The Penguin Guide to the United States Constitution Part 9

Their plans for this revolution would first have to gain the approval of the Continental Congress in New York. The Congress received the address from the Annapolis Convention on September 20, and then ignored it for three weeks before finally referring it to a "grand committee" consisting of a delegate from each of the thirteen states. And there the proposal for a convention languished. Some of the inactivity stemmed from the reservations of a few committee members, who thought that the Congress had no right to call such a convention, but the more important reason for the Congress's inaction stemmed from its inability to get a sufficient number of delegates together to take up the matter at all. More than four more months would pa.s.s before, finally, on February 21, 1787, Congress took action. Some of the credit for that first positive step belongs to James Madison; in spite of bouts of illness, he made the trip from Virginia to New York to urge action on the Annapolis proposal. Perhaps more important, even though the Shaysite rebels in western Ma.s.sachusetts had been dispersed by an imposing military force just two weeks before, the Continental Congress continued to receive news that the Commonwealth of Ma.s.sachusetts was in a state of rebellion.

When the Continental Congress finally approved the proposal that a meeting of delegates from each of the states be held in Philadelphia in May, it did so with the understanding that the convention would meet "for the sole and express purpose of revising the Articles of Confederation, and reporting to Congress and the several legislatures such alterations and provisions therein as shall when agreed to in Congress and confirmed by the States, render the federal Const.i.tution adequate to the exigencies of Government and the preservation of the Union." The congressional delegates, reluctantly agreeing to the idea of a convention, had done everything they could in their resolution of approval to limit the charge of that convention. But those constraints would soon be ignored by a handful of delegates to the Const.i.tutional Convention who had a far more ambitious idea for a federal union in mind.

THE CONVENTION DELAYED.

It did not begin auspiciously. On May 14, 1787, the day on which the Convention was due to begin, James Madison, who had arrived in Philadelphia eleven days before, found himself in a gloomy mood. Only a handful of delegates had turned up, and indeed eleven more days would pa.s.s before the Convention was finally able to get under way with a bare quorum of seven state delegations a.s.sembled. General Was.h.i.+ngton, one of the few who had arrived in Philadelphia on time, began to worry that the Const.i.tutional Convention would fall victim to the same combination of apathy and indolence that had afflicted the Continental Congress. As things turned out, however, that eleven-day hiatus would provide for those few delegates who had bothered to turn up on time a rare opportunity to plan their revolution in government.

The ringleader was the thirty-seven-year-old Madison. Standing only a few inches over five feet tall, scrawny, suffering from a combination of poor physical health and hypochondria, and painfully awkward in any public forum, Madison nevertheless possessed a combination of intellect, energy, and political savvy that would mobilize the effort to create an entirely new form of continental union.

Madison was gradually joined, over the days between May 14 and May 25, by a group of delegates from Virginia and Pennsylvania who would combine to concoct a plan not merely to "amend" the Articles of Confederation, but to set the proceedings of the Convention on a far more ambitious course. The first gathering of these reform-minded delegates took place on the evening of May 16, in the home of Benjamin Franklin, where dinner was served in his impressive new dining room along with a "cask of Porter," which, Franklin reported, received "the most cordial and universal approbation" of all those a.s.sembled. The Pennsylvania and Virginia delegates would thereafter meet frequently during the days leading up to May 25, both in the afternoons in the state house itself and in the evenings in City Tavern or the Indian Queen, to craft an entirely new conception of Continental government.

Franklin's and Was.h.i.+ngton's presence gave the group both dignity and prestige, but it was Madison and James Wilson and Gouverneur Morris of Pennsylvania who provided much of the intellectual leaders.h.i.+p. Wilson, a dour but brilliant Scotsman, was perhaps the only person in the Convention who was Madison's intellectual equal, and he shared Madison's commitment to creating a truly "national" government based on the consent of the people, not the individual states. Gouverneur Morris was nearly as intellectually brilliant as Wilson; he shared with Wilson a desire for a strong national government, but his personality was very different-more mercurial and outgoing (particularly when it came to his amorous relations.h.i.+ps with women). And he was also more openly contemptuous of the excesses of "democracy." Together these men would forge a radical new plan, the Virginia Plan, which would shape the course of events during that summer of 1787.

THE CONVENTION GOES TO WORK.

By seizing the initiative, this small group of nationalist-minded politicians was able to set the terms of debate during the initial stages of the Convention, gearing the discussion toward not whether, but how a vastly strengthened Continental government would be constructed. On May 25, 1787, the Convention finally gathered the necessary number of delegates to open its business, and the following Monday, May 28, the delegates agreed to a proposal that would prove invaluable in allowing men like Madison, Wilson, and Morris to move their plan forward. To prevent the "licentious publication of their proceedings," the delegates agreed to observe a strict rule of secrecy, with "nothing spoken in the house to be printed or otherwise published or communicated." One consequence of this decision was that the delegates were forced to deliberate throughout that Philadelphia summer-with the average daytime temperature in July and August hovering in the eighties and nineties and the intense humidity for which the city is still famous-with the doors of the a.s.sembly Room closed and its windows shut. The more important consequence, amazingly, at least in terms of twenty-first-century political practices, was that the delegates were scrupulous in adhering to the rule of secrecy. Barely a world of their deliberations leaked out of the Convention during the whole of the summer.

Virtually all the delegates took it for granted that the rule of secrecy was wholly appropriate; in the words of Virginia's George Mason, it was "a necessary precaution to prevent misrepresentations or mistakes; there being a material difference between the appearance of a subject in its first crude and undigested shape, and after it shall have been properly matured and arranged."

But was such secrecy appropriate to a democratic republic? Our answer today, of course, would be no. Yet the delegates, if they had had to answer the question, would have been quick to remind us that the political values they were serving, while definitely "republican," were not "democratic." As firm believers in republican values, they were committed to creating a political system that rejected any form of hereditary rule, and that was broadly representative of the public at large-but their commitment to republican values did not extend to an endors.e.m.e.nt of the notion that all men were equally qualified or equally ent.i.tled to play an active part in the creation of a new government.

Protected from a hostile public reaction by the rule of secrecy, the delegates proceeded to debate the Virginia Plan, the essential features of which were: 1. The creation of a "national" legislature consisting of two branches, with members.h.i.+p in each branch to be apportioned according either to "Quotas of contribution" or the "number of free inhabitants." This body would have the power to "legislate in all cases to which the separate States are incompetent" and to "negative all laws pa.s.sed by the several States."

2. The creation of a powerful "National Executive," to be elected by the national legislature.

3. The chief executive, together with "a convenient number of the National Judiciary," would compose a "Council of revision," which could veto laws pa.s.sed by either the national legislature or the various state legislatures.

As the details of the Virginia Plan were revealed to those gathered in the a.s.sembly Room, it became clear that the plan was not a mere revision of the Articles of Confederation but, rather, a bold new start on an entirely new kind of government. The word "national" rather than "federal" was used repeatedly to describe the various branches of the proposed government, and the powers of that government were consistently defined as superior to those of the states. The Virginia Plan also reflected some of the reservations that its authors had with respect to democratic political processes. Of all the branches of the government, only the lower house was to be directly elected by the people; officials in the other branches were to be either indirectly elected or appointed.

Some within the Convention were outraged by the audacity of the plan. James Madison, casting his eyes around the a.s.sembly Room as Virginia governor Edmund Randolph delivered the speech outlining the details of the Virginia Plan, observed a variety of reactions: emphatic agreement among the Virginia and Pennsylvania delegates; mild approval from New York delegate Alexander Hamilton; but clear disapproval from the other two members of the New York delegation, Robert Yates and John Lansing. Even more striking, New Jersey delegate William Paterson was clearly shocked by what he was hearing. A highly intelligent but rigid and puritanical soul, Paterson would emerge as one of the princ.i.p.al spokesmen for the interests of the smaller, less-populous states. Paterson could be seen frantically scribbling on a notepad: "Objection!" He, like Robert Yates, believed that the adoption of the Virginia Plan would create a "consolidated union in which the idea of the states should be nearly annihilated."

But Paterson and Yates, observing the rule of secrecy, confined their outrage to the a.s.sembly Room of the state house. As it would turn out, the rule of secrecy operated powerfully in favor of those delegates who wished to see such drastic change. Had a strong advocate of the sovereign power of the individual states-such as Virginia's Patrick Henry, who was elected a delegate to the Convention but declined to serve-heard of this radical deviation from the instructions of the Continental Congress, he would have mounted his horse and rode to Philadelphia to join his delegation. But Henry and other politicians jealous of guarding the power of their states were not apprised of the proceedings, and for that reason, on May 30-just three days after the Convention began its work-a majority of state delegations, with six of the eight states present voting in favor, agreed that "a national government ought to be established consisting of a supreme Legislative, Executive, and Judiciary." They had voted for a revolution in the structure of America's Continental government.

It was an amazing victory for that small cadre of nationalist-minded delegates who had cooked up the Virginia Plan, but their attempt at revolutionary change, once launched, proved difficult both to sustain and to control. Over the course of the summer, the delegates would debate, disagree, and ultimately compromise on a host of issues. The most divisive of those issues-those involving the apportionment of representation in the national legislature, the powers and mode of election of the chief executive, and the place of the inst.i.tution of slavery in the new Continental body politic-would change in fundamental and unexpected ways the shape of the doc.u.ment that would eventually emerge on September 17, 1787.

THE FOUNDING FATHERS AND FEDERALISM.

The delegates haggled over how to apportion representation in the legislature off and on for the entire period between May 30 and July 16. Those from large, populous states such as Virginia and Pennsylvania argued that representation in both houses should be based on population, while those from smaller states such as New Jersey and Maryland argued for equal representation for each state. The so-called New Jersey Plan, presented by William Paterson in mid-June, called for a "federal" rather than a "national" government, and its essential feature-a single-house legislature in which each state was to have only one vote-seemed to be a reincarnation of the Articles of Confederation. In fact, the New Jersey delegates, along with most of the delegates from other small states, were less concerned about limiting the power of the new government than they were interested in gaining maximum power for their states within the newly strengthened government.

The protracted debate over these alternatives was an unedifying, even unattractive, affair. At one point, Gunning Bedford, a corpulent, bl.u.s.tery delegate from Delaware, confronted the princ.i.p.al supporters of the Virginia Plan from Virginia, Pennsylvania, and Ma.s.sachusetts, thundering, "I do not, gentlemen, trust you." Bedford then threatened that if the small states did not get their way they might well, in pursuit of an alternative union, "find some foreign ally of more honor and good faith."

The compromise that eventually emerged from that debate, championed most energetically by the delegates from Connecticut, was an obvious one-so obvious that it was proposed off and on by several delegates almost from the beginning of the contentious six-week period between the end of May and the middle of July: representation in the lower house would be apportioned according to population, with each state receiving equal representation in the upper house. In the final vote on the Connecticut Compromise, occurring on July 16, five states supported the proposal with four opposing, including Virginia and Pennsylvania, and one state divided. James Madison in particular was disconsolate. He was convinced that the compromise would destroy the very character of the national government he hoped to create. Indeed, the next morning Madison and several other large-state delegates met to consider whether they should leave the Convention altogether. In fact, not only did they not leave the Convention, but they managed to turn defeat into victory. In an astonis.h.i.+ng reversal of his "original intent," Madison, during the debate over ratification of the Const.i.tution, would use his "defeat" in the controversy over representation to fas.h.i.+on an entirely new definition of federalism. In "Federalist No. 39" he defended the proposed new const.i.tution against its critics by praising the different modes of representation in the House and Senate-with the House representing the people of the nation at large and the Senate representing the residual sovereignty of the states-as one of the features that made the new government part national and part federal. No one knew how that new definition of federalism would actually work in practice, and it would remain a source of contention for much of the nation's early history. In this, as in so many areas, the so-called original meaning of the Const.i.tution was not at all self-evident-even to the framers of the Const.i.tution themselves.

THE FOUNDING FATHERS AND THE PRESIDENCY.

The debate among the delegates over the nature of the American presidency was more high toned and, if anything, even more protracted and confusing than that over representation in the Congress. At one extreme, nationalists like James Wilson and Gouverneur Morris argued forcefully for a strong, independent executive capable of giving "energy, dispatch, and responsibility" to the government. They urged their fellow delegates to give the president an absolute veto over congressional legislation. At the other end of the spectrum, Roger Sherman, a plainly dressed, plainspoken delegate from Connecticut who would prove to be one of the most sagacious members of the Convention, spoke for many delegates when he declared that the "Executive magistracy" was "nothing more than an inst.i.tution for carrying the will of the Legislature into effect." This led Sherman to the conclusion that the president should be removable from office "at pleasure" any time a majority in the legislature disagreed with him on an important issue. (By that same logic, Sherman would have allowed the president to be impeached by a majority of Congress for just about any reason at all.) Many-perhaps most-of the delegates thought that the executive should be elected by the national legislature; still others thought the executive should be elected by the state legislatures or even by the governors of the states. James Wilson was virtually the only delegate who came out unequivocally for direct election of the president by the people. He believed that it was only through some form of popular election that the executive branch could be given both energy and independence.

James Madison kept changing his mind. His initial version of the Virginia Plan called for election of the president by the national legislature. And although he has subsequently gained the reputation of being one of the foremost proponents of the doctrine of separation of powers, he muddled things in the Convention by proposing a merging of the executive and judicial powers in a "Council of revision" composed of both the executive and a "convenient number of the National Judiciary." Madison gradually came around to the idea that the executive and judicial functions should be separated, but he continued to argue for the selection of the president by Congress up until the final days of the Convention. After reading Madison's notes on the debates in the Convention-our primary resource for learning about what happened inside the Pennsylvania State House that summer-one gets the sense that his eventual acquiescence to the idea of an electoral college as the method of presidential election was marked as much by weariness as by enthusiasm.

James Wilson, realizing that his proposal for direct popular election of the president was gaining no favor, proposed a version of the electoral college in early June, but the delegates didn't like that proposal any more than they liked his proposal for direct popular election, voting it down overwhelmingly at that point. They voted against some version of the proposal on numerous occasions between early June and early September of 1787, only agreeing to the version contained in our modern Const.i.tution (modified slightly by the Twelfth Amendment) grudgingly and out of a sense of desperation, as the least problematic of the alternatives before them.

It has often been observed that much of the framers' difficulty in deciding how to elect the president was the result of their misgivings about democracy-their fear that the people of the nation could not be trusted to make a wise choice for their chief executive. In truth, it was not so much that the Founding Fathers distrusted the inherent intelligence of the people but, rather, that they had a very clear and realistic understanding of the provincialism of the American people. They understood that America's vast landscape, the poor state of its communications, and the diversity of its cultural character and economic interests would make it extremely difficult for any single candidate to gain a majority of the popular vote. How could a voter in Georgia know the merits of a candidate in New York or vice versa? Thus they very quickly cast aside James Wilson's proposal for direct election of the president as unworkable.

The other obvious solution-election by members of a national Congress whose perspective was likely to be continental rather than provincial-was ultimately rejected because of the problems it created with respect to the doctrine of separation of powers: the president, it was feared, would be overly beholden to, and therefore dependent upon, the Congress for his election. The creation of an electoral college was a middle ground, and while many delegates feared that locally selected presidential electors would be subject to the same sort of provincial thinking as ordinary citizens, they reluctantly came to the conclusion that it was the best they could do while still preserving an adequate separation of power between the executive and legislative branches. It was a highly imperfect solution to a real problem, but in the context of the times, there may well have been no better alternative.

THE FOUNDING FATHERS AND SLAVERY.

The delegates' commitment to principles of equality as articulated in the Declaration of Independence was, even in the case of free adult males, a limited one. (For example, most of the delegates supported the imposition of property qualifications for voters in their individual states.) But nowhere were those limitations more obvious than during those instances when the subject of slavery intruded into their deliberations. By 1787 slavery in America was in a state of decline. It remained a significant part of the social and economic fabric in five of the states represented in the Convention, but only two states-South Carolina and Georgia-were inclined to argue for an expansion of America's "peculiar inst.i.tution." Yet the delegates in Philadelphia failed to eradicate that great contradiction to the core values of liberty and equality on which America had declared its independence. Instead, they enshrined the inst.i.tution of slavery within their new Const.i.tution.

Although neither the word "slave" nor "slavery" is mentioned anywhere in the Const.i.tution, contention over slavery pervaded the debates on the Const.i.tution throughout the whole of the summer of 1787. It was, for example, impossible to discuss questions relating to the apportionment of representation without confronting the fact that the slave population of the South-whether conceived of as residents or property-would affect the calculations for representation. The delegates argued about the proper formula for representing slaves through much of the summer. The final resolution of that issue-a formula by which slaves would be counted as three-fifths of a person in apportioning both representation and taxation-was a purely mechanical and amoral calculation designed to produce harmony among conflicting interests within the Convention. As many disgruntled delegates pointed out, it had little basis either in logic or morality, but in the end, the need for a consensus on the issue, however fragile that consensus might be, outweighed all other considerations.

The debate over the future of the international slave trade was in many respects more depressing than that which culminated in the three-fifths compromise. Only the delegates from South Carolina and Georgia were determined to continue what most other delegates believed to be an iniquitous trade, yet their insistence that the trade continue for at least another twenty years carried the day. However troubled delegates from the other states may have been, their concern for harmony within the Convention was much stronger than their concern for the fate of those Africans whose lives and labor would be sacrificed by the continuation of the slave trade.

Finally, the delegates adopted without dissent a provision requiring that any "Person held to Service or Labour in one State . . . [and] escaping into another, . . . shall be delivered up on Claim of the Party to whom such Service or Labour may be due." By means of that tortured language, and without mentioning either the word "slaves" or "slavery," the delegates made a fugitive-slave clause an integral part of our federal compact. It was the one act of the Convention that not only signaled the delegates' grudging acceptance of slavery but also made the states that had moved either to abolish or gradually eliminate slavery in the aftermath of the Revolution actively complicit in their support of that inst.i.tution.

THE QUESTION OF A BILL OF RIGHTS.

On September 12, just five days before the Convention was to adjourn, George Mason of Virginia rose and expressed his wish that the nearly completed draft of the Const.i.tution be "prefaced with a Bill of Rights." It would, he said, "give great quiet to the people." Citing as examples the bills of rights in the individual state const.i.tutions, Mason believed that the delegates to the Philadelphia Convention might prepare a bill of rights "in a few hours."

Mason had good reason to make such a suggestion. As the princ.i.p.al draftsman of the Virginia Declaration of Rights, he believed that bills of rights articulating the fundamental liberties of the citizenry should be part of any proper const.i.tution. And as the delegates to the Convention would discover in the coming months, there were a good many in America-probably a majority of citizens-who shared that belief. But the delegates must have groaned audibly at Mason's suggestion. Roger Sherman of Connecticut quickly disagreed with Mason, arguing that since there was nothing in the proposed Const.i.tution that was contrary to the provisions in the various state bills of rights, there was no need to duplicate them by adding a bill of rights to it. Mason fought back, insisting that a federal bill of rights guaranteeing that the new government would not encroach on the people's fundamental liberties-such as freedom of speech, press, and religion, and trial by jury-was essential if those liberties were to be protected. But the delegates turned a deaf ear. When the matter was put to a vote, after a discussion lasting no more than a few moments, not a single state delegation supported Mason's proposal.

That decision, arrived at hastily and casually, would prove to be one of the most serious mistakes made by the men who drafted the Const.i.tution. When Thomas Jefferson, serving as amba.s.sador to France, received a copy of the completed Const.i.tution from James Madison, he was unable to contain his unhappiness at the absence of a bill of rights. "The omission of a bill of rights, providing clearly and without the aid of sophisms, for freedom of religion, freedom of the press, protection against standing armies, restriction against monopolies, the eternal and unremitting force of the habeas corpus laws, and trials by jury in all matters," was, Jefferson wrote in dismay to his friend, a grievous error. He believed that a bill of rights was an essential protection "against doing evil, which no government should decline," and he expressed the hope that a bill of rights would be added to the Const.i.tution without delay.

How could the delegates have ignored the lessons of their revolutionary past and not included a bill of rights in their proposed plan of union? In the months following, as they tried to persuade a skeptical public to endorse the doc.u.ment, supporters of the Const.i.tution would argue that the proposed federal government was primarily concerned "with objects of a general nature," and that any attempt to replicate the state bills of rights would be not only redundant but also dangerous. "Who will be bold enough," James Wilson asked, "to undertake to enumerate all the rights of the people?" His fear was that if the enumeration of those rights was not complete, then everything not explicitly mentioned would be presumed not to be a right at all. Madison was equally cavalier, calling the state bills of rights "parchment barriers" that had not served to stop the state governments from invading the rights of their citizens when it suited their purpose.

In fact, these glib rationalizations were probably not the real reasons for the omission of a bill of rights. By mid-September the delegates were profoundly weary of their labors and desperately anxious to return to the comfort of their homes. Although Mason had claimed that "a bill might be prepared in a few hours," the delegates in the hot, stuffy a.s.sembly Room knew better. It would be a difficult, arduous task filled with contention. And they wanted to go home. They would, however, pay a price for their impatience in the coming months.

"APPROACHING SO NEAR TO PERFECTION"

As the Convention prepared to adjourn, the delegates were hardly of one mind about the nature of the government they had created. Some, like Madison, had come with the intention of creating a truly supreme, "national" government, but by the end of the summer most delegates were referring to the proposed government as "federal" in its character. In fact, the framers-still fearful of the aggressive, corrosive effects of unrestrained power-tried to strike a balance between the two by creating a government of limited powers that nevertheless had the requisite "energy" to do all the things promised in the preamble: "to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty." A tall order, especially when they were pledging at the same time to create a government that divided power between the states and the nation in such a way as to allay people's fears of an overbearing central power. As the delegates made their decisions about whether to sign the Const.i.tution on September 17, 1787, there was little common understanding among them about how this new part-national, part-federal conception of federalism would actually work in practice, but they had at least made a start in creating a framework within which issues of state and national power could be negotiated.

Similarly, most of the framers understood that it was necessary to invigorate executive power, but at the same time they wished to avoid at all costs creating anything that resembled the unchecked power of the British king. By rendering the selection of the president independent of the legislature and by giving that president a limited veto power over congressional legislation, the framers were on the whole remarkably successful in both invigorating and containing executive power. Successive generations have debated where the balance point between invigoration and containment should rest, but the framers were relatively successful in setting the general parameters for that debate.

The framers' greatest failure occurred in the area of slavery and race. It is perhaps unrealistic to expect these eighteenth-century men to have moved decisively against the inst.i.tution of slavery, but they failed to seize the opportunity to take even minimal steps that might have eased the way toward the ultimate abolition of slavery. By creating a process by which the Const.i.tution could be amended, they did provide for a way in which their initial mistakes could be corrected, but since the Const.i.tution required the approval of three-quarters of the states for any amendment to take effect, those states that had a vested interest in keeping the inst.i.tution of slavery in place had an effective veto power over anything that might substantially threaten it. It would take a b.l.o.o.d.y, ghastly civil war and the loss of six hundred thousand American lives to effect the kind of const.i.tutional change that would eliminate the most fundamental paradox at the nation's core.

ON THAT FINAL DAY OF THE CONSt.i.tUTIONAL Convention, it was left to the Convention's oldest delegate, eighty-one-year-old Benjamin Franklin, to sum up the nearly four months of debate, disagreement, and occasional outbursts of ill temper that had marked the proceedings of that summer. Franklin observed that whenever "you a.s.semble a number of men to have the advantage of their joint wisdom, you inevitably a.s.semble with those men all their prejudices, their pa.s.sions, their errors of opinion, their local interests, and their selfish views. From such an a.s.sembly can a perfect production be expected?" The wonder of it all, Franklin a.s.serted, was that the delegates had managed to create a system of government "approaching so near to perfection as it does."

Franklin acknowledged that there were "several parts of this Const.i.tution which I do not at present approve," but, he added, "the older I grow the more apt I am to doubt my own judgment and pay more respect to the judgment of others." Franklin concluded by asking each of his fellow delegates to "doubt a little of his own infallibility" and step forward to sign the Const.i.tution. In that spirit of humility, thirty-nine of the forty-two delegates present on that last day would take that important step forward and, in the process, move America one step forward in achieving a "more perfect Union."

CHAPTER FOUR.

THE CONTEST OVER RATIFICATION.

AMERICA' S FIRST NATIONAL REFERENDUM AS THE DELEGATES TO THE PHILADELPHIA CONVENTION made their way back to their home states, the words engrossed on the four sheets of parchment they had drafted that summer represented little more than opinion. They lacked the sanction of the Continental Congress, the state governments, or "We the People." By the terms of the proposed Const.i.tution, the new government would take effect when nine of the thirteen states, deliberating in specially called ratifying conventions, added their a.s.sent to the doc.u.ment. This was yet another of the revolutionary provisions of the proposed Const.i.tution, as under the terms of the Articles of Confederation unanimous approval of all thirteen state legislatures was necessary for any amendment to take effect. But having already made the decision not to amend the Articles but, instead, to create an entirely new scheme of government, the framers devised a ratification procedure aimed at avoiding the necessity of unanimous approval.

The debate over the proposed Const.i.tution in the individual states was America's first national referendum-the first time voters in all the states were asked to express their opinion about a specific subject. Unlike in state or local elections, where multiple candidates and multiple issues could often produce ambiguous results, the decision facing Americans during the ratification debates was a stark one: yes or no.

The debate over ratification was, first and foremost, a partisan political contest. In that contest supporters of the Const.i.tution enjoyed some important advantages. In what would prove to be a brilliant tactical move, they appropriated the name Federalists from their opponents, leaving those who opposed ratification with the unappealing label of Anti-Federalists. In fact, most scholars agree that the true "federalists," in the original meaning of that word, were the opponents of the Const.i.tution, who continued to believe in a central government of strictly limited powers, operating within the framework of a confederation of independent and sovereign states.

Equally important, the Federalists were able to capitalize on a key factor working in their favor: momentum. They immediately sent the proposed Const.i.tution to the Continental Congress, and then persuaded the Congress to release the doc.u.ment to the states for their consideration within eleven days after the Convention adjourned. At that point supporters of the Const.i.tution-many of whom had served in the Const.i.tutional Convention and were already well prepared with arguments defending their actions-stole the initiative from their opponents. Many Anti-Federalists, though alarmed at the extent of the changes proposed by the Const.i.tution, had not yet had time to formulate coherent arguments against ratification. Between the end of September and January 9, five states-Delaware, Pennsylvania, New Jersey, Georgia, and Connecticut-ratified the Const.i.tution. Only in Pennsylvania was there significant opposition, and even in that state the superior organizational abilities of the Federalists-in particular, their control of most of the newspapers reporting on the debate over the Const.i.tution-enabled them to prevail in the state ratifying convention by a two-to-one margin. As the Const.i.tution was transmitted to the remaining states, the conventions in those states were confronted not only with a decision about whether or not to adopt the Const.i.tution but also with the fact that more than half of the necessary nine states had already decided to do so.

Nevertheless, opponents of the Const.i.tution in Ma.s.sachusetts, the sixth state to consider the doc.u.ment, put up a fight. Ma.s.sachusetts was the third-most-populous state in the union. It had been in the forefront of the fight to protect American liberty in the years leading up to independence, and at least of a few of its princ.i.p.al leaders-Samuel Adams and John Hanc.o.c.k in particular-had not partic.i.p.ated in the Const.i.tutional Convention and were known to be skeptical about the proposed Const.i.tution. As the Ma.s.sachusetts convention opened for business in mid-January, most observers calculated that the delegates were at best evenly divided and, possibly, leaning toward rejecting the Const.i.tution.

As the debate on the Const.i.tution unfolded, many of its critics focused on the absence of a bill of rights, and this issue became a rallying point for opposition in Ma.s.sachusetts. The supporters of the Const.i.tution, sensing that they might lose the battle for ratification, gave way, holding out the promise that they would add a bill of rights in the form of amendments as soon as government under the new Const.i.tution commenced. Although many of the opponents of the Const.i.tution demanded amendments as a precondition to ratification, the promise of subsequent amendments was sufficient to bring influential delegates such as John Hanc.o.c.k and Samuel Adams over to the side of the Federalists. By a slim margin-187 to 168-the Ma.s.sachusetts convention ratified the Const.i.tution on February 6, 1788.

The issue of prior versus subsequent amendments would be a part of the debate in all the remaining states considering the Const.i.tution, but as the number of states agreeing to adopt the Const.i.tution approached the necessary nine, momentum continued to favor the Federalists. Rhode Island, which had refused to attend the Convention in Philadelphia, declined even to call a ratifying convention in March of 1788, but following Rhode Island's rejection, Maryland agreed to the Const.i.tution in April and South Carolina added its a.s.sent in May, bringing the total in the Federalist win column to eight. New Hamps.h.i.+re and Virginia debated the Const.i.tution in June, and although New Hamps.h.i.+re's ratification on June 21, 1788, made adoption of the Const.i.tution official, the debate in Virginia-the nation's most populous state and home to George Was.h.i.+ngton, the man who was everyone's choice to be president of the new United States-was considered by many to be crucial to the success or failure of the new union.

Virginia was also home to Patrick Henry, second only to Was.h.i.+ngton in popularity in his home state and perhaps the most formidable opponent of the Const.i.tution in America. When George Was.h.i.+ngton sent him a copy of the Const.i.tution soon after the Philadelphia Convention adjourned, Henry was nearly speechless with anger at the way in which the Convention had exceeded its authority. Responding to Was.h.i.+ngton's letter transmitting the copy of the Const.i.tution to him, Henry maintained a polite and civil tone, but he was deeply unhappy, telling Was.h.i.+ngton that his distress over the doc.u.ment was "really greater than I am able to express." From that moment on, Henry worked tirelessly to prevent the adoption of the Const.i.tution in his home state.

The battle in the Virginia ratifying convention featured Henry in the opposition against the Const.i.tution's princ.i.p.al architect, James Madison. Henry, the firebrand of the Revolution in Virginia, scaled new oratorical heights in denouncing the Const.i.tution's tendencies toward a "consolidated government." Madison calmly, systematically, and masterfully reb.u.t.ted Henry's criticisms. In the end, the issue of prior versus subsequent amendments shaped the outcome. When the Virginia convention finally voted on the Const.i.tution on June 25, 1788, the Federalists narrowly prevailed, eighty-nine to seventy-nine-but only after agreeing to propose to the First Federal Congress "whatsoever amendments may be deemed necessary."

At that point it became clear that a new government under a new const.i.tution would go forward, but one of the young country's most populous and prosperous states, New York, had yet to consider the doc.u.ment. Two of the three New York delegates to the Const.i.tutional Convention, John Lansing and Robert Yates, had staunchly opposed the Const.i.tution every step of the way in Philadelphia. They continued their opposition during the ratification debate in New York, and, to make matters more difficult for supporters of the Const.i.tution, New York's governor, George Clinton, was believed to dislike the proposed Const.i.tution as well. It looked like the Const.i.tution would go down to defeat in that state, but when news of Virginia's ratification reached New York, it became harder for the voters there to contemplate a life outside the strong union that was by then a foregone conclusion. As a consequence, New York ratified in late July of 1788, followed by the two laggards: North Carolina, in November of 1789, and Rhode Island, in May 1790.

The American people, with memories of the excesses of British rule still fresh in their minds, continued to be fearful of an overly centralized government, yet the Federalists had persuaded a substantial majority of those people to overcome their fears and adopt a Const.i.tution giving the new federal government vastly increased powers. Some of their success in doing so was owed simply to their superior preparation and organizational skills; they had seized the initiative and swung a largely uniformed populace over to their side. But the ratification contests also produced an impressive body of political writing, some of it rising above its primary purpose of political persuasion to achieve enduring intellectual importance.

Between late September 1787 and the fall of 1788, several hundred pamphlets and newspaper essays appeared, both supporting and opposing ratification of the Const.i.tution. The most influential of these were the eighty-five essays written by Alexander Hamilton, James Madison, and John Jay, which appeared under the pseudonym Publius. Hamilton, who had argued in the Const.i.tutional Convention in Philadelphia for a government based closely on the aristocratic English const.i.tution, had played an insignificant-perhaps even harmful-role in that body, but he was the man most responsible for orchestrating the writing of what came to be called The Federalist Papers. Although Hamilton was not wholly pleased with the final product of the Const.i.tutional Convention's labors-he thought the proposed government was too weak and too "democratic"-he took the initiative to recruit James Madison and John Jay to join him in the effort. Although before the spring of 1788 they did not circulate much beyond New York, and therefore may not have had much of an impact on the ratification contest in most states, The Federalist Papers have by now achieved the status of a canonical text of American government and const.i.tutionalism. Extended excerpts from three of the most important of those essays-numbers 10, 51, and 78-are included in this volume to give readers an appreciation for the extraordinarily high quality of political discourse in the founding era.

Although there was no single set of Anti-Federalist writings that matched The Federalist (as the first compilation of the papers was t.i.tled) either in its immediate impact or its influence on subsequent generations, Anti-Federalist writers did publish more than two hundred pamphlets and broadsides in opposition to the Const.i.tution. Because Anti-Federalist critics raised every objection they could possibly devise in their attempt to defeat the Const.i.tution, their critique lacks the intellectual coherence of The Federalist, but the broad themes of that critique-a distrust of concentrations of government power, and an emphasis on the role of ordinary citizens in preventing government encroachments on the people's liberty-have proven to be of enduring importance in American const.i.tutional discourse.

As the debate over the Const.i.tution concluded and the new government prepared to begin its operations, there remained fundamental differences of opinion among America's political leaders and the country's citizens about the meaning of the words crafted by the framers on the four parchment pages during that summer in 1787. The men who drafted the Const.i.tution were not political philosophers but, rather, eighteenth-century politicians confronted with a daunting array of competing interests, provincial attachments, and real-life problems as they sought to hammer out a workable form of federal union. The form the eventual doc.u.ment would take was legal, but the process by which they arrived at the final language of the doc.u.ment was intensely political. After nearly four months of debate, disagreement, and numerous compromises (some of which, like those involving slavery, would come back to haunt the young nation), they finally arrived at a fragile consensus, producing a const.i.tution that was, as Benjamin Franklin admitted, far from a "perfect production."

Whatever pride the framers may have taken in their achievement, few would have claimed that the language they had crafted was somehow immutable. They were all too aware that many of the compromises that had allowed them to reach their fragile consensus on September 17-most notably, those involving the division of power between state and federal governments within a new form of federal union, and the multiple compromises relating to the powers and mode of election of the executive branch-might serve to confuse, not clarify, the "ordinary meaning" of the words in the doc.u.ment they had devised. And once the new government under the Const.i.tution commenced its operations, they would become even more acutely aware of the differences of const.i.tutional opinion that would continue to divide them. The framers of the Const.i.tution who met in Philadelphia in the summer of 1787 can be justly praised for creating a plan of government that was, in George Was.h.i.+ngton's words, "so little liable to well-founded objections." The popularly elected delegates to the state ratifying conventions helped give the people's sanction to that plan. But the work of creating an American nation, governed under the Const.i.tution, still lay ahead.

CHAPTER FIVE.

ESTABLIs.h.i.+NG GOVERNMENT UNDER THE CONSt.i.tUTION, 1789-1801.

JAMES MADISON ONCE REMARKED THAT it was the thirteen state ratifying conventions that breathed "life and validity" into the Const.i.tution; with the a.s.sent of those ratifying conventions, the const.i.tutional history of America as a nation was about to begin. As historian Bernard Bailyn has written, the Const.i.tution amounted to no more than "words on paper" until President George Was.h.i.+ngton and the First Federal Congress began to implement the theoretical principles enunciated in that doc.u.ment. From that time forward, America's const.i.tutional history would be shaped by political leaders and ordinary citizens alike, as they sought to implement the new nation's experiment in union.

It is no accident that George Was.h.i.+ngton has gone down in history as "the Father of His Country." It is not merely that he had been commander in chief during the colonies' most perilous hour, in the American War for Independence, or that he reluctantly came out of retirement to serve as president of the Convention that brought the Const.i.tution into being. His active presence may have been indispensable on each of those occasions, but his role as America's first president was of even greater importance. He knew that in spite of the words written on the parchment pages of the Const.i.tution, the new federal government and the union it was intended to achieve were held together by tenuous threads. He knew that every action he took as the nation's first chief executive would be critically important in adding substance to the bare superstructure created by the Const.i.tution, and that those actions would serve as precedent for subsequent generations.

President Was.h.i.+ngton took his oath of office in the Senate Chamber of Federal Hall in New York on April 30, 1789. The Const.i.tution prescribes the precise words of the presidential oath: "I do solemnly swear (or affirm) that I will . . . to the best of my Ability, preserve, protect and defend the Const.i.tution of the United States." As he took that first oath of office, Was.h.i.+ngton set a precedent that, down to the present day, most presidents would follow: he added to the end of the oath the phrase "so help me G.o.d," thereby injecting the deity into a government that was, by the terms of the Const.i.tution itself, entirely separate from matters of religion or the church. His inaugural address-itself a precedent-setting event-was quintessential Was.h.i.+ngton: it combined an outward humility about his abilities to carry out the enormous responsibilities of the office with a dignified and self-confident manner that left no one in the audience with any doubt about his ability to shoulder those responsibilities.

As Was.h.i.+ngton was a.s.suming the responsibilities of the presidency, the First Federal Congress, which had been in session since early March, was already hard at work fulfilling the most important promise made by the Federalists during the ratification debates: the promise that a bill of rights would be added to the Const.i.tution. James Madison took the lead in steering a draft of a bill of rights through the Congress. On May 4, 1789, he announced his intention of introducing into the House of Representatives a set of amendments designed to "make the Const.i.tution better in the opinion of those who are opposed to it." The content of what came to be known as the Bill of Rights was strongly influenced by similar bills of rights incorporated into the revolutionary state const.i.tutions and, in particular, by the Virginia Declaration of Rights drafted by George Mason and adopted in June 1776. Congress approved a revised set of twelve amendments on September 25, and sent them to the states for ratification. Two of the amendments-one dealing with the apportionment of representation in the House of Representatives and the other prohibiting Congress from granting pay raises to its members before another election had been held-were not ratified by the states, but by December 15, 1791, the necessary number of states had ratified the other ten, and the Bill of Rights became a part of the United States Const.i.tution.

The president's cabinet, consisting of the most senior officers of the executive branch below the president himself, is only hinted at in the Const.i.tution. Article II, Section 2, gives the president the power to appoint, with the consent of a majority of the members of the Senate, "Amba.s.sadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for." But the Const.i.tution is silent on how the "other Officers" of the executive branch are to be appointed. In the absence of specific wording on the subject, the First Congress took the lead in creating a system of administrative departments that would work with the president in carrying out the duties of the executive branch. The Congress began steps to create three departments during its first months of operation: the Department of Foreign Affairs (which in revised form became the Department of State), whose first secretary would be Thomas Jefferson; the Department of the Treasury, headed up by Was.h.i.+ngton's brilliant and loyal Revolutionary War aide-de-camp, Alexander Hamilton; and the Department of War, whose first secretary was another military compatriot of Was.h.i.+ngton's, General Henry Knox.

The debate over the creation of the Department of Foreign Affairs led to some disagreement over whether Congress or the president had the power to remove a cabinet officer; the decision arrived at on that occasion was that the power belonged to the president. In fact, the matter remained a subject of contention between Congress and the president for more than a century, although the sole authority of the president to remove cabinet officials seems now very well established.

Congress was even more aggressive about a.s.serting a role that was equal to that of the executive branch with respect to the Department of the Treasury. Since the power over the purse was considered to be the most important that Congress possessed, the members of the First Congress, in creating the office of secretary of the treasury, required that the secretary "give information to either branch of the legislature, in person or in writing . . . respecting all matters referred to him." Although the secretary of the treasury has proven to be primarily an agent of executive power, Congress has always wished to keep close watch over the Treasury Department's activities.

Congress's other significant action during its first session was to fill in some of the Const.i.tution's missing pieces with respect to the federal judiciary. The sections in the Const.i.tution on the structure and powers of the judiciary are exceptionally vague. Article III states simply that "the judicial power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish." The courts' powers were similarly vague: they would have authority in "all Cases, in Law and Equity, arising under this Const.i.tution, the Laws of the United States, and Treaties made," but where that authority began and ended was anyone's guess. Almost immediately after the First Congress convened, a special judiciary committee, chaired by Connecticut's Oliver Ellsworth, a member of the Const.i.tutional Convention in 1787 and a future chief justice of the Supreme Court, began meeting. In September 1789, Congress pa.s.sed the Judiciary Act of 1789. It created a federal court structure that has remained largely unchanged up to the present day, with three levels of federal courts: in the bottom tier, a set of district trial courts that empanel juries and hear cases; circuit courts that hear serious crimes involving sums of money over five hundred dollars, as well as hearing appeals from the district courts; and finally, the Supreme Court, which stands at the top of the hierarchy and in certain instances hears cases brought to it from the circuit courts of appeals.

The Judiciary Act of 1789 stipulated that the Supreme Court would consist of six justices, a number expanded by Congress to seven in 1807, then to nine in 1837 (Congress expanded the number to ten in 1863, but in 1869 it was reduced once again to nine, where it has remained up to the present day). The act defined the authority of the court narrowly, although it did grant the Supreme Court jurisdiction over appeals from state courts on matters touching on federal law. Over time the Supreme Court has a.s.serted its power to hear appeals from state courts more aggressively, but in 1789 the precise jurisdiction of the Supreme Court with respect to state court cases was anything but clear. Initially, judges of the circuit courts were drawn from both the district courts and the Supreme Court, with the result being that Supreme Court justices had the arduous duty not only of doing their designated jobs but also of riding circuit in various regions of the country hearing cases on appeal from the district courts. Although the Judiciary Act of 1789 went part of the way toward putting flesh on the bare-bones structure of the federal judiciary as defined in the Const.i.tution, the development of the judicial branch as a powerful component of the triad of executive, legislative, and judicial power remained unrealized in 1789.

Finally, the Judiciary Act of 1789 took one other important step in helping to shape the president's cabinet by creating the office of attorney general, a position that President Was.h.i.+ngton immediately filled with the appointment of his friend and former Virginia governor Edmund Randolph.

The question of whether and under what circ.u.mstances the president should exercise a veto over congressional legislation was a subject of considerable disagreement in the Const.i.tutional Convention. The final language of Article I, Section 7, stipulates that the president can veto a law pa.s.sed by Congress, but Congress retains the right to override the veto if two-thirds of the members of both houses choose to do so. In 1792 Was.h.i.+ngton received a bill from Congress that would have given some districts more than the one member of the House of Representatives for every thirty thousand inhabitants spelled out in the Const.i.tution. Accordingly, Was.h.i.+ngton vetoed the bill on the grounds that it was in violation of the language of the Const.i.tution. His veto did not provoke significant opposition in the Congress, but it would be his only veto of a congressional bill. Indeed, neither of his immediate successors, John Adams and Thomas Jefferson, would make use of the veto power, and it would not be until the presidency of Andrew Jackson that a chief executive would veto a bill, not on const.i.tutional grounds, but rather because he disagreed with the policies proposed by the bill.

President Was.h.i.+ngton was the most influential in setting const.i.tutional precedents that would determine the way the government would operate in subsequent generations, but the policies proposed by his secretary of the treasury, Alexander Hamilton, would play a hugely important role in enhancing the powers of the new federal government and, in the process, precipitate the first important const.i.tutional debate in the young nation's history.

During the years 1790-91, Hamilton put forward ambitious proposals to put the young nation's finances and economy on a stronger footing. Hamilton proposed not only to pay off the debts incurred by the Continental government during the Revolutionary War but also to a.s.sume responsibility for the debts of the individual state governments. He hoped to establish the precedent that the federal government, and not the state governments, was the ent.i.ty responsible for overseeing the financial well-being of the nation's economy. There was heated opposition to Hamilton's plan from those who feared that his proposal to pay off the state debts amounted to usurpation of state power, but Hamilton's proposals pa.s.sed Congress and were signed into law by President Was.h.i.+ngton. Next, Hamilton proposed the creation of a national bank: the Bank of the United States. In one sense Hamilton's proposed bank was to operate like a private corporation, with a board of directors composed largely of private citizens and with a responsibility to return a profit to its shareholders. But it was also intended to function as a public ent.i.ty, with the authority to handle many of the government's financial policies and transactions.

Congress pa.s.sed the bank bill in February 1791 and transmitted it to President Was.h.i.+ngton for his approval. Mindful that many in Congress had strong objections to yet another Hamiltonian attempt to centralize power in the hands of the federal government, Was.h.i.+ngton sought opinions on the bill's const.i.tutionality from both Hamilton and the secretary of state, Thomas Jefferson. Jefferson objected to the bill on two grounds. First, he argued that nowhere in the Const.i.tution was the Congress empowered to charter a bank and that the Tenth Amendment, which reserves all powers not specifically enumerated in the Const.i.tution to the states, rendered the bank bill unconst.i.tutional. Jefferson then laid down the doctrine of what would come to be called "strict construction," arguing that the final paragraph of Article I, Section 8, of the Const.i.tution, giving Congress the power to pa.s.s laws "necessary and proper" for carrying into effect the enumerated powers, needed to be interpreted narrowly. In Jefferson's reading of that clause, the so-called unenumerated powers of Congress needed to be "indispensable" or of an "invincible necessity." He could see no such necessity in Hamilton's bank bill. Hamilton, arguing for a broad construction of the "necessary and proper" clause, defined the clause as sanctioning actions by Congress that would be "useful," "needful," or "conducive" and defended his bill. President Was.h.i.+ngton, after considering the two arguments, sided with Hamilton and signed the bill into law, but the const.i.tutional line of division between "strict constructionists" and "broad constructionists" would remain an important part of the debate on how to interpret the Const.i.tution from that time right up to the present day.

The const.i.tutional division articulated during the debate over the Bank of the United States, along with important differences of opinion over the proper conduct of American foreign policy, led to an entirely unexpected development in American life: the development of organized political parties. These divisions were initially only loosely formed coalitions in the United States Congress, but they were gradually transformed into self-conscious ent.i.ties founded on a large popular base throughout the country as a whole. These nascent political parties began to appear during the second term of President Was.h.i.+ngton's administration, and then increased in importance and intensity during the administration of Was.h.i.+ngton's successor, John Adams. Those favoring a strict construction of the Const.i.tution also tended to be wary of the Was.h.i.+ngton and Adams administrations' foreign policies. They believed those policies to be overly friendly to the monarchical government of Great Britain and insufficiently supportive of America's revolutionary ally France, which in 1789 had undergone its own revolution inspired in part by the principles of the American Revolution. James Madison, one of the architects of the Const.i.tution and one of the leading Federalists supporting it during the ratification debates, joined with Thomas Jefferson as a leader of what would come to be called the Jeffersonian Republican Party. Although Alexander Hamilton was responsible for many of the policies that would define the agenda of what came to be known as the Federalist Party, President Was.h.i.+ngton and President Adams were chiefly responsible for implementing those policies.

As candidates for public office at all levels found it necessary to take positions on the issues that divided Federalists and Republicans, popular awareness of national political issues increased. More and more frequently, the outcome of elections, particularly to Congress, turned not on traditional notions of who might be the wisest or most virtuous candidate but, rather, on the party identification of the candidates. With the retirement of President Was.h.i.+ngton in 1796 (his decision not to seek a third term would const.i.tute yet another unofficial const.i.tutional precedent, one that held sway until 1940, when President Franklin D. Roosevelt successfully sought a third term), partisan attention began to focus on the election of the president.

Beginning in 1796, but reaching a higher level of sophistication in 1800, leaders of the two parties aggressively recruited voters to cast their ballots for presidential electors pledged in advance to the respective standard-bearers of the two parties. This would have a profound effect on the way in which one provision of Article II, Section 1, pertaining to the way the electoral college was to select a president, worked. The Const.i.tution stipulates that the individual states will determine the manner in which electors are selected. In the beginning, some were elected from individual electoral districts, some were selected by a statewide ballot, and still others were selected by the state legislatures. But whatever the mode of selection, the framers of the Const.i.tution a.s.sumed that those voting for the presidential and vice-presidential electors would do so on the basis of the prospective elector's standing in his state or local community, and that those elected to the position would then use their own independent judgment in casting their ballots in the electoral college. With the advent of political parties, candidates for elector now ran on the basis of their support for the presidential and vice-presidential nominees of the respective parties. In that fas.h.i.+on, the selection of the president and vice president, initially conceived as a process in which the people would be only indirectly involved, began to operate in a far more democratic fas.h.i.+on, with the two parties actively recruiting the voters