Show notes
Brian Smith: Welcome to Liberty Law Talk. My name is Brian Smith. I am the editor of Law and Liberty. With me today, I am very pleased to have Gordon Wood, who is the Alva O. Way University professor, and professor of History Emeritus at Brown University. The author of 10 books, including most recently, Power and Liberty: Constitutionalism in the American Revolution. He is the recipient of numerous awards, including the Pulitzer and Bancroft Prizes, as well as the National Humanities Medal. Gordon, thank you for joining me. Gordon Wood: My pleasure. Brian Smith: So, I wanted to have you on the podcast today, specifically to talk about Power and Liberty, which as I understand it began as a lecture you gave at Northwestern’s Law School. So, I wanted to ask, how did the themes of that lecture inspire the book? And what was your aim in writing it? Gordon Wood: Actually, it was a series of lectures, a half dozen lectures that I gave at a school, I think, in the fall of 2019. And as we got into the COVID period, I had these lectures, and I thought maybe I should try to publish them. And so, that’s what led to the publication. I hadn’t really thought about that when I was giving the lectures, but it worked out nicely. Brian Smith: So, what was your goal in presenting a condensed version of your entire sweep of scholarship about constitutionalism? What were the key things that you thought needed recapitulation right now, that you were aiming to give your audience? Gordon Wood: Well, although the lectures pretty much summed up my thinking over the past half century on the constitutional issues, I hadn’t actually put them into this form, in print, at least. So, I thought that this was a good way of conveying my thinking, starting with the imperial crisis, going on to the constitution making at the state level, which is what they aim for. The United States, literally was 13 states at the outset in 1776, and each of those states wrote its own constitution. And then, having to explain the origins of the federal constitution, which [inaudible 00:02:39] granted, but they certainly hadn’t anticipated. I ended with the issue of private versus public, which helps explain the beginnings of the corporation. And then, I had a final epilogue on Rhode Island, my own home state, which suggested the middle class world that emerged following the revolution. So, all of that fit together, and it was what I wanted to say coming up my career. Brian Smith: So, I really specifically wanted to ask you about Rhode Island. It was a very striking epilogue, and I think a very surprising one. So, what was really special about Rhode Island at the founding? What made them stand out and can you say more about that analog between their middle class world and ours? Gordon Wood: That’s exactly right. They were a middle class society that probably of all the states, certainly the most middle class, that is to say they had the weakest aristocracy. And right from the beginning, they never were able to establish even a semblance of an aristocracy in their state. And as a consequence, they were very entrepreneurial minded, go looking for the fast money. And they were involved, of course, in slave trade, drum making, and all of that. But I think it’s the middle class nature of the society that… And of course, they were involved in paper money, which is, they had 11 issues, I think, of paper money as a colony. And this was far in excessive what any other colony did. And that paper money was capital, if you will. And they continued that after the revolution. They were the only state that refused to attend the Federal Convention in Philadelphia in 1787. So for a host of reasons, Rhode Island was interesting. James Madison, in his small little essay that he wrote, a working paper for his ideas about the new Federal Constitution, isolated only one state that he complained about. And that, of course, was Rhode Island, mainly for its issuing of paper money which created inflation and hurt creditors. And Madison’s whole structure was designed to protect minorities from majority overreach, or majority tyranny. And Rhode Island was the example that he used of this democracy run wild. So, for a host of reasons, Rhode Island was interesting. And, of course, Rhode Island went on in the nineteenth century to become an economic powerhouse. By the end of the century, they had five leading manufacturing firms in the world, were located in this tiny little state. So, there’s a host of reasons why they picked Rhode Island as an example of the middle class society that really came to dominate the north. Brian Smith: Yeah, it was a fascinating example of how banking and credit have these long-tailed effects that you- Gordon Wood: And, of course, it was not at all anticipated by the founders. Brian Smith: Exactly. And as you say, none of them really understood how complex and rich that network of commercial exchanges really were, or how they depended upon the relatively easy money that paper notes allowed. Gordon Wood: None of the founders really, except for Hamilton, understood what a bank was anyhow. Adams never did. Jefferson never did. But Hamilton knew what a bank was, but he was unusual. But what Madison wanted in constitution was a veto given to the Congress over all state legislation. That’s so impractical. Can you imagine if they had stayed in all bills that the states wanted to pass would have to be sent to Washington, and having hearings, and the Congress would have to approve them? Well, that was Madison’s proposal. He was so frightened at what the states were doing. Well, that was so impractical that they mentioned, threw it out, and had substituted Article one Section 10 of the Constitution, which lists a number of prohibitions on what the states can do. Namely, they cannot print paper money. Well, if that had been enforced rigidly, it would’ve stifled the antebellum economy. States get around that by chartering banks, which in turn issued the paper money. And, of course, there were probably hundreds of banks. And by the eve of the Civil War there were 10,000, probably 10,000 different paper currencies. It was just chaos. And of course the Civil War ended all that. The federal government shoot its own greenbacks, as we do today, and taxed the state banks out of business. But up to that time there was just these state banks issuing currency, and it must have been intolerable as a businessman to deal with this. You’re in Providence, in Rhode Island, and you get a bank note from the first Bank of Nashville, Tennessee. What do you do? Well, probably if you wanted to take it, you’d probably discount it because it’s so far away. The bank note would say, “We, the Bank of Nashville promise to pay the bearer $100 in gold or silver,” but you’re not going to go to Nashville. So you take the note, discount it, give the person $90 worth of goods, and then hope you can pass it on to somebody else. That’s the way it worked. It must have been very chaotic. Brian Smith: So, I wonder if we can rewind a bit though. I jumped the gun a bit, just out of excitement because I wanted to hear more about Rhode Island. But I wonder if we could go back to the beginning, and talk a bit about sovereignty. So, you say that defining who was sovereign was the issue that finally broke up the empire in the… Can you explain that a bit? Gordon Wood: Yes. Well, the imperial debate started over an issue of representation, where the parliament issued a stamp tax. Parliament said, “You can’t tax us. We didn’t give consent to that.” And the British responded by saying, “Oh yes, you were. You were virtually represented in the House of Commons.” And the Americans said, “We don’t like this virtual representation, we’ll have none of it.” But the issue then moved to the issue of sovereignty, which was something that the English and Blackstone, the great legal jurist had worked out. Although he didn’t invent it, he put it into his book published in 1765, that there must be in every state, one final supreme lawmaking authority. And in the British constitution, that authority rests in parliament, and there can be no deviation from that. There has to be that final authority. And the Americans kept saying, “Well, no, we want to divide authority. You have some authority over us, yes, for trade purposes and so on, but we don’t want you to have the right to access.” And the British responded in the following fashion. They said, “If you deny parliament’s authority in one aspect, you have to deny it entirely. You have to accept parliament’s authority, it’s final authority.” And when confronted with that choice, by the end of the 1760s, 1770, the columnist responded to say, “Well, if that’s the case, we’re independent of parliament, and we’re tied only to the king.” And they worked out in a series of pamphlets written by all of the major founders, Jeff Adams, all wrote pamphlets saying, creating what I would currently called the Commonwealth theory of the Empire, similar to the modern Commonwealth, that is to say Canada, Australia, New Zealand, are tied to the British nation by the Crown only. And each of their parliaments are independent. Something worked out in the twentieth century, 1931. So, that’s the position the colonists are forced into by the early 70s, that they are tied only to the Crown. And of course by English standards, this was just, because we, Americans, can’t fully appreciate it. But Parliament represented such a liberty loving, it was the source of English liberty. It was the bastion of freedom against the Crown. The Crown was the source of tyranny. And through history, especially from the seventeenth century on, parliament had come to the side, or to rescue the people from the tyranny of the Crown. So, for the colonists to take on parliament, was to create a confusing situation for the British. They thought the Americans must be Tories. That is to say not good wigs. Wigs being the people who support parliament and support liberty, support all of the things that parliament did, especially the glorious revolution of 1608. So, the Americans are forced into a very peculiar position, in terms of fish culture, where they’re opposing the bastion freedom that is parliament, and are tying themselves to the Crown, which is the source of purity. And from the British point of view, it was totally confusing. North said, “They’re just a bunch of Tories, these Americans, what are they doing?” Brian Smith: But at some point though, in this narrative, a concept of sovereignty resting in the people emerges to replace the sovereignty of the king. When did that happen? Gordon Wood: Well, you see, when we get to the Federal Constitution, there’s opposition from the anti-federalists, and large opposition. The country was really divided. In fact, if they’d been a poll taken, the Constitution needed. It was an unusual situation. This was an unanticipated creation, this federal government. And the anti-federalists raised the issue of sovereignty. They said, “Look, sovereignty says, the doctrine says, there must be in every state, one final supreme lawmaking authority. And we can look at this constitution and its supremacy clause, that’s going to be the Federal Congress, and our states, which will be reduced to nothing, to measuring the height of fence posts and laying out roads. And that’s all states will have to do. This is intolerable for us.” And it was a very embarrassing argument for the Federalists, which is the name that the supporters of the Constitution took. They were awkward. They said, “Well no, we’re going to divide power. Some power’s going to be given to the federal government, some powers will remain with the states.” But the anti-federalists, just the way the British had, just came back over and over again, so there must be in every state. And they invoked this doctrine of sovereignty. And it’s James Wilson, who is, I think, relatively unrecognized founder, very smart Scotsman, who had immigrated to the colonies as a young man. He was a graduate of St. Andrews in Scotland. He comes up with a solution. He says, “We’re going to relocate sovereignty in the people.” Now, this isn’t just meaning that powers all derive from the people. And all good wigs in England believe that, saying that this actual law making authority, final supreme power, rests in the people. And they’re doling out bits and pieces of it to the different agents, some to the federal government agents, and some to the states. And once that idea, he did it in a lecture he gave out of doors, and then also repeated it in the Pennsylvania Ratifying Convention. And once Madison and others heard this, they said, “Ah, that’s all we need. That solves all of our problems, all of our intellectual problems, this doctrine of sovereignty resting in the people.” And so, that’s the origins of it. Brian Smith: So, that’s really interesting. But prior to this, you say that one of the other great innovations in the Americas, is the move to written constitutionalism. And while these don’t exactly evolve in parallel, it is this very unprecedented move, which you’re right to point out. What do you think drove this desire to move away from the unwritten English Constitution and into a written series of documents that we could use to understand our political process and its parameters? Gordon Wood: Well, it’s true. The English did not have a written constitution, and still don’t have. It’s very unusual. I guess Israel’s the only other state with England that doesn’t have a… But England did have a lot of written documents, and starting with Magna Carta in the thirteenth century, and all the way up through the Bill for Habeas Corpus, and then of course the Bill of Rights of 1688, ’89, those were all written documents. You write things down when you’re not sure that when you want to make them clear, and assert their strength by writing them down. That’s why we have written contracts. And so, that’s what they thought they were doing. And of course, England briefly had a written constitution in the middle with the Cromwell, and the little experiment in Republicanism that England had. But there was nothing like what took place in 1776. Each of those states wrote its constitution. And it’s hard for us to understand, but the states were independent. They had a significance for each [inaudible 00:18:29], the people who lived in the states, that’s difficult for us to appreciate. We think of the states more as ministry of units. But think back, Massachusetts had a hundred and some years, 50 years of history. Virginia had the same thing. So, when Jefferson said, “My country,” he didn’t think of the United States as his country. It was Virginia. And when John Adams said, “My country,” he meant Massachusetts. So, you have to think of the articles of consideration, which is the first treaty that holds these states together, like the EU today. We know there’s an EU, but how much do people think of themselves as Europeans? Frenchmen think of themselves as French, and the Germans say, “Well, we’re Germans.” But there is this thing called the EU, and to some extent they are aware of a Europeanness, and that’s a best way of understanding how Americans thought of themselves. They did talk about themselves as Americans, but they also knew that they were the citizens of Massachusetts, or Pennsylvania, or Virginia. And so that first tree, like the EU, the articles were based on a treaty of these 13 states coming together. And each of them had its own constitution. So, moving to the Federal Constitution 10 years later, was something nobody anticipated, 1776, not a single person even raised the idea of such a strong federal or national government in 1776. Brian Smith: No, you do a really interesting presentation in the book of how surprised everyone was that it didn’t come out of imminent crisis, that we built this new constitution. It wasn’t quite accidental the way you present…
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