Righteous Anger at the Wicked States: The Meaning of the Founders' Constitution (review)

Johnson offers a strongly nationalist interpretation of the original constitutional design, of a sort not seen since Crosskey's massive and eccentric work in the 1950s. ¹ Crosskey placed congressional power to regulate commerce among the states of the heart of his nationalist interpretation. Johnson substitutes the national government's power to tax and spend for the general welfare. According to Johnson, James Madison, Alexander Hamilton, and their Federalist allies were outraged at the states' failures to supply the national government with the fiscal resources that it needed, particularly because the Federalists foresaw the need to raise money quickly in the likely event of military attack on the new nation. They proposed a constitution that authorized the national government to tax citizens directly, depriving the states of the fiscal control that is the essence of sovereignty. As the book's title suggests, Johnson emphasizes the moralistic tenor of Federalist advocacy: They used the language of vice and virtue, of shame and duty, to demonstrate the need for a new kind of government.

Johnson's nationalist interpretation is a useful corrective to several decades in which the scholarship of the Republican Revival has strongly affected originalist constitutional interpretation. For some time, it has seemed, oddly, that we should take the views of the anti-Federalists not merely seriously (they were serious people, after all) but as good guides to interpreting the Constitution. But, as Johnson correctly says, since the Federalists won the battle over replacing the feeble Articles of Confederation, the Constitution should be interpreted as the instrument of the Federalist victory. Today's Supreme Court majority pursues what is ironically called the "Federalism Revolution" to protect some residuum of state sovereignty against an overreaching national government. But, in Johnson's view, the Federalists left no residuum whatever. Anything arguably responsive to anti-Federalist concerns was a "sop" (9), with no significant impact on the national government's power.

Johnson tells his story with great verve. Along the way, he explains why the Constitution was not importantly shaped by the Federalists' concessions about adding a bill of rights, or by slavery. He acknowledges that some support for the Constitution flowed from concern that the national government have sufficient power to regulate interstate commerce and to ensure that creditors would have adequate protection, but argues that these matters were decidedly secondary to the interest in creating a government able to serve the people by taxing them directly. Johnson also acknowledges that Madison suffered some "partial losses" (100)—such as equal state representation in the Senate and no general national veto over state legislation—but treats them as modest institutional modifications that did not significantly impair the fundamental nationalist plan of the Constitution.

Johnson's treatment of aspects of the founding that do not fit neatly into his nationalist story shows that he is as much a lawyer building an originalist case for present-day nationalist constitutional interpretation as he is a historian retrieving the past's complexity. Still, he has documented the central place of nationalism in the Constitution's framing, and thereby shifted the ground of discussion. Proponents of the Federalist Revolution will have to contend with the large body of evidence that Johnson has compiled demonstrating that nationalism, not state sovereignty, prevailed in the Constitution.