Alan Gibson (California State University, Department of Political Science) reviews the book by Tax Prof Calvin Johnson (Texas), Righteous Anger at the Wicked States: The Meaning of the Founders’ Constitution (Cambridge University Press, 2005), in 17 Law & Politics Book Review 644 (2010):
University of Texas Law Professor Calvin Johnson’s provocative but deeply flawed book Righteous Anger at the Wicked States is at once a study of the motives that led to the formation of the Constitution and a targeted refutation of the “new federalism” led by Justice Anthony Kennedy. Johnson hammers the following thesis: the original Constitution was “first a pro-tax document written to give the federal government revenue to pay enough of its war debts to restore the public credit” (p.2). The inability of the Confederation government to raise revenue had made orchestration of the Revolutionary war effort excruciating and perilous. It also endangered the union after independence. Paying debts to creditors, especially foreign ones, the Framers realized, was essential to national defense because the United States would doubtlessly be at war and in need of money again. Defaulting on current loans would make future borrowing impossible.
Alone, however, the Framers’ desire to strengthen the national government by adding a power to tax cannot explain the constitutional revolution that culminated in the creation of radically novel, nationalist, tri-partite national government that rested on the sovereignty of the people, acted directly upon individuals, enacted laws that were supreme over the states, and was able to raise its own revenues through taxation. To explain the form and substance of the original Constitution, we have to examine the Framers’ “righteous anger at the wicked states” for their imbecility and indifference to the sacred union. The states had failed to pay requisitions, to provide Washington’s army with food, supplies, or arms, and to pass even the most reasonable remedy to the problem of insufficient revenue: an impost. Other motives that have been used to explain the constitutional revolution of 1787 and the original meaning and purpose of the original Constitution – the desire to regulate commerce, to suppress insurrections, to umpire territory disputes among the states, to protect the interests of creditors – were secondary. …
Johnson may have the right target. The Supreme Court’s “new federalism” may well deny the national government essential powers that it needs to address problems never envisioned by the Framers. The rulings emanating from it may also be poor constitutional rulings, certainly based on a non-originalist interpretation or even a more subtle originalist one. Johnson, however, has not proven this. He has instead given us a flawed and instrumental history of the framing of the Constitution that should be questioned by historians and constitutional theorists alike.
At my invitation, Cal prepared the following response:
I thank Alan Gibson for the many praises he gives to Righteous Anger at the Wicked States: The Meaning of the Founders’ Constitution. I am not persuaded by Professor Gibson’s Anti-Federalism and he still likes positions that I rejected after full and fair consideration. Still he is gracious in his starting descriptions and I thank him for his time. I will take his praise, when he praises Righteous Anger.
When Professor Gibson finds me amiss, I think the book itself is pretty comprehensive rebutal without anything more. Righteous Anger is a $30 book even in paperback but worth every pound.
Righteous Anger quotes the letters for the proposition that Jefferson was a consistent Montesquieuan believing that democracy can survive only in the small republics. Jefferson does have wringles in his thinking, Professor Gibson has found, but he is consistent, spanning the Constituitonal period, in saying that only in a small republic, [i.e., Virginia] can the flame of democracy survive. Righteous Anger quotes the newspaper article in which Madison renounced Federalist 10, and wrote that democracy can prevail only in the homogeneous small republic. Neither of my descriptions is an error. I give lots of quotes, I am told too many quotes, because I thought people might otherwise think I was in error when they wanted me to be in error.
Madison was the source of the move away from the confederate mode of government to a national, three-part government, able to walk on its own legs. He did lose in the Convention on issues important to him, for instance, the Senate, but he really won more than he lost in importance. The biggest victory was of course that there would be a national government supreme over the states, able to raise taxes on its own without ever going back to the states, able to nationalize the state armies and able to enact national laws suppreme over state laws and state constitution, “for the common interest in any case whatsoever.” The only place you can find first drafts or proto-constituion is in Madison’s writing. Only Madison was brave enough to call for the replacement of the Confederation friendship pact among the states with a real national government sovereign over the states.
In Federalist 10, Madison argued that the extended national government would better protect individual rights that than the smaller states. In the smaller states, an oligarchy could prevail and oppress minority rights, much as Patrick Henry had done in Virginia. At the diversified national republic, however, no religious faction or secular faction would be large enough to prevail and each faction would have liberty to follow an independent course. I agree fully with Professor Gibson’s review to the effect that Federalist 10 was less important at the time than we have lately made of it. Arguably only Hamilton was persuaded and he took some time. But Federalist 10 sure is beautiful as an idea that rationalizes the Constituional revolution. If it persuaded Madison only, that would still make it a major intellectual cause of the Constitution. The beauty of the fit between Federalists 10 and the revolution that was accomplished by the Constitution has to count for something.
I think I make the case in Righteous Anger that Shays was better support for the Anti-Federalists’ usuage of it that the States were doing fine than for the Federalist cause. Yes some Federalists cried Wolf early on, but they had gotten over it and calmed down, and nobody was in fact afraid of Shays rebellion by September 1787. The Articles of Confederation had already established a common market, with trivial exceptions, the most important of which, the 1% Virignia impost that included American goods, was an act that Virginia was shamed into repealing by the already established norms of nondiscrimination against out of state Americans. Regulation of commerce is mostly a synonym in the debates for the power to nationalize the state taxes on imports. Proposals to establish navigation laws — statutorily imposed monopolies on shipping or to punish British shipping– were part of “regulation of commerce” goal, but never never came to pass.
I have a long chapter evaluating the program of the Anti-Federalists. The middle Anti-Federalists folded because they wanted Union rather than succession. I find nothing attractive in Anti-Federalists ideology and much key to how they were put together that was quite repulsive. They are anti-tax, anti-Catholic, anti-Semetic and more pro-slavery than the the Federalists. In New York the Anti-Federalist cause was organized around preserving the tax on imports through New York harbor exclusively for selfish state needs and denying the revenue for the desperate needs of the Union. By ratification, the Anti-Federalists lost, praise be the Lord, and they ceased to be appealing enough thereafter to be a banner under which politicians wanting to win could rally. Our continued deification of the Anti-Federalist opponents of the Constitution mystifies me. Similarly, I found nothing plausible or persuasive or appealing in Lance Banning’s life long crusade to say that Madison was never a nationalist and always a Virginia partisan.
Yes, I do believe that the Supreme Court’s current restrictions on the federal government are made-up history. The Constitution as a historical document was a weapon in a war to end the sovereignty of the states and to replace it with a strong self-suffient national government. It is a viciously anti-state document. Perhaps these issues will not be settled here in one review and one rebuttal, but they are important. And still, even after Professor Gibson’s review, the closer one gets to understanding the original constitution, the more nationalistic the Constitution looks.
