveys of outward events which are
indispensable to the student who would inquire more deeply into
underlying causes.[6]
Such historical writing, however, bears somewhat the same relation to
scientific history which systematic botany bears to ecology; that is, it
classifies and orders phenomena, but does not explain their proximate or
remote causes and relations. The predominance of such a historical ideal
in the United States and elsewhere is not altogether inexplicable; for
interpretative schools seem always to originate in social
antagonisms.[7] The monarchy, in its rise and development, was never
correctly understood as long as it was regarded by all as a mystery
which must not be waded into, as James I put it, by ordinary mortals.
Without the old régime there would have been no Turgot and Voltaire;
Metternich and Joseph de Maistre came after the Revolution.
But the origin of different schools of interpretation in controversies
and the prevalence of many mere preconceptions bolstered with a show of
learning should not lead us to reject without examination any new
hypothesis, such as the theory of economic determinism, on the general
assumption of Pascal “that the will, the imagination, the disorders of
the body, the thousand concealed infirmities of the intelligence
conspire to reduce our discovery of justice and truth to a process of
haphazard, in which we more often miss than hit the mark.” Such a
doctrine of pessimism would make of equal value for the student who
would understand, for instance, such an important matter as the origin
of the state, Mr. Edward Jenk’s severely scientific _History of
Politics_ and Dr. Nathaniel Johnston’s _The Excellency of Monarchical
Government, especially the English Monarchy, wherein is largely treated
of the Several Benefits of Kingly Government and the Inconvenience of
Commonwealths.... Likewise the Duty of Subjects and the Mischief of
Faction, Sedition, and Rebellion_, published in 1686.
It is not without significance, however, that almost the only work in
economic interpretation which has been done in the United States seems
to have been inspired at the University of Wisconsin by Professor
Turner, now of Harvard. Under the direction of this original scholar and
thinker, the influence of the material circumstances of the frontier on
American politics was first clearly pointed out. Under his direction
also the most important single contribution to the interpretation of the
movement for the federal Constitution was made: O. G. Libby’s
_Geographical Distribution of the Vote of the Thirteen States on the
Federal Constitution_.
In a preface to this work, Professor Turner remarks that the study was
designed to contribute “to an understanding of the relations between the
political history of the United States, and the physiographic, social,
and economic conditions underlying this history.... It is believed that
many phases of our political history have been obscured by the attention
paid to state boundaries and to the sectional lines of North and South.
At the same time the economic interpretation of our history has been
neglected. In the study of the persistence of the struggle for state
particularism in American constitutional history, it was inevitable that
writers should make prominent the state as a political factor. But, from
the point of view of the rise and growth of sectionalism and
nationalism, it is much more important to note the existence of great
social and economic areas, independent of state lines, which have acted
as units in political history, and which have changed their political
attitude as they changed their economic organization and divided into
new groups.”[8]
Although the hypothesis that economic elements are the chief factors in
the development of political institutions has thus been used in one or
two serious works, and has been more or less discussed as a philosophic
theory,[9] it has not been applied to the study of American history at
large—certainly not with that infinite detailed analysis which it
requires. Nor has it received at the hands of professed historians that
attention which its significance warrants. On the contrary, there has
been a tendency to treat it with scant courtesy and to dismiss it with a
sharpness bordering on contempt.[10] Such summary judgment is, of
course, wholly unwarranted and premature; for as Dr. William Cunningham
remarks, the validity of no hypothesis can be determined until it has
been worked to its utmost limits. It is easier to write a bulky volume
from statutes, congressional debates,[11] memoirs, and diplomatic notes
than it is to ascertain the geographical distribution and political
significance of any important group of economic factors. The theory of
economic determinism has not been tried out in American history, and
until it is tried out, it cannot be found wanting.
Sadly as the economic factors have been ignored in historical studies,
the neglect has been all the more pronounced in the field of private and
public law. The reason for this is apparent. The aim of instruction in
these subjects is intensely practical; there are few research
professorships in law; and the “case” system of teaching discourages
attempts at generalization and surveys.[12] Not even the elementary work
has been done. There has been no generous effort to describe the merely
superficial aspects of the development of private law in the United
States. There has been no concerted attempt to bring together and make
available to students the raw materials of such a history. Most of the
current views on the history of our law are derived from occasional
disquisitions of judges which are all too frequently shot through with
curious errors of fact and conception.
Nor has England advanced far beyond us in the critical interpretation of
legal evolution—its explanation in terms of, or in relation to, the
shifting economic processes and methods in which the law is tangled. It
is true that English scholars have produced admirable histories of the
law in its outward aspects, such as the monumental work of Pollock and
Maitland; and they have made marvellous collections of raw materials,
like the publications of the Selden Society. But apart from scattered
and brilliant suggestions thrown off occasionally by Maitland[13] in
passing, no interpretation has been ventured, and no effort has been
made to connect legal phases with economic changes.
In the absence of a critical analysis of legal evolution, all sorts of
vague abstractions dominate most of the thinking that is done in the
field of law. The characteristic view of the subject taken by American
commentators and lawyers immersed in practical affairs is perhaps summed
up as finely by Carter as by any writer. “In free, popular states,” he
says, “the law springs from and is made by the people; and as the
process of building it up consists in applying, from time to time, to
human actions the popular ideal or standard of justice, justice is only
interest consulted in the work.... The law of England and America has
been a pure development proceeding from a constant endeavor to apply to
the civil conduct of men the ever advancing standard of justice.”[14] In
other words, law is made out of some abstract stuff known as “justice.”
What set the standard in the beginning and why does it advance?
The devotion to deductions from “principles” exemplified in particular
cases, which is such a distinguishing sign of American legal thinking,
has the same effect upon correct analysis which the adherence to
abstract terms had upon the advancement of learning—as pointed out by
Bacon. The absence of any consideration of the social and economic
elements determining the thought of the thinkers themselves is all the
more marked when contrasted with the penetration shown by European
savants like Jhering, Menger, and Stammler. Indeed, almost the only
indication of a possible economic interpretation to be found in current
American jurisprudence is implicit in the writings of a few scholars,
like Professor Roscoe Pound and Professor Goodnow,[15] and in occasional
opinions rendered by Mr. Justice Holmes of the Supreme Court of the
United States.[16]
What has here been said about our private law may be more than repeated
about our constitutional history and law. This subject, though it has
long held an honorable position in the American scheme of learning, has
not yet received the analytical study which its intrinsic importance
merits. In the past, it has often been taught in the law schools by
retired judges who treated it as a branch of natural and moral
philosophy or by practical lawyers who took care for the instant need of
things. Our great commentaries, Kent, Story, Miller, are never
penetrating; they are generally confined to statements of fact; and
designed to inculcate the spirit of reverence rather than of
understanding. And of constitutional histories, strictly speaking, we
have none, except the surveys of superficial aspects by Curtis and
Bancroft.
In fact, the juristic theory of the origin and nature of the
Constitution is marked by the same lack of analysis of determining
forces which characterized older historical writing in general. It may
be stated in the following manner: The Constitution proceeds from the
whole people; the people are the original source of all political
authority exercised under it; it is founded on broad general principles
of liberty and government entertained, for some reason, by the whole
people and having no reference to the interest or advantage of any
particular group or class. “By calm meditation and friendly councils,”
says Bancroft, “they [the people] had prepared a Constitution which, in
the union of freedom with strength and order, excelled every one known
before.... In the happy morning of their existence as one of the powers
of the world, they had chosen justice for their guide; and while they
proceeded on their way with a well-founded confidence and joy, all the
friends of mankind invoked success on their endeavor as the only hope
for renovating the life of the civilized world.”[17]
With less exaltation, Chief Justice Marshall states the theory, in his
opinion in the case of McCulloch _v._ Maryland: “The government proceeds
directly from the people; is ‘ordained and established’ in the name of
the people; and is declared to be ordained ‘in order to form a more
perfect union, to establish justice, insure domestic tranquillity, and
secure the blessings of liberty’ to themselves and to their posterity.
The assent of the states, in their sovereign capacity, is implied in
calling a convention, and thus submitting that instrument to the people.
But the people were at perfect liberty to accept or reject it; and their
act was final.... The government of the Union, then (whatever may be the
influence of this fact on the case) is emphatically and truly a
government of the people. In form and in substance it emanates from
them. Its powers are granted by them, and are to be exercised directly
on them, and for their benefit.... It is the government of all; its
powers are delegated by all; it represents all, and acts for all.”[18]
In the juristic view, the Constitution is not only the work of the whole
people, but it also bears in it no traces of the party conflict from
which it emerged. Take, for example, any of the traditional legal
definitions of the Constitution; Miller’s will suffice: “A constitution,
in the American sense of the word, is any instrument by which the
fundamental powers of the government are established, limited, and
defined, and by which these powers are distributed among the several
departments for their more safe and useful exercise, for the benefit of
the body politic.... It is not, however, the origin of private rights,
nor the foundation of laws. It is not the cause, but the consequence of
personal and political freedom. It declares those natural and
fundamental rights of individuals, for the security and common enjoyment
of which governments are established.”[19]
Nowhere in the commentaries is there any evidence of the fact that the
rules of our fundamental law are designed to protect any class in its
rights, or secure the property of one group against the assaults of
another. “The Constitution,” declares Bancroft, “establishes nothing
that interferes with equality and individuality. It knows nothing of
differences by descent, or opinions, of favored classes, or legalized
religion, or the political power of property. It leaves the individual
along-side of the individual.... As the sea is made up of drops,
American society is composed of separate, free, and constantly moving
atoms, ever in reciprocal action ... so that the institutions and laws
of the country rise out of the masses of individual thought, which, like
the waters of the ocean, are rolling evermore.”[20]
In turning from the vague phraseology of Bancroft to an economic
interpretation of constitutional history, it is necessary to realize at
the outset that law is not an abstract thing, a printed page, a volume
of statutes, a statement by a judge. So far as it becomes of any
consequence to the observer it must take on a real form; it must govern
actions; it must determine positive relations between men; it must
prescribe processes and juxtapositions.[21] A statute may be on the
books for an age, but unless, under its provisions, a determinate
arrangement of human relations is brought about or maintained, it exists
only in the imagination. Separated from the social and economic fabric
by which it is, in part, conditioned and which, in turn, it helps to
condition, it has no reality.
Now, most of the law (except the elemental law of community defence) is
concerned with the property relations of men, which reduced to their
simple terms mean the processes by which the ownership of concrete forms
of property is determined or passes from one person to another. As
society becomes more settled and industrial in character, mere defence
against violence (a very considerable portion of which originates in
forcible attempts to change the ownership of property) becomes of
relatively less importance; and property relations increase in
complexity and subtlety.
But it may be said that constitutional law is a peculiar branch of the
law; that it is not concerned primarily with property or with property
relations, but with organs of government, the suffrage, administration.
The superficiality of this view becomes apparent at a second glance.
Inasmuch as the primary object of a government, beyond the mere
repression of physical violence, is the making of the rules which
determine the property relations of members of society, the dominant
classes whose rights are thus to be determined must perforce obtain from
the government such rules as are consonant with the larger interests
necessary to the continuance of their economic processes, or they must
themselves control the organs of government. In a stable despotism the
former takes place; under any other system of government, where
political power is shared by any portion of the population, the methods
and nature of this control become the problem of prime importance—in
fact, the fundamental problem in constitutional law. The social
structure by which one type of legislation is secured and another
prevented—that is, the constitution—is a secondary or derivative feature
arising from the nature of the economic groups seeking positive action
and negative restraint.
In what has just been said there is nothing new to scholars who have
given any attention to European writings on jurisprudence. It is based
in the first instance on the doctrine advanced by Jhering that law does
not “grow,” but is, in fact, “made”—adapted to precise interests which
may be objectively determined.[22] It was not original with Jhering.
Long before he worked out the concept in his epoch-making book, _Der
Zweck im Recht_, Lassalle had set it forth in his elaborate _Das System
der erworbenen Rechte_,[23] and long before Lassalle had thought it
through, our own Madison had formulated it, after the most wide-reaching
researches in history and politics.[24]
In fact, the inquiry which follows is based upon the political science
of James Madison, the father of the Constitution and later President of
the Union he had done so much to create. This political science runs
through all of his really serious writings and is formulated in its most
precise fashion in _The Federalist_[25] as follows: “The diversity in
the faculties of men, from which the rights of property originate, is
not less an insuperable obstacle to a uniformity of interests. The
protection of these faculties is the first object of government. From
the protection of different and unequal faculties of acquiring property,
the possession of different degrees and kinds of property immediately
results; and from the influence of these on the sentiments and views of
the respective proprietors, ensues a division of society into different
interests and parties.... The most common and durable source of factions
has been the various and unequal distribution of property. Those who
hold and those who are without property have ever formed distinct
interests in society. Those who are creditors, and those who are
debtors, fall under a like discrimination. A landed interest, a
manufacturing interest, a mercantile interest, a moneyed interest, with
many lesser interests, grow up of necessity in civilized nations and
divide them into different classes, actuated by different sentiments and
views. The regulation of these various and interfering interests forms
the principal task of modern legislation, and involves the spirit of
party and faction in the necessary and ordinary operations of the
government.”
Here we have a masterly statement of the theory of economic determinism
in politics.[26] Different degrees and kinds of property inevitably
exist in modern society; party doctrines and “principles” originate in
the sentiments and views which the possession of various kinds of
property creates in the minds of the possessors; class and group
divisions based on property lie at the basis of modern government; and
politics and constitutional law are inevitably a reflex of these
contending interests. Those who are inclined to repudiate the hypothesis
of economic determinism as a European importation must, therefore,
revise their views, on learning that one of the earliest, and certainly
one of the clearest, statements of it came from a profound student of
politics who sat in the Convention that framed our fundamental law.
The requirements for an economic interpretation of the formation and
adoption of the Constitution may be stated in a hypothetical proposition
which, although it cannot be verified absolutely from ascertainable
data, will at once illustrate the problem and furnish a guide to
research and generalization.
It will be admitted without controversy that the Constitution was the
creation of a certain number of men, and it was opposed by a certain
number of men. Now, if it were possible to have an economic biography of
all those connected with its framing and adoption,—perhaps about 160,000
men altogether,—the materials for scientific analysis and classification
would be available. Such an economic biography would include a list of
the real and personal property owned by all of these men and their
families: lands and houses, with incumbrances, money at interest,
slaves, capital invested in shipping and manufacturing, and in state and
continental securities.
Suppose it could be shown from the classification of the men who
supported and opposed the Constitution that there was no line of
property division at all; that is, that men owning substantially the
same amounts of the same kinds of property were equally divided on the
matter of adoption or rejection—it would then become apparent that the
Constitution had no ascertainable relation to economic groups or
classes, but was the product of some abstract causes remote from the
chief business of life—gaining a livelihood.
Suppose, on the other hand, that substantially all of the merchants,
money lenders, security holders, manufacturers, shippers, capitalists,
and financiers and their professional associates are to be found on one
side in support of the Constitution and that substantially all or the
major portion of the opposition came from the non-slaveholding farmers
and the debtors—would it not be pretty conclusively demonstrated that
our fundamental law was not the product of an abstraction known as “the
whole people,” but of a group of economic interests which must have
expected beneficial results from its adoption? Obviously all the facts
here desired cannot be discovered, but the data presented in the
following chapters bear out the latter hypothesis, and thus a reasonable
presumption in favor of the theory is created.
Of course, it may be shown (and perhaps can be shown) that the farmers
and debtors who opposed the Constitution were, in fact, benefited by the
general improvement which resulted from its adoption. It may likewise be
shown, to take an extreme case, that the English nation derived immense
advantages from the Norman Conquest and the orderly administrative
processes which were introduced, as it undoubtedly did; nevertheless, it
does not follow that the vague thing known as “the advancement of
general welfare” or some abstraction known as “justice” was the
immediate, guiding purpose of the leaders in either of these great
historic changes. The point is, that the direct, impelling motive in
both cases was the economic advantages which the beneficiaries expected
would accrue to themselves first, from their action. Further than this,
economic interpretation cannot go. It may be that some larger
world-process is working through each series of historical events; but
ultimate causes lie beyond our horizon.