Review: The Creation of the American Republic by Gordon S. Wood, Part Two

Second of Two Installments; Part of an Ongoing Book Review Series

The second half of Gordon S. Wood’s The Creation of the American Republic (1969) begins with Chapter VIII, “Conventions of the People.” This part of the book includes an important aspect of American intellectual and legal history as it marks the moment when American constitutional thought emerged in a form that is recognizable today.

In the 1770s and 1780s, a new legal interpretation developed: constitutions are to be changed by the people themselves and not by their legislative representatives. Furthermore, that constitutions are a higher form of law and supreme to that of simple statute, and conventions “are the only proper bodies to form a Constitution, and Assemblies are the proper bodies to make laws agreeable to that Constitution” (338). Wood notes the momentous impact this evolution in constitutional thought had in the United States going forward. Sovereignty belonged not in part but fully by the people, and their representatives are given license to enact legislation only so far as conforms with what the people have consented to in their constitution. This evolution in political thought, which occurred during the constitution-making process of the individual states during the revolution, created such far-reaching changes to American life that the very participants in this process seemed not to understand how profound its impact would be.

            Succeeding chapters of the book outline further the evolving view of sovereignty and notes that some colonists, including Thomas Jefferson, by 1774 were contending that Parliament’s acts over America were void not because they were unjust, as James Otis had argued in the 1760s, but because the British “has no right to exercise authority over us” (352). Also interesting but understandable during the revolutionary years is how little the rebel/independence literature spoke of the nature of an American union being formed. Wood skillfully tracks the growth of belief in the people’s sovereignty and its relevance to American constitutional origins. He also demonstrates how these same impulses wore out their welcome by the mid-1780s when many began to believe that such ideas had begun to go too far. The revolutionary spirit that informed the cause in the 1770s gave way to a cynicism of such anti-authoritarian thinking by 1787. A lack of faith in representatives, which in no small part informed a shift in American constitutional thinking, also began to corrode a belief in government broadly.

            Chapter X, “Vices of the System,” and especially Chapter XI, “Republican Remedies,” feature perhaps the most vital intellectual history analysis in the entire book. This fear of overwhelming democratic sentiment mentioned above is underscored in Chapter X in James Madison’s correspondence with Thomas Jefferson, where Madison states his concern with majoritarian tyranny, asserting that in “our Governments the real power lies in the majority of the Community, and the invasion of private rights is chiefly to be apprehended, not from acts of Government contrary to the sense of its constituents, but from acts in which the Government is the mere instrument of the major number of the constituents” (410). To many in Madison’s sphere, republican virtue needed to be cultivated and democratic impulse needed to be reined in.

            Chapter XI is most valuable for its analysis of a growing sense of judicial independence. Wood demonstrates that notions of natural justice were influential in North America at least as far back as Cato’s Letters in the early eighteenth century. Also of value is Wood’s analysis of court decisions, including Rutgers v. Waddington, which reveal that concepts of judicial review existed long before Marbury v. Madison, and even prior to the drafting of the U.S. Constitution in 1787. Another case, which preceded the new constitutional government of 1789, Trevett v. Weeden, the lawyer James M. Varnum defined the essence of judicial review and an independent judiciary when he stated “the powers of legislation, in every possible instance, are derived from the people at large, are altogether fiduciary, and subordinate to the association by which they are formed” (460). The fact that judicial review is an antidemocratic check against the legislative branch in order to champion the original charter of the people (i.e. the Constitution) comes full circle with the impression that in American constitutional thought, the people and the people’s representatives are not one and the same. In this way, the legislative branch represents the people, but the judicial branch represents the limits of legislative powers by acting as representatives of the people’s values through its defense of constitutional principles. This aspect of Wood’s research has been instrumental to my own work, which focuses even more deeply on the intellectual history of judicial review.

            Finally, the one other criticism I would offer about The Creation of the American Republic, both the second half and the book as a whole, is that there is very little said about the amendment process. This was both a surprise and a disappointment. Considering how much detail and scholarship Wood offers in regard to the different processes of development regarding state constitutions and the evolution of ideas regarding sovereignty, the proper role of the legislature, and judicial independence, Wood’s near silence on the amendment process makes little sense. With any work, a writer is forced—for one reason or another—to leave certain things out. Nevertheless, the amendment process is no small aspect of the American constitutional system, thus absence of any substantial discussion of the topic seems to me a missed opportunity. That said, The Creation of the American Republic is an incredible work of intellectual history. Its breadth and scope are to be admired, as is its immense influence over the past fifty-plus years. Whether one is a fan of Wood’s republican thesis or not, The Creation of the American Republic is a work which must be contended with by any serious historian of the revolution and the early republican era.

[James M. Masnov is a writer, historian, and lecturer. His book, History Killers and Other Essays by an Intellectual Historian, is available here.]