Empire of Liberty: A History of the Early Republic,
1789-1815
By Gordon S. Wood
(Oxford University Press, 778 pages, $35)
Gordon S. Wood, renowned scholar of the American Revolution, is
professor emeritus at Brown University. In Empire of Liberty: A
History of the Early Republic, 1789-1815, he examines the
major changes that took place in American thought and practice
during the years following ratification of the U.S.
Constitution.
Looking back over two centuries of American history, we tend to
think of the Constitution as a singular accomplishment for which
its proponents must have felt enormous satisfaction. But somewhat
startlingly, Wood reveals that the political and social changes —
expansion of the voter franchise, increases in entrepreneurial
activity, and technological development — that were encouraged by
ratification created a nation and a society that radically
challenged the classical republican vision of the Founders.
Both the Federalists and the Democratic-Republicans were
disappointed at what they had wrought. Wood observes that the
Federalist ideal had been a meritocracy of the rich, the
wise, and the well-born. When it became clear that this would not
be the pattern of American life, he writes, “Many Federalist gentry
turned from party politics to the construction of civic
institutions that could influence the culture — private libraries,
literacy and historical societies, art academies, and professional
associations.”
The Democratic-Republicans, typified by their leader, Thomas
Jefferson, envisioned an agrarian-based society, and were gravely
disappointed at the actual results of their efforts. Wood notes
that Jefferson “loathed the new democratic world that America had
become — a world of speculation, banks, paper money, and
evangelical Christianity; and he railed against the world that was
full of ‘pseudo-citizens…infected with the mania of rambling and
gambling.’ ”
The book provides a fascinating sociological study of the major
forces that helped to define America as a nation distinct from
Europe (especially England). Foremost among those were increased
commerce and western expansion, which together enabled a broader
distribution of wealth, making America into a largely “middle
class” nation. This effectively ended our attachment to the ideals
of the European Enlightenment which, Wood relates, was geared
toward a “sort of enlightened contemplative science which was not
supposed to be connected to the nitty-gritty of life.” Instead,
upward mobility became the primary motivator, eventually giving
rise to the uniquely American philosophies of pragmatism and
libertarianism.
To facilitate the new egalitarian ethos and the proliferation of
wealth, some adjustments had to be made to the nation’s legal
system. Three in particular are noteworthy, because they helped
promote the new capitalist agenda. (They are particularly germane
today, since without them the rule of law and, concomitantly,
American leadership as the world’s premier economic power would not
be possible.)
First, the role of judges in America had to change from the
traditional English concept. In England a magistrate worked to
enforce the laws on behalf of the sovereign (which had made judges
and lawyers particularly odious to American revolutionaries).
Therefore a separate judiciary was created to allow the courts to
act as “independent umpires” in disputes.
To make this fundamental change, Americans had to break the
intellectual hold of English Common Law, which gave judges
inordinate powers of interpretation because of its arcane nature.
Wood says that in order to “circumscribe the much resented judicial
discretion that had been exercised by the royal courts, state
legislatures wrote down the laws in black and white to bring law
into conformity with the emerging American conditions.” Jefferson
hoped that this would make the law reasonable and predictable, and
reduce the function of the judge to that of a “mere machine.”
Such comparative clarity and simplification in the writing of
laws created an atmosphere that promoted private enterprise and the
growth of corporations, eventually making America the world’s
leading capitalist nation. (Whether we can still claim that U.S.
laws are clearer or simpler than their English counterparts is a
matter of considerable debate. One has only to examine the
2,000-plus pages of the recent “ObamaCare” legislation to question
whether modern law writing meets the standard of the
post-ratification period.)
The second crucial change was passage of the Judiciary Act
(1789), which created the three-tiered, hierarchical structure of
the federal court system, giving us district courts, circuit
courts, and the Supreme Court. Wood notes that while this
established the judiciary as one of three branches of federal
government, “it, nevertheless, allowed the existing state courts
concurrently to exercise federal jurisdiction.” This was a
concession to the anti-Federalists, who feared the loss of states’
rights. (Interestingly, it is precisely this point that is at the
heart of the current furor over Arizona’s recent legislation
calling for state enforcement of U.S. immigration laws. It seems
that historically and legally Arizona has a case.)
The third innovation was the concept of judicial review. The
judiciary had been conceived as the weakest branch of the federal
government. But, established by Chief Justice John Marshall in the
case of Marbury v. Madison (1803), the power to determine
whether laws were constitutional greatly enhanced the Supreme
Court’s role in government.
The full impact of this power wasn’t felt until the 20th century
with the emergence of judicial activism. Conservatives continually
bemoan this overreach, whereby judges and justices adjudicate law
not in light of any original intent on the part of the
Constitution’s authors, but by making legal adaptations to address
current social realities or to rectify perceived injustices.
(Retired justice David Souter made this kind of unfettered
jurisprudence the basic premise of his recent Harvard commencement
speech.) Such legal flexibility — not to say
improvisation — endangers constitutional rights by
replacing the rule of law with rule by judges.
AT A TIME WHEN our country is experiencing the unexpected
effects of a widespread but vaguely defined call for “change,” Wood
recalls an earlier period when America witnessed the transformative
power of social trends. It also reminds us that rights can be
eroded if we are not vigilant. And it raises a number of questions
that must be answered if Americans are to retain the freedoms that
made our nation rich and powerful — among them: Is a proposed
change consistent with the Constitution? Does government
intervention limit creativity and liberty? Can average citizens
discern the purpose and parameters of a particular piece of
legislation? And finally, if the courts act as a vehicle for social
engineering, will the “Empire of Liberty” envisioned by Jefferson
be lost?
Wood’s book is a primer for anyone interested in America’s past,
but even more so, for those concerned with its future.
