After the Founding - The American Spectator | USA News and Politics
After the Founding

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.

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