By Will Bellaimey with Elizabeth Gracen:
We are living in a time of rapid change and massive uncertainty. Nobody knows what will happen in the next week, much less in the next month or the next year. But what is already clear is that this is a moment of transformation in terms of the relationship between the people and their government, both in the United States and around the world. Moments of crisis and mass mobilization (such as the Civil War, Great Depression, and World War II) have historically been periods in which our democratic institutions are tested and when people have begun to ask more foundational questions about our government and what we expect of one another. So even as we are glued to our Twitter feeds looking for the latest updates on what new measures the president or the governor or the mayor has announced, it's worth it to step back and ask some of the bigger questions.
A couple weeks—and seemingly a century—ago, in the era before social distancing, Lizzie Gracen and I sat down over falafel to have a conversation about the foundations of our government. What follows is an edited version of that conversation, updated to include some thoughts about how these questions connect to the current moment.
As I say to my history students, the best place to find the explanations for the chaos of the present is often in the past.
EG: Will, my friend, let’s talk about the Constitution of the United States. Since my American history is on the rusty side, maybe you should just start from the beginning?
WB: We should start with the idea that one version of the entire history of human government is the story of a shift in the idea of the social contract—which is the agreement between the ruler and the people.
EG: That sounds like a perfect place to begin. Tell me about this “social contract.”
WB: This one version says that the ruler has ultimate power and sometimes gives some rights to the people. That’s the doctrine of absolute monarchy. One of the key differences between our system of government and the British system government that we broke away from with the revolution of 1776 was that Britain didn't have a written set of rules for the government, but they did have the Magna Carta, which stated that the king has some limits on his power—this is often traced back as the first constitution.
The later conception of the social contract, post-Enlightenment, is not that God gave power to the monarchs for them to do whatever they want to us, it’s that we have the power and that we give it to leaders for our protection. Thomas Hobbes was the first one to talk about that. He said that in the state of nature, we would all kill each other if we didn't have a government—the war of All against All. He said that life for a person would be nasty, brutish, and short if there's no higher power to stop him. Basically, if you have food, and I want your food, I'll just take your food and kill you and vice versa.
EG: So, why don’t we simply kill anyone at any time when we want something from them? I mean, obviously, there are religious and ethical answers to that question, but . . .
WB: A political scientist would say that it’s because of some sort of structure that is put in place—or a contract that we make with one another. So, the deal that comes from Hobbes is that we give the power to kill people—or to at least imprison them or take control of them—to an outside body. It’s like outsourcing that job. You know, I don't have to prevent you from attacking me, because the police will prevent you from attacking me, and I can just go on about my business.
EG: Well, but who decides what the limits of that "outsourced" power should be?
WB: Back then, Hobbes said that we should give all the power to the monarch—and this power should be hereditary. He had lived through the English Civil War. We like to think that we invented the idea here in America of getting rid of the king and establishing a democracy, but they did that in England in the mid-1600s. They cut off their own king’s head. They had a republic for a while, but it was a disaster. Hobbes had lived through that terrible time of anarchy and violence and had been chased off and lived in fear. He said that what should be learned from that experience was that we should give all the power to the monarch, and that we shouldn’t have any question as to who has that power once they have it.
EG: We don’t like the sound of that.
WB: Of course, other people interpreted it differently. They believed that the problem always comes from the monarch having absolute power. They said that what we should do instead is have a limited government where we give some power to the government, but that we have checks on that power. This comes from the ideas of John Locke.
EG: Okay, so tell me about John Locke.
WB: Locke takes Hobbes ideas further in a new, maybe more optimistic direction. Locke said that in the state of nature, we are all equal, and that’s the most important thing—that is a self-evident truth. That all men are created equal. The revolutionary part of that is that the basic principle is that the social contract exists to protect the rights of every individual person. The point of the government is to give us all equal rights. Of course, it would take years for our government to define this to include women, but the basic principle extends the whole way.
EG: So now let’s talk about the United States and our system of government.
WB: When the United States is founded as a country, it is a fundamental shift from a monarchy to a system that is based more around the idea that individual people should be protected by government. The other thing that the Declaration of Independence says is that if the government doesn't protect your rights, then you have the right to overthrow the government. So, all power is contingent on the consent of the governed. Of course, there is this big asterisk where Thomas Jefferson and John Adams say, “You shouldn’t do this willy-nilly. Only in very severe situations should you use this right of revolution.” And then they had a list of all the things that think the king had done that did not protect natural rights.
EG: Explain “natural rights.”
EG: So, "natural rights" are what we now call "human rights?"
WB: Yes, these are rights that every human being has just by being born. You don't have to enter into the system of government to deserve those rights. Locke listed them as life, liberty, and property. In writing the Declaration of Independence, they changed that to life, liberty, and the pursuit of happiness.
EG: Why did they change it?
WB: Part of the reason they did that was to avoid the issue of slavery—which is going to be the undertone for the entire first 100 years of this system of government. It’s like, “Let’s just avoid this really important issue.” And it’s easy to avoid when no one in the room is enslaved.
EG: A lot of them had slaves, right?
WB: A majority of them did have slaves. And if they didn’t have slaves, in many cases they economically benefited from the system of slavery. Boston was a shipping town based on the Triangle Trade, where slaves were moved around. So, if you’re John Adams and you are an abolitionist, or at least generally opposed to slavery, you’re still benefiting from being a lawyer for the people who were making money from slavery.
EG: I’ve always wondered how everyone decided that the men who signed the Declaration of Independence were the chosen ones to create this nation—this experiment of democracy.
WB: In my AP Government class, on one of the first days, I give them this scenario: Okay, you’re at Cochella, and Beyoncé is doing her performance on stage, and she speaks into the mic, “Please welcome to the stage . . . Taylor Swift.” And then Taylor Swift says the same thing and introduces Bruce Springsteen. And Bruce does the same thing and announces Barack Obama. Then Oprah walks out, and Zuckerberg walks out, and Mitt Romney walks out, and then George W. Bush walks out. Then, eventually Big Bird walks out, and the audience is just losing it as all these celebs raise the microphones and together they say, “The U.S. Constitution is no longer valid.”
So, the question is: does that mean anything? A bunch of famous people got together and said that the system of government was no more. The short answer is . . . maybe? It means something because a lot of people were ready to take up weapons and fight for it. It was 1776 when they said that, but if we hadn’t won the war, they would have all been hung as traitors for treason.
Later, in the future, around the Civil War, there will be a debate about whether when the colonies declared independence they declared as independent states. Remember, the Declaration of Independence says “free and independent states—with an 's.'” Therefore, the Confederacy said that they entered into a contract that was set up as a confederation, therefore they could withdraw from the contract. The entire fundamental building blocks of our social contract is based upon these states that were once colonies and are now United States.
EG: Are we talking about the Articles of Confederation?
WB: Yeah. Honestly, if you offered me the Articles of Confederation, I would take a long hard look at it and consider going back to it. Because then we would not have a president and have this scary concentration of power. Every state would have its own radically different rules. California could create this socialist paradise of our dreams, and Alabama would unfortunately become a Handmaids Tale . . . maybe . . . I don't know, if that's what they want. People would be able to move around. We’d have Congress handle our foreign policy.
EG: Something about that sounds scary to me. I mean, look at how we are reacting to the current pandemic. It’s hard to organize on all levels of government.
WB: I mean look at all of the confusion happening right now with different states handling the crisis differently. Under the Articles of Confederation, without an executive branch, the situation would be even worse. It would also be terrible for dealing with climate change; plus, our modern economy doesn’t work that way, so it’s mostly just me verbalizing my fantasy and fear. The truth is that economies and democracy itself function better on a larger scale than the scale of the states.
EG: But, our country’s response to the current crisis smacks of disorganization. I think that many people don’t feel like they are being taken care of at all. Without wading into the weeds about politics, why do you think our country was so ill-prepared to deal with the crisis?
WB: Well, in part, it’s the obvious incompetence and narcissism right at the top of the federal government. In part, it’s the fact that our healthcare system is a patchwork of public and for-profit systems that don’t have an incentive to work together efficiently in a crisis. And in part, it’s a tradition of individualism and civil liberties that would make it very difficult for any leader to impose the kind of top-down authoritarian solutions that somewhere like China can do without batting an eye. The rebellion in 1776 was in part about resisting government power, so even when it seems helpful for the government to take swift action, it’s harder to do in America.
EG: So what convinced them to give more power to the federal government in the first place? Why didn’t they just stick with the Articles of Confederation?
WB: I mean, there were a lot of problems with the articles that became apparent in the decade that they were in place. But the last straw was this rebellion of farmers called Shay’s Rebellion. They weren’t able to put it down; they had to hire private security to stop it. A true leftist historian like Howard Zinn would say that was the moment that these elites realized they needed to put down these rebellions on a large scale. That if it was state by state, you’d have socialist rebellions happening all the time, and the underclasses would rise up. They decided that they needed to create a nationwide conspiracy to centralize power in the hands of a smaller number of people so that kind of stuff doesn't go down; and I think there’s a truth to that argument. It leads to constant infighting when power is dispersed so broadly. Also it would involve different currencies. They couldn’t tax directly. They’d have to beg. It’s like the United Nations—they’re always underfunded, but everyone says, “Well, what are you going to do if we don’t pay you?”
So the Articles of Confederation exist until the end of the war, and it becomes clear that this is going to be a separate country, and they just keep going along with that. But, after Shay’s Rebellion, they call a meeting to figure it out.
EG: What was that meeting called?
WB: So there's the Annapolis Convention, which no one needs to remember, which just basically said we should meet again and really, really talk. Then the real convention that we're talking about is in Philadelphia. And in Philadelphia, they all meet in this one hall, and there's no air conditioning at the time. It's very hot. It's the middle of the summer. They lock all the doors and the windows and they swear each other to secrecy, which is crazy to us today where every time a politician does anything they immediately walk out and talk to the press. I mean, what’s the most dangerous place to be in Washington? Between Chuck Schumer and a camera. That's how we operate now. And we can only imagine how a constitutional convention would have worked. Every day after debating, they had to come out and tell us about it? Or if it was videotaped?
EG: They didn't do anything like that. Secrets. No transparency.
WB: Exactly. It was behind closed doors, and the first decision they made was, "Hey guys, we're not here to rewrite the Articles of Confederation. We're here to write an entirely new constitution."
EG: And nobody knew they were making this type of decision.
WB: That’s right. And there's a very legitimate argument to be made that if you get sent there to do that job by the people and then you decide you have a different job . . . that’s not allowed.
EG: But it was secret. So by the time it was done, too late.
WB: Not too late, but we'll get to that. It was a similar group of people to the group of people who wrote the Declaration. They called the meeting in Philadelphia. It’s a similar demographic—white, landowning males, although a pretty wide diversity of age backgrounds. People such as Alexander Hamilton, who weren't even born in what is now the United States. Also, some people who are pretty skeptical of centralizing government. This group was called the Anti-Federalists. Richard Henry Lee is the most famous of these. Thomas Jefferson would be put into that category as well, although he is Minister to France at this time, so he's not present at the Constitutional Convention, but there are a lot of interesting letters where he's writing back kind of “Monday morning quarterbacking.”
The core split is over how much power to give to the central government versus the states. And that issue is known as federalism, which if I had to do my entire lecture in one word, it would be federalism—the best thing about American constitutional democracy, and it's also the stupidest thing about American constitutional democracy, so maybe it's worth it for a second and just like cut to the finish to see where this ends up.
EG: As related to current events?
WB: Over time, we’ve developed a massively powerful central government, which probably is the most powerful organization the world has ever seen in the sense of military might, in the sense of creating a prison industrial complex that can throw people in prison, and in the sense of collecting taxes. On the other hand, compared to almost any other country in the world, the United States has this bizarre system where each state can make its own laws on a lot of topics that in other countries would always be decided by the central government.
EG: Give me an example.
WB: For instance . . . in Utah, where my brother lives, they have really strict laws about alcohol. If you go to a restaurant, they cannot pour the beer in front of you. It's illegal. They have to either go into another room and pour it into the glass and then bring it out, or they have like a little wall that's sometimes called the Zion curtain. They go behind the wall and then pour the beer. It has to do with Mormons trying to limit how many places are actually bars because they're trying to define the difference between a bar and a restaurant. So, that’s how they're doing it. It's incredibly strict, right? In some parts of Utah that's the law. And then you could walk ten feet into Colorado and purchase marijuana in a store anytime you want. It’s crazy. It’s brilliant. There's no other country in the world that has federalism on this level. Even Switzerland doesn't have the vast differences that we do.
EG: Hmmm . . . so would you say federalism is generally a bad thing for our government?
WB: Well, when your party is in power in Washington, D.C., you find federalism to be one of the most annoying things, because it's like Obama passed Obamacare and then all these states refused to take the funding, and it creates this nightmare where it's like we're just trying to give healthcare to people in Alabama; why is the governor refusing to take the funding? Like that's so annoying, right? And then when someone you don't like is in power, we're like, "Phew, thank God Gavin Newsom can look after undocumented people and refuse to help deport them." That's a great deal. And so I really think federalism is like the best and worst of American democracy for the same reason, which is that it decentralizes power compared to many other countries.
However, at the time, they were doing the most, like . . . some really radical decentralizing stuff already with the Articles of Confederation. So the shift was, okay, let's put more power in the hands of the central. So the question throughout our history will always be: what's the right balance between giving power to the states and power to the national government? And I think for most people, the answer is it depends who the national government is.