As the American Revolution began, Americans threw off the rule of a tyrannical king but in their enthusiasm for their newfound freedom, they set up ineffective governments. For instance, they denied the federal government the power to tax, trusting the state legislatures to pay their share of the war costs.
Americans gave their state legislatures too much power and the governors too little. In turn, the people voted irresponsible legislators into office. The result: legislatures started gobbling up executive power, further concentrating it in their hands.
These imbalances made it onerous to fight the British and became even more problematic after the existential crisis of the war had passed. Many states suffered through economic stagnation. Legislatures enacted a litany of new regulations, only to change them soon after, creating chaos and confusion. The federal government could not pay its debts or its armed forces, leaving natives and the British in Canada free to accost settlers on the frontier. And states made conflicting treaties with European powers, increasing an already tense relationship among the newly formed union.
James Madison: Not so quick to ditch the British way
Old laws have a power that constantly changing laws cannot.
James Madison thought something radical had to change in order to save the fledging nation. He saw the need to reach back to British roots and create institutions that strengthened the federal government and weakened the state governments. This reflected his Burkean understanding of constitutionalism: old laws have a power that constantly changing laws cannot.
While Madison knew the institutions had to be republican, that did not stop him. He simply changed the definition of republicanism. Previously, many would have said that the people have to participate in legislating as they did in ancient Athens or ancient Rome (what we now call direct democracy). Madison claimed that any representative government and any level of suffrage counted as a republic in the modern age.
Opposing Madison’s approach, Thomas Jefferson embraced the political turmoil of the early USA. He was a strict Lockean contractarian who thought that the people are the “only legitimate fountain of power,” so the people’s representatives should have a great deal of power to change laws — including the power to call a constitutional convention.
For Madison, laws had to endure in order to have full effect.
Madison wrote Federalist 49 in an attempt to convince Jeffersonians of the value of stability. For Madison, laws had to endure in order to have full effect:
It may be considered as an objection inherent in the principle that as every appeal to the people would carry an implication of some defect in the government, frequent appeals would, in great measure, deprive the government of that veneration which time bestows on everything, and without which perhaps the wisest and freest governments would not possess the requisite stability.
Madison endorsed an enduring Constitution over the volatility associated with a more purely contractarian form of democracy that would require a constant recurrence to the people. He followed Burke’s rationale to a certain extent, seeing a need to maintain stability, forsaking some liberty.
Jefferson: Throwing shade at Shays
From Jefferson’s perspective, however, rebellions and tensions demonstrated the health of a nation. He scoffed at the alarm caused by a small uprising in Massachusetts, Shays’s Rebellion, claiming: “A little rebellion now and then is a good thing, and as necessary in the political world as storms in the physical.”
Jefferson took a more Lockean view, seeing the social contract as the only legitimate source of power for the government. He even went further than Locke, saying that “the dead have no rights” over the living. For that reason, every 20 years — which was a generation in the 1800s — the nation should have a constitutional convention allowing the “right to choose for itself the form of government it believes most promotive of its own happiness.”
We see in these radically differing opinions the two constitutional paths the United States had laid before it: one Burkean and one Lockean. The ultimate decision to take the Burkean path provided the United States with long-term stability. It did, however, come at the cost of a more Lockean version of liberty. Considering the result of the French Revolution, due to Madison’s steady hand, American likely avoided what sometimes comes with more liberty: chaos.