During this period, Athens gradually (and with lots of back-and-forth) built one of the world’s first Shackled Leviathans, a powerful, capable state effectively controlled by its citizens. Athenians had the Red Queen effect to thank for this achievement. The state could not dominate society, but society could not dominate the state either; progress by each was met with resistance and innovation by the other, and society’s shackles enabled the state to expand its remit and capacity into new areas. In the process, society cooperated too, enabling a further deepening of the state’s capacity as it remained under popular control. Critical in all of this was the way the Red Queen eroded the cage of norms. To shackle a Leviathan, society needs to cooperate, organize collectively, and take up political participation. That’s hard to do if it’s divided among itself into pawns and their masters, phratries, tribes, or kinship groups. The reforms of Solon and Cleisthenes gradually eliminated these competing identities and made room for a broader axis of cooperation. This is a feature we’ll see time and time again in the creation of Shackled Leviathans.
The Missing Rights
The story of how the American Leviathan became shackled, which we started in the previous chapter, has many parallels to the Athenian case. The U.S. Constitution, brought into existence by the founding fathers, men such as George Washington, James Madison, and Alexander Hamilton, is widely considered a brilliant piece of institutional design, introducing checks and balances and gifting freedom to future generations of Americans. Though there is some truth in this, it’s only part of the story. The bigger part is about the empowerment of the people and how this constrained and modified American institutions and unleashed a powerful Red Queen effect.
Let’s take the issue of rights. We owe the protection of rights to the founding fathers and their Constitution, don’t we? Yes and no. The Constitution, which replaced the first laws of the new nation, the Articles of Confederation adopted in 1777–1778, does enshrine certain basic rights, but these were not in the much-lauded document written during the summer of 1787 in Philadelphia. The founding fathers absentmindedly overlooked a gamut of basic rights that we now think of as essential to American institutions and society. These ended up in the Constitution, but only later in the form of the Bill of Rights, a list of twelve amendments to the Constitution, ten of which were passed by the first Congress and were ratified by state legislatures. They included the sixth article of the Bill of Rights:
The right of the People to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
The eighth article stated:
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.
All of these rights seem pretty basic. So how come the founding fathers overlooked them? The reason is quite simple, and helps us understand the origins of the U.S. Leviathan’s shackles—and why these shackles do not emerge automatically or easily.
Madison, Hamilton, and their collaborators, known as the Federalists, didn’t want to replace the Articles of Confederation because they wanted to strengthen people’s rights. Rather, the Constitution they drafted was designed to control the types of policies being adopted by state legislatures, which the Federalists saw as dangerously subversive. State legislatures, for example, could print their own money, tax trade, forgive debts, and refuse to fund the national debt. Worse, there was also quite a bit of disorder and popular mobilization, with people from all walks of life having caught the idea that they could govern themselves, organize, protest, and get elected to legislatures to push their interests. In this context, the Constitution was designed to tackle two distinct problems at the same time. The first was to build the federal state in order to coordinate laws, defense, and economic policy across the states. The second was to put the genie of the powerful democratic instinct that the War of Independence against the British had unleashed back into the bottle. The Constitution would achieve both of these objectives by centralizing political power, putting the central government in charge of fiscal policy, and reining in the hurly-burly of popular politics and the autonomous powers of the states.
The Federalists were what we call “state builders.” Though Hobbes did allow for two paths to a Leviathan, via Covenant or Acquisition, in practice state building is often spearheaded by some state builders—individuals or groups, like Solon, Cleisthenes, or the Federalists, with the determination and a plan to create centralized authority—who found a proto-state or increase the power of a nascent state. The Federalists had a vision to build a Leviathan that Hobbes would have appreciated (but the Articles of Confederation didn’t allow).
The Federalists were also well aware of what we called the Gilgamesh problem; they understood that there were risks in giving the federal state too much power. For one, it might be so powerful that it would start to prey on society, showing its fearsome face. In a famous passage of the Federalist Papers, a series of pamphlets he wrote with Hamilton and John Jay in order to urge people to ratify the Constitution, Madison noted:
In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.
Though it is Madison’s statement on the need for the government to control itself that receives most attention today, his initial emphasis, the critical importance of a government “to control the governed,” highlights the second objective of the Federalists—the need to limit the involvement of the common people in politics. Many readers at the time recognized this and were alarmed by it, particularly since the document that was written in Philadelphia lacked any explicit statement of people’s rights. They had a point. As Madison put it in a private letter to Thomas Jefferson shortly after the Constitution was drafted in 1787:
Divide et impera, the reprobated axiom of tyranny, is under certain qualifications, the only policy, by which a republic can be administered on just principles.
Divide et impera—divide and rule—was the strategy to control democracy. Madison emphasized “the necessity … of enlarging the bounds of the general government [and] of circumscribing more effectively the State governments.” The “general government,” which means the federal government, was made less democratic through such devices as the indirect election of senators and the president. The need to circumscribe “more effectively the State governments” was rooted in the social turmoil of the 1780s, including revolts and uprisings by farmers and debtors, which Madison thought could jeopardize the whole project of American independence. In fact, an important reason that the Federalists favored the Constitution was that it would provide the federal government with the tax revenues to field a standing army. One consequence of this would be “to ensure domestic tranquility,” as the prologue of the Constitution put it. Indeed, the first action of George Washington’s federally funded army after the Constitution was ratified was to march west from the capital to suppress an anti-tax uprising, the Whiskey Rebellion.
Madison and the Federalists’ state-building project generated a great deal of dissent in American society. People feared what a more powerful state, and the politicians controlling it, could do without the protections offered by a Bill of Rights. Even in the United States, the fearsome face of the Leviathan lurked not far beneath the surface. Several state conventions refused to ratify the Constitution without explicit protection for individual rights. Madison himself was forced to admit the need for a Bill of Rights to persuade his own state of Virginia’s convention to endorse the Constitution. He subsequently ran for Congress in Virginia on a pro–Bill of Rights ticket and defended the need for it in Congress in August 1789 on the grounds that it was needed to “conciliate the minds of the people.” (But we’ll see a little later in this chapter and again in Chapter 10 that there were other, more sinister considerations too, and Madison and his collaborators ended up endorsing slavery to make the Constitution acceptable to Southern elites. This would ensure that the Bill of Rights neither protected slaves nor applied against abuses by state governments.)