Even for John Adams, who had come to Philadelphia to push for independence, the pamphlet went too far. Later calling it a “crapulous mass,” Adams was so exercised by Thomas Paine's Common Sense, appearing in January 1776, that he published a counterargument a few months later. But Paine's simply written piece was a stunning success, selling over 100,000 copies in a few months and eventually topping half a million.1
Paine's argument for radical democracy, including waiving the requirement of property ownership in order to vote, and providing a simple unicameral legislature (a cause for upheaval in the Netherlands at the time), pointed to the tensions beneath the widespread complaint against the British empire. Some delegates to the Continental Congress were still loyal to the Crown, and their favored political and economic position would be threatened by any change. At the other extreme were people like Paine and Adam's cousin Samuel, who sought fundamental political, social, and economic upheaval.
Most, however, were ambivalent or at least conservative in framing what might come after. Many merchants and landowners hesitated to declare full independence at first, and came around only later as events unfolded. As successful colonial incumbents, they were eager to maintain their position in the world that followed, so they were a ready counter against Paine and others who asserted rights against the mother country. Adams and others in the middle worked to manage these tensions.2
The speedy efforts to create state constitutions showed some of the dynamics at work. George Mason drafted the Virginia Declaration of Rights in June of 1776, asserting that “all men are by nature equally free and independent and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity; namely the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.” After declaring independence, Virginia's convention approved a state constitution with a bicameral legislature and a property requirement for voting. Mason's constitution separated the legislative and executive powers and included a bill of rights, setting a precedent for the federal constitution that became a condition for its passage years later.
Pennsylvania soon followed with a constitution of its own, considered “more democratic,” matching Paine's approach broadening voting to all taxpayers (not just property owners) and calling for a single legislative body. Besides declaring independence, the new state assembly arrested colonial governor John Penn and confiscated his family's proprietary lands, later granting him some compensation. Some Philadelphia merchants such as Robert Morris opposed the change in government, but they quickly took on important roles as the success of the independence movement became clear.
During the war, Paine himself worked with Morris at the behest of George Washington, but it was an uneasy alliance. After the war, Morris worked to modify Pennsylvania's constitution in response to government‐imposed price controls, successfully achieving a more “republican” form of government that included a bicameral legislature and veto power for the executive.3 Paine eventually left for England and later France, where he published The Rights of Man (1791), a populist response to Edmund Burke's conservative Reflections on the Revolution in France (1790).4 Samuel Adams would similarly clash with John Hancock, who was elected governor of independent Massachusetts but was unable to become president of the federal union, largely because of his lavish lifestyle and lack of appeal to the common man.
Wartime unity gave way to varied interests, as the thrilling victory at Yorktown was not enough to establish a consensus‐driven government administered by virtuous elites. The independent states eventually formed a federal union, but with a decentralized structure that allowed populism and democracy. Yet with both George Washington and John Adams atop the federal government and contentious nation‐building imperatives ahead, the tensions would continue.
The war's aftermath helps explain the foundation of the messy but effective American approach to entrepreneurship. Following the Peace of Paris in 1783, most people assumed political and economic leadership would take place at the state level. In spite of many shortcomings, the Continental Congress had functioned sufficiently during the war. As a result, it yielded to the weak Articles of Confederation, which the 13 states had ratified back in 1781.
Many state‐level efforts proved to have a populist bent. As each of the former colonies produced their own state constitutions, some went further than others in altering political and economic rights, including loosening the property qualification for voting, establishing unicameral legislatures to reallocate power, and issuing paper money to alleviate the burden on debtors. The idea of 13 diverse and sovereign states appeared to work, and the transition to self‐government proceeded apace.
Despite a postwar recession, the economy was strong in some sectors, including agriculture, which enjoyed high market prices. Mechanics, artisans, and yeoman farmers were especially eager for an egalitarian and open society. Even Benjamin Franklin, who would participate in the making of the new Constitution several years later, noted that many groups in the diverse economy had prospered under the Articles, including the working classes.5
Yet the entrepreneurial energy and economic churn following independence carried an anti‐authoritarian undertone. Rhetoric decrying “aristocracy” and “monarchy” filled the air, eroding long‐standing habits of deference in both the political and economic spheres. Everywhere people asserted the right to challenge, to compete. Upstarts came elbowing in. To would‐be entrepreneurs, the mood of the times signified the arrival of openness and expansive opportunity.
Groups with traditional power were naturally concerned. Many feared mob rule, having witnessed it during the revolution. Others centered on specific problems. As state legislatures issued paper money with few restrictions, for example, and the balance between creditors’ and debtors’ rights tilted in the latter's favor. Many, particularly economic elites, worried about the safety of property rights and investment.
Given Americans’ instinctive upstart bias, they would never stand for a permanent aristocracy, much less a monarchy. But many of them also felt a deep need for social and political order. As the new states sought stability, the basic question became whether a de facto economic aristocracy or an egalitarian democracy, even one with shades of the “leveling” principle, would serve as the foundation?6
The outbreak of violence in western Massachusetts in 1786 catalyzed action. Known as Shay's Rebellion, it came from farmers opposed to debt collectors (private and state), and war veterans who sought unpaid military wages. While the resurrection was soon put down, by 1787 many leaders agreed that something needed to be done, and they called a constitutional convention.
According to a classic argument, the Constitution emerged from competing economic interests and attitudes playing themselves out. The main ones were creditors (concerned about rampant paper money issuance), holders of wartime public securities (worried about states honoring their obligations), merchants and early manufacturers (who sought protection from foreign competition as well as free trade between the states), and land speculators (who sought certainty over their western holdings). Most of these groups were wealthy, established citizens, yet the convention included some representatives of farmers and workers.7 Nor were those incumbents of a single mind. Large landowners’ powerful local interests made them ambivalent about a strong national government that might interfere with their prerogatives.
Most of the delegates shared the goal of enabling the country to enjoy the fruits of economic development – a point highlighted when they witnessed one of the early launches of a steamboat along the nearby Delaware River, a technological marvel. Through this array of interests, the federal constitution emerged with hard‐earned compromises that promoted entrepreneurship.8
The Federalist framers were concerned foremost with protecting property rights against local mobs or populist state legislatures. “Property must be secured, or liberty cannot exist,” wrote John Adams.9 “Most of our political evils may be traced to commercial ones,” James Madison observed. The states’ “pernicious substitution of paper money, for indulgences to debtors,” as well as “postponement of taxes,” had created an “anarchy of commerce” that threatened to ruin the young nation's economic prospects.10 So the framers wrested the power to issue currency from the state governments and lodged it firmly with the federal government. They also promoted the integrity of private contracts, against states restricting out‐of‐state debt collectors.
Still, they sharply limited the new federal powers, because they were concerned about acceptance by the states. As it was, prominent revolutionary leaders, along with rural interests undercut by some provisions, strongly opposed the ratification. Anti‐Federalists warned that lodging vigorous powers in a central government would vest economic decisions in the hands of an aristocratic and potentially tyrannical political elite, creating an economic incumbency and rentier class in charge of the new government. Yet among those opposed to a strengthened federal system were not just Sons of Liberty firebrands such as Samuel Adams and Patrick Henry, but even landowners Thomas Jefferson, Richard Henry Lee, and George Clinton, who feared the loss of local power. Should the new country maintain certain economic privileges, and, if so, who should control them?
Amidst this turbulence, James Madison and Alexander Hamilton emerged as leaders who understood not just the immediate political and economic forces but also the broader issues. Like most other elites, they focused on establishing the credit of the new country and distrusted popular sovereignty. Secure property rights and political stability, they believed, would foster long‐term development. The only way to guarantee that result, they argued, was through a supreme national government. Madison in particular pushed hard for a national executive elected directly by the people, so as to gain full authority. He dismissed the state governments as mere “local authorities” that would remain in force “as far as they can be subordinately useful.” To keep them in line, he even wanted the national executive to have full veto power over their legislatures, just as King George had.
As primary drafter of the Constitution, and influenced by thinkers such as Montesquieu and Locke, Madison also sought the separation of powers as a check on central government excess. He understood that limiting this power through checks and balances among the various branches would also create countervailing forces. These forces, while messy on the outside, would enable private economic activity to flourish and a mixed economy of diverse interests to take hold.11
Madison combined both the common suspicion of monarchy and fear of popular sovereignty, especially at the local level. Here, too, a mixed economy of differentiated interests, including landowners, creditors, farmers, artisans, mechanics, and others would help offset extreme political swings. Madison's Federalist No. 10, often cited as a justification for the distribution of political power through representative (as opposed to direct) democracy, also suggests that “factions” can be economic as well as political and are often linked.12 As with political power, those economic factions would prevent any single group from gaining too much economic power over the others – which is essentially what happened.
Those messy, drawn‐out debates over ratification thus served a vital purpose. Anti‐Federalist opposition was crucial in curbing the more elitist measures of the Federalists, not just federal supremacy over the states but also the inclusion of a Bill of Rights to protect individual liberties. The new federal government thus emerged with a balanced political and economic system that supported private enterprise as a whole, while embedding within it a natural dynamism. The Constitution limited both populism, which threatened all property rights, as well as the power of federal and local elites, which might have endangered these rights as well as the right to compete.13 It established the federal power to tax, open up interstate commerce, and enact tariffs against foreign competition, while addressing specific issues such currency, patents, eminent domain, and contracts.14
More broadly, the political framework opened the door to an entrepreneurially driven economic system. Throughout American history, new innovations and new entrants would find mechanisms to counter attempts by protectionists or rentiers to squash their development, while the system still preserved property rights to encourage investment. By working through one or more of the three branches of the federal government or by using the dynamic tension between the national and state governments, a faction seeking market entry would most often find a way to succeed.
In looking at the structure and certain provisions of the U.S. Constitution, we can see how America's pro‐entrepreneur political economy took shape. Scholars in the field of institutional economics study how the “rules of the game” in a country affect economic performance, and America's entrepreneurial growth stems largely from its foundational document.15 Relative to other countries’ much simpler approaches, the Constitution had several main attributes that have kept the American economy liberal (in the sense of limited government intervention), inclusive (in promoting market access to at least some groups), open, and supportive of economic growth and productivity.
First is the separation of powers, which increases the likelihood of considering trade‐offs as well as avoiding a concentration of power. The second is the relationship between the federal government and the states, which results in a give‐and‐take between national and local interests. In that give‐and‐take, tensions between upstarts and incumbents, and the rights of property versus competition, have often played out. Third is the Bill of Rights, which codifies individual liberties, along with various specific economic provisions. Fourth is a general deference to private economic activity, including the state‐level common law (especially its decentralized finance and corporate mechanisms) that enabled this activity.
The separation of powers effectively disperses control and respects competing interests, so different from the unified or at least more centralized governments in many other parts of the world.16 The bicameral legislative structure balances the highly localized interests of representatives with the broad constituencies of senators, and this often has ramifications when it comes to issues involving market access, protectionism, and other matters. An independent judiciary, with jurisdiction over the other two branches as well as the ability to protect individual liberties at the state level, has proven particularly significant. Even with this decentralized system, the early justices succeeded in maintaining the overall supremacy of the rule of law.17 Here they and the framers drew on the principles of limited authority dating back to Britain's 1688 Glorious Revolution, as described in the previous chapter.18
As for the federal structure, it has yielded a sometimes competitive relationship with the states. Many issues of property protection and the right to compete have played out here. The federal Supreme Court has frequently intervened to limit state activities that would weaken private property (including contracts), grant special privileges or monopolies to select local individuals, exclude new market entrants, restrict the development of a national marketplace, or unduly regulate economic activity. It did so whether these state initiatives came at the behest of local elites or populists. Over time, the power of the federal government expanded and played an essential role in developing the national market and preventing state protectionism. Even today, entrepreneurs use federal supremacy over interstate commerce to pry markets open against local regulations, from taxicab licensing to lodging restrictions.
By the same token, the states have promoted entrepreneurship by supporting local businesses and by luring firms from other states. Competition among the states, free from federal intervention, has led to innovation in areas such as corporate law. New Jersey and Delaware led the way in enabling the formation of enormous firms in the late 19th and early 20th centuries. Despite arguments that this would create a “race to the bottom,” this competition has often fostered an environment of productive opportunity.19 While fragmenting the national market in some cases, state power, especially in banking and insurance, has helped to disperse opportunity.
Individual liberty, as embodied in the Bill of Rights, was an essential underpinning of the constitution, but it took some time to become a powerful factor in support of entrepreneurship. The most important such liberty is freedom of speech, essential in disseminating new ideas and innovative practices; the Supreme Court eventually extended this political right to commercial speech.20 Similarly, the Fifth Amendment's protection of due process expanded to protect property rights, particularly against government takings without compensation.21
The post–Civil War 14th Amendment broadened these liberties substantially. These now extended to the state level, and included economic rights (“substantive due process”) that applied to corporate entities, not just individuals. Though controversial, particularly as corporate power has grown, these liberties have encouraged both upstart and incumbent enterprises.22
Along with those overall liberties, the Constitution offers numerous specific protections related to economic development, including respect for contracts,23 federal oversight of interstate commerce and international trade,24 and patents and copyright for inventions (subject to time limits). How to apply these economic provisions has been at the center of much of the tension associated with entrepreneurial activity, often adjudicated alongside disputes over separation of powers or federalism.25
The fourth and perhaps most powerful core attribute of the American political economic system is its support of individual private action at the center of economic activity. This takes place outside of the Constitution but is deeply enabled by it. Unlike most countries, where the government holds the reins on most economic activity, American government generally stands aside, deferring to individual initiative instead. With its checks and balances, its Federalist structure, and its explicit protection of individual liberties, the system has been able to leverage this private activity while still maintaining strong enforcement and decentralized coordination.26
A key enabler in this area has been the common law, which (as noted earlier) tends to be more supportive of active commercial activity than the civil code prevalent in most Continental European countries. The common law works to establish a broad‐based understanding and application of the rules (thus, the “common” law) rather than one based on administrative‐heavy experts. As many entrepreneurs like to say, “It is easier to ask for forgiveness than permission,” and common law brings with it an inherent “bottom up” orientation in which activity is generally allowed unless expressly prohibited. Similarly, scholars who study the importance of “legal origins” often claim that common law plays out as more “dispute‐resolving” and supportive of private market ordering, rather than the “policy‐implementing” for state‐desired outcomes as promoted in top‐down civil code systems.27
Contract law has been especially vital for commercial activity. Written contracts enforced by courts were essential to joint stock companies, patents and prizes, bills of exchange, and insurance, for instance. In the early years of the country, sanctity of contract was critical in securing investment. More recently, proponents of the study of “law and finance” note the role of contracts and other aspects of the law in serving as the foundation for modern finance.28 Other fields of law, such as property and torts, have similarly supported development, initiative, and growth.29
Common law also gives independent judges a flexibility not generally enjoyed by those in civil code regimes, and this flexibility tends to support entrepreneurial innovation. Flexible judicial systems can be more responsive to market‐based needs than are courts under state‐oriented formalism. The judiciary in common law countries can even serve as a buffer against the state and prevent interference that might misallocate resources or lead to policy‐determined outcomes. At the same time, the common law tradition relies on precedent, so changes in the law move gradually even as they evolve. Thus, as with the constitutional system, common law transforms itself to accommodate innovation even as it does so in measured fashion. This flexible and highly independent judiciary may be especially important for upstart firms.30
Even as the country works bottom‐up in many areas, America has benefitted from an underlying consensus that promotes the rule of law. The checks and balances that work to maintain the political and legal system as a whole also support economic performance. The strong culture of enforcement and the credibility of the legal system are often underappreciated in the economic context.31
The orientation toward “private ordering” rather than top‐down control also helps explain the rise of sophisticated financial markets that lead to economic growth. Investors and creditors have secured better protections through market‐based negotiation rather than depending on state policymaking, which in turn has facilitated more resources to be invested, the development of advanced financial instruments, and a broader dispersion in ownership. These factors also encourage unique features of American corporate governance, with more sources of risk capital, less dependence on large banks, and, most recently, activist shareholders.
In lockstep with these factors, American law opened the corporate form to entrepreneurs earlier than many other countries and allowed the range of corporate activities to expand to meet market needs and opportunities. The broad access to the corporation brought with it limited liability and a mechanism to amass resources. Similarly, deference to private activity supported the development of decentralized financial intermediaries, which takes capital allocation decisions out of the hands of cronies, and encouraged the proliferation of business activity and the mobility of capital far more than in countries with centralized corporate and financial institutions.
Despite this messy division of authority, or perhaps because of it, the most noteworthy aspect of the U.S. Constitution has been its continued authority. The system has won this authority by balancing the inherent tension between stability and dynamism, and thereby supporting innovation, economic progress, and productivity over time. Legal decisions or policies that made sense in one time period could be reversed decades later, yet the system maintained its stability. In terms of sheer longevity, the U.S. Constitution is by far the longest running in the world today. Few other countries have constitutions older than 60 years, and the median age is less than 20 years. The persistence of a two‐party system, which yields a natural equilibrium as rival groups oppose each other while supporting overall stability, helped here as well.
America's tolerance of creative destruction may well follow from this equilibrium, as it allows ongoing tensions to create energy that is both disruptive and stable at the same time. With a large, fluid, and diverse economy, it has been hard for special interests to garner or at least maintain privileged positions over long periods, and this has led to a virtuous cycle in which new entrants and innovations can continue to reinvigorate the system. The difficulty interest groups have in dominating the economic sphere over extended periods is at least partly due to the political framework.
To understand the stakes in the 1780s and the importance of the resulting institutions, we can look at the experience of France, which threw off its monarchy almost simultaneously with the passage of the U.S. Constitution. While partly inspired by the break with Britain, what followed in France was a populism that went unchecked. Why the difference? Alexis de Tocqueville usefully pointed to five fundamental differences: (1) France was centralized under the monarchy; (2) the French elevated the general will above the law; (3) they attacked religion, while America was more sectarian; (4) they gave more power to intellectuals than to practical men; and (5) they put equality above liberty.32 Regardless of the reasons, the result was chaos, as successive leaders set up a new authority and then met the guillotine. The country lost an entire generation of entrepreneurs and economic development at a time when the Industrial Revolution was just beginning.
Society didn't stabilize until Napoleon, a war hero, took over in a coup d’état and moved toward an authoritarian model. In certain respects, his leadership was farsighted and effective, and he became what one biographer called “the Enlightenment on horseback.” To administer his far‐reaching state, he centralized government and set up elite national schools in the arts of commerce, engineering, and government. He favored meritocracy and established a top‐down legal system based on clear principles rather than local preferences, all in service to a top‐heavy republic rather than a ground‐up democracy.33
But Napoleon's institutions lacked a mechanism for dynamism, and the result has been a series of empires and republics that failed to achieve either stability or dynamism. Even today, France relies heavily on rule by experts. The result is an orderly, affluent society, with secure property rights. But it comes with a less open and dynamic economy, as elites inevitably favor incumbents over time. This “centralized administration machinery” and “rationalist” (as opposed to “empiricist” or evolutionist approach in England and the U.S.) has held back innovation and productivity.34
France's top‐down approach continues, as the institutional and cultural traditions remain intact. French president Emmanuel Macron – himself a product of elite schools – is now working hard to promote entrepreneurial openness. But much data suggests that entrenched elites continue to control most of the resources, even those that are privatized.
In spite of the strong protections of property and the seemingly conservative nature of the Constitution, many of the powerful interests in the economy before the Revolution faltered in the years after it. Why didn't the Founding Fathers or other elites dominate the new United States? Because the rest of the people, those ordinary farmers, mechanics, and artisans, rose up to turn the war for independence into a true revolution. Rather than exchange their imperial masters for local elites, they sought an utterly new political order, even as property rights remained secure. They eagerly took advantage of that order as it emerged. And if the lower classes did not entirely triumph, new upstarts and varied interests among the existing economic elite kept incumbents from insulating themselves from competition.
We can see their efforts in the macro economy. In the late 1780s and ’90s, after the postwar recession, the nascent U.S. economy took off. Productivity rose substantially, and markets grew impressively. All of this was happening before the industrial takeoff of later decades. Textile mills were only just starting to use machines, and practical steamboats and railroads were still years away. It wasn't technology but a basic expansion of human effort that turbocharged what had been, aside from some coastal cities, a slow‐moving economy. Turnpikes spread rapidly, connecting remote villages. Farmers were eager to get their harvests to regional markets, rather than consuming it locally. The more buyers they found, the harder they worked to raise crops.
Much of this was the product of a cultural shift. Before the war, most colonists had seen themselves within a great hierarchical order where everyone knew their rank in society. The vast majority of people were “the vulgar,” expected to show deference to their betters. Largely stuck in their positions, they sought protection in personal ties, and only noblesse oblige from their patrons kept many from falling into utter poverty. The wealthy classes, especially away from the coast, often sought stability over market‐oriented efficiency and growth.
After overthrowing the monarchical order, ordinary Americans didn't look for new elites for protection. They realized more than ever before that they could change their station in life. Many farmers took up home manufacturing on the side, hoping to afford the luxuries once deemed appropriate only for gentlemen. Marginal lands fell under the plow. What had been a trickle of migrants going west soon became a flood. Literacy shot up as the masses started taking education seriously for their children.
That new mindset in turn did much to spur the speedy adoption of technologies in later decades. As historians have increasingly appreciated, technology is usually a secondary factor in economic development. Entrepreneurs must do the hard and risky work of developing early advances into something that truly works in the marketplace. Elite‐dominated countries can move fast to catch up to pioneers, because they can mobilize capital for basic entrepreneurship. But innovation is a different story, and for that most countries usually need a great many hungry entrepreneurs experimenting on a problem to arrive at a successful adoption.
To the more conservative‐minded in the 1780s, the popular tumult was verging on economic anarchy. These leaders hoped the Constitution would restore some measure of stability both politically and economically. Instead, the new government only furthered the transformation, more by unleashing new energies than by explicitly limiting existing elites. Over time, many of the nondemocratic elements of the federal government faded away, while the states phased out all property qualifications for the electorate. An open, democratic system gradually emerged despite the opposition of elites.
Aghast at the rise of partisanship and nakedly self‐interested politicians, many of the Founding Fathers felt betrayed. Benjamin Rush, a leader in spreading Enlightenment ideas as well as signer of both the Declaration and the Constitution, bemoaned how the government had fallen “into the hands of the young and ignorant.” George Washington lost all hope for democracy at the end of his life. Alexander Hamilton, now celebrated as the epitome of the self‐made man, concluded that “this American world was not made for me.” Even Thomas Jefferson, the most egalitarian of the Founders, denounced the emerging democracy for falling prey to ignorance and superstition.
Some of the most powerful leaders in the economic realm had difficulty solidifying their incumbency. Hancock left no direct heirs and Robert Morris, the financier of the revolution, ended up in debtors’ prison, the result of unsuccessful land speculation after the war.35 The Constitution allowed the states to abolish some anti‐democratic property rights, especially primogeniture and entail, which eventually eliminated the great patroonships in New York and undermined John Penn and his progeny in Pennsylvania.36 Only the Southern planters largely maintained their incumbency. The opportunities unleashed by independence disrupted power across the board, with new players emerging as opportunities developed. Those who sought to remain on top had to reach a higher bar or find themselves displaced.37
The American Revolution itself emerged from a broad upstart‐incumbent dynamic, with anti‐authoritarian and anti‐monopoly principles that have remained at the country's core ever since. The democratic spirit, increased availability of land, and the corresponding shortage of talent created opportunities at all levels, and in turn promoted a culture of openness that empowered upstarts to compete. Yet the resulting legal structures also secured most property rights and provided tools against the excesses of populists. Americans had broken open the most powerful incumbency the world had known, but they were just embarking on a journey of their own in balancing property rights and the right to compete.
Sketched in broad strokes, the Constitution left much to be figured out. Yet by rescuing the fragmented states from the Articles of Confederation, it was a triumph of stability against Europeans expecting the new country to devolve into chaos – without giving incumbents entrenched power. The country unified instead around the ideal of ordinary men rising in their station and achieving economic independence.
Nevertheless, the burgeoning commercial economy, along with those emerging technologies, would both inspire and challenge the young country and its emerging democracy. If upstarts challenging incumbents were the future, how would the courts handle the inevitable disputes in a fast‐changing economy? What place did governmental privileges and subsidies, if any, play in a democratic system committed to economic development? These and other issues would need to be resolved as the government and nation itself moved ahead.
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