It might startle readers in the UK, safeguarded by a Bill of Rights since 1689, that its US equivalent protected almost nobody for much of American history.
Gary Gerstle’s complex book shines a light down countless twisted alleyways and switchbacks of America’s past, but none reveals the paradoxes of federalism like the crooked path of the Bill of Rights.
The first amendments to the Constitution define privileges that the federal government may never abridge, such as free speech. They were an afterthought to a plan so controversial that the states nearly rejected it. New York ratified the Constitution by only three votes.
Anti-federalists did not go away. They retired to the states, which retained extraordinary police powers. In fact, the Bill of Rights limited only the federal government’s power to abuse individuals. Since Americans lived in states, few could call upon federal protection in everyday life.
At the outset, James Madison, the “father of the Constitution”, proposed that states ought to be bound to the national Bill of Rights, but his colleagues in the House of Representatives did not agree. The states liked their sovereignty.
Except in matters of defence, tariffs and interstate commerce, they operated autonomously. Half of them permitted chattel slavery until 1865. Some enfranchised women early; most did not. Many passed temperance laws banning alcohol, tobacco and prostitution. A few allowed as much sinning as a man could stand.
The Civil War shifted the balance of power by eliciting the Fourteenth Amendment to protect former slaves. It prohibited states from making “any law which shall abridge the privileges or immunities of citizens”. Suddenly, local law had to match federal law, although Washington lacked the gumption to enforce the amendment.
Government remained weak in other arenas as well. As Gerstle deftly shows, this resulted in creative workarounds to adapt 18th-century procedure to evolving norms. Want to stop the circulation of birth control, legal in some states in 1875? Call it a violation of national postal codes. Change your mind and want states to permit birth control in 1965? Call it the constitutional right to privacy.
Gerstle discusses, but could highlight more, the final judo move that broke the states’ hold: the creation of a standing army during the Cold War to provide security for allies. This shifted the tax base from the states to Washington, whose influence and largesse grew accordingly. Federal reformers used their new strength to enforce the Fourteenth Amendment (and the Bill of Rights), sparking opposition from conservatives angered by assaults on traditional folkways, such as separate washrooms for “the colored”.
Ronald Reagan led the movement to restore states’ rights. Ever since, those favouring federal power have struggled with increasingly bitter complaints that it exceeds “the limits intended by the founders”. Ironically, conservatives’ goal of defunding Washington is hamstrung by their own commitment to world policing.
And so government descends into paralysis: as Gerstle observes, “in no other industrialized country has the central state been forced to fight for its legitimacy as doggedly”.
Gerstle ultimately challenges Americans to do that which most cannot fathom: revise the Constitution. He may as well ask a goldfish to play fetch. As he shows, citizens will abide any absurdity rather than monkey with the one thing that has united them since 1789 – except during the Civil War.
Liberty and Coercion is not a strong “how-to” book. It is more: an enlightening, alarming analysis that shows how a government forced to “rely on a mix of strategies to get its work done” incrementally altered the landscape of US history like a blind but determined river.
Elizabeth Cobbs is professor of history, Texas A&M University, and author of American Umpire (2013).
Liberty and Coercion: The Paradox of American Government from the Founding to the Present
By Gary Gerstle
Princeton University Press, 472pp, £24.95
ISBN 9780691162942 and 9781400873357 (e-book)
Published 25 November 2015