George Mason and anti-Federalism

Today's rain caused me to stop at Foyle's (not that I need much of an excuse) and I picked up a copy of The Essential Federalist and Anti-Federalist Papers edited by David Wootton. I would have given a lot to have lived in those times, when it seems that the polity was alive with debate about the future direction of what would become the USA. There is a lot, reading arguments on both sides of the federalism debate, that is relevant to both Britain and Europe as they go through constitutional changes and to nascent and emerging democracies.

Anyway, the first paper is George Mason's Objections to the Constitution of Government Formed by the Convention. Reading Mason's Objections, there is a lot to think about that leads me to think that the Constitution of the United States has not been successful - of that more below. A few selected bits:

The President of the United States has no Constitutional Council, a thing unknown in any safe and regular government. He will therefore be unsupported by proper information and advice, and will generally be directed by minions and favorites; or he will become a tool to the Senate--or a Council of State will grow out of the principal officers of the great departments; the worst and most dangerous of all ingredients for such a Council in a free country; From this fatal defect has arisen the improper power of the Senate in the appointment of public officers, and the alarming dependence and connection between that branch of the legislature and the supreme Executive.

Hence also spurring that unnecessary officer the Vice- President, who for want of other employment is made president of the Senate, thereby dangerously blending the executive and legislative powers, besides always giving to some one of the States an unnecessary and unjust pre-eminence over the others.

I cannot help but think of the influence of a particular set of neo-conservative advisers on the current administration - Wolfowitz, Perle and not least Cheney - and the malign effects of there being no-one near the President to 'speak truth to power' save for the sidelined Powell.
Under their own construction of the general clause, at the end of the enumerated powers, the Congress may grant monopolies in trade and commerce, constitute new crimes, inflict unusual and severe punishments, and extend their powers as far as they shall think proper; so that the State legislatures have no security for the powers now presumed to remain to them, or the people for their rights.
In short, Mason's predictions have come to pass. Largely but by no means exclusively through the commerce clause, the power of the federal government against the state has increased dramatically, far beyond what was originally envisioned by either side.
This government will set out a moderate aristocracy: it is at present impossible to foresee whether it will, in its operation, produce a monarchy, or a corrupt, tyrannical aristocracy; it will most probably vibrate some years between the two, and then terminate in the one or the other.
I think that, by the terms as Mason would have used them, we can see a 'corrupt, tyrannical aristocracy' rather than a monarchy. The blurring of the lines between executive and legislative, with many serving or former senators looking at contesting the presidency, is the corrupt - with one eye on the presidency and looking to private interest, senators and representatives will not act in the interests of the states they are meant to represent or the union they are meant to preserve. Indeed, by my count, ten former senators or congresspersons and two former senators have filed papers with the FEC - Republican Senators Brownback and McCain and Representatives Tancredo, Hunter and Paul and Democratic Senators Obama, Clinton, Dodd and Biden and Representative Kucinich, along with various former officeholders.

As to tyrannical, the distance of lawmakers from citizens and the development of an entire apparatus for lobbying for almost every (concentrated) interest under the sun would, I think, fit the description. I think that part of the tyranny complaint is self-perpetuation, which is why Mason and other anti-federalists spoke both of the right of insurrection in certain circumstances and of the fear that a minority - a minority with a privileged position to protect - could use the provisions that protect against a 'tyranny of the majority' to force a 'tyranny of the minority'.

It is an aristocracy in the sense that it is a government of those with arete - the best or most able. However, their interests are not directed to their constituents' need but to their own and to the interests of those about them. Again, self-perpetuation is an issue.

I've been thinking of late as to what extent, by the standards of its framers, the Constitution of the United States is successful or a failure. That particular idea I owe to my friend Jo Kibble. Many moons ago, we had a class together on whether the Attlee government was socialist or not; Jo's argument was that 'socialism is what the Labour party does' and so if the 45-50 administration lived up to its promises, it would have been socialist. Part of this is the mythology that seems to surround the US Constitution. I have heard people say, with absolute seriousness, that the Constitution is 'ordained by God' and there is a lot of cant about the Founding Fathers - the Convention was not people coming together to argue it out, but compromising and fudging, leaving out or delaying some issues (particularly slavery) in a way that the most hardened comitologist would have to admire.

A brief aside on slavery - I understand that while Mason was a slaveowner, he wanted slavery to be abolished but did not want a provision on slavery, either way, to be included in the Constitution, which I read to be, in effect, an argument that the Constitution and, by extension, any constitution should not set policy. In a modern day setting, it would mean that the Constitution could not be used to permit or ban abortion, but also that the Second Amendment would have to be repealed.




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