Historians on America by Doug Linder, Carl F. Kaestle, et al - HTML preview

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making treaties or borrowing money. Amendments to

semble “for the sole and express purpose of revising the

the Articles required the assent of all the states, giving

Articles of Confederation” and reporting to Congress re-

every state a liberum veto, that is, sufficient veto power

visions which would become effective only when agreed

to paralyze democratic process. Tiny Rhode Island could

to in Congress and confirmed by the states.

thus thwart the will of the other 12 states – as it did in

vetoing a proposal to give Congress the power to levy

James Madison and the

duties on imports.

In particular, commercial rivalries spawned trade

Virginia Plan

discrimination among the states. Landlocked states

found themselves at a notable disadvantage, dependent

In spite of the innate conservatism of the states, how-

upon states with good seaports. James Madison likened

ever, once assembled, the convention proved decisive.

New Jersey, situated between New York and Philadel-

A remarkable group of 55 men assembled in Philadelphia

phia, to “a cask tapped at both ends,” and North Caro-

in May 1787. Their grasp of issues had been honed by

lina, between the deep harbors of Hampton Roads and

wide experience in public life – over half had served in

Charleston, to “a patient bleeding at both arms.” The

Congress, seven had been state governors, and a num-

feebleness of the central government was further high-

ber had been involved in writing state constitutions.

lighted by the lack of executive or

George Washington, the general from

judicial power to deal with domestic

Virginia who had led the war against

disorder. For example, beginning in

the British, brought special prestige

1786, during a period of economic

to the gathering when he agreed to

depression, mobs of impoverished

serve as its presiding officer. Other

farmers in western Massachusetts

notables included Alexander Hamil-

prevented the courts from func-

ton (New York), Benjamin Franklin

tioning and ordering foreclosures.

(Pennsylvania), and James Wilson

Daniel Shays, a farmer and former

(Pennsylvania). Perhaps the most

revolutionary officer, led a force

conspicuous absence was Thomas

attempting to seize the arsenal at

Jefferson, who had drafted the

Springfield but was repulsed. In

Declaration of Independence but

general, perhaps no flaw in the

who was now serving as the United

Articles was as glaring as the in-

States’ minister to Paris.

ability of the central government to

It soon became apparent that the

act directly upon individuals, rather

most important and respected voice

than hope for the states to act.

at the convention was that of James

In 1785,Virginia and Maryland

Madison, of Virginia. Active in Vir-

appointed commissioners to settle

ginia politics, Madison had acquired

disputes over uses of the Chesa-

Signed in 1787, the Constitution of the United States helped a national reputation as a member of peake Bay and its tributary rivers.

create modern democracies worldwide.

the Continental Congress, where he

These delegates then called for the

was instrumental in bringing about

states to be invited to discuss whether a more “uniform

Virginia’s cession of its claim to western territories, creat-

system” of trade regulation might be in their “common

ing a national domain. Madison became increasingly

interest.” Congress responded by calling a meeting at

convinced that the liberty of Americans depended on the

Annapolis in 1786. Only five states attended that meet-

Union’s being sufficiently strong to defend them from

ing, and its members recommended that there should be

foreign predators and, at home, to offset the excesses of

a constitutional convention in Philadelphia to consider

popular government in the individual states. No one

what should be done “to render the constitution of the

came to Philadelphia better prepared. He had taken

federal government adequate to the exigencies of the

the lead in seeing that the nation’s best talent was at the

Union. ...” Virginia took the lead in appointing a delega-

convention. Moreover, in the weeks before the meet-

tion, and other states followed suit, forcing Congress’s

ing, he had read deeply in the experiences of ancient

hand. Finally, in February 1787, Congress endorsed

and modern confederacies and had written a memo-

the calling of a convention. Significantly, however,

randum on the “Vices of the Political System of the

Congress’s resolution said that the convention should as-

United States.” First to arrive in Philadelphia, Madison

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persuaded Virginia’s delegation to propose a plan which,

The Great Compromise and

far from simply revising the Articles, would replace them

with a national government of sweeping powers. Deriv-

Other Compromises

ing its authority from the people, Congress would have

the power “to legislate in all cases to which the separate

States are incompetent, or in which the harmony of the

On June 13, the Virginia Plan, with some revisions,

United States may be interrupted by the exercise of indi-

was reported out of the Committee of the Whole.

vidual Legislation.” Further departing from the Articles,

On June 15, Paterson, speaking for the plan’s opponents,

the Virginia Plan called for the new Constitution to be

introduced the New Jersey Plan. Under this plan, each

ratified, not by the state legislatures, but by conventions

state would have an equal vote in a unicameral Congress.

elected by the people of the several states.

Resolving themselves once again into a Committee

Resolving themselves into a Committee of the Whole,

of the Whole, the delegates debated the merits of the

the delegates debated the merits of the Virginia Plan.

Virginia and New Jersey Plans. On June 19, the commit-

Those urging an expansion of national powers, led by

tee voted, seven states to three (with Maryland divided),

Madison and James Wilson, thought it essential to scrap

to stay with the Virginia Plan. The matter remained

the unworkable system of a central government at-

unresolved, with votes settling into a pattern of six states

tempting to effect policy through the states. Instead,

(Massachusetts, Pennsylvania, Virginia, the Carolinas,

they asserted, the national government must operate

and Georgia) against Connecticut, New York, New Jer-

directly on individuals and, through its executive and

sey, and Delaware, with Maryland divided. In late June,

judicial branches, be able to enforce its laws and decrees.

Connecticut’s Oliver Ellsworth proposed a compromise

Principles of individual equality, moreover, called for

– population to be the basis for representation in one

representation in Congress to be based on population,

house, the states to have equality in the other.

thus abandoning parity among the states. Madison and

In early July, the convention voted on Connecticut’s

his allies were hoping to build upon a sense, widely held

proposal for state equality in the senate, but the motion

among the delegates, that ad hoc or piecemeal reform of

failed on an equal division (with Georgia divided). The

the existing system would no longer suffice.

convention appeared to have arrived at deadlock. Look-

Radical reform was, however, too bold for many

ing for a way out of the predicament, South Carolina’s

delegates from the smaller states. While they might

Charles C. Pinckney asked for the appointment of a

concede the need for enlarging the powers of the cen-

grand committee. That committee then ratified what has

tral government, including giving it the power to raise

come to be called the Great Compromise – proportional

its own revenue and to regulate commerce, the smaller

representation in the lower house, states’ equality in

states feared domination by the large states. The central

the upper house. Even while the larger states preferred

question was that of representation. New Jersey’s William

representation based on population as the basic rule,

Paterson insisted that his state could “never confeder-

some of their delegates preferred compromise to risking

ate on the plan before the committee.” With Madison

a walkout by small state delegates. Virginia’s George

and Wilson continuing to insist on a nationalist plan, it

Mason said that he would “rather bury his bones” in

seemed possible that the convention delegates, whatever

Philadelphia than see the convention dissolved without

their agreement on other matters, might founder on the

agreement upon a plan of government. On July 16, the

issue of representation.

convention voted for the compromise, five states in favor,

four opposed, one divided (with New York not present).

Notwithstanding grumbling by some delegates from

the larger states, the most contentious issue had now

been resolved, and the convention could move on to

other questions. Election of the executive proved a

thorny issue. The Virginia Plan had provided for an

executive elected by the legislature; this, however, would

create a dependent executive branch – a defect of many

of the state constitutions. Few delegates were so bold as

to suppose that direct election by the people was a wise

move. Ultimately, the convention opted for a device – an

awkward one to the modern mind – of having an elector-

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al college choose the president. Each state was entitled,

of rights that would specify and protect the rights of in-

by whatever method it pleased, to select electors equal

dividual citizens. Others argued, however, that nothing

in number to the number of that state’s senators and rep-

in the Constitution would infringe the rights guaranteed

resentatives. The electors would meet in their respective

in the state constitutions. Mason’s proposal was rejected,

states and vote for the president and vice president. The

although it would be revived during the ratification

subsequent rise of political parties, however, has ended

debates.

the framers’ notion that electors would actually deliber-

The convention was moving to its conclusion. On

ate on their choices for national leadership.

September 17, Benjamin Franklin, at age 81 the con-

On July 24, the convention appointed five members to

vention’s patriarch, pleaded with anyone who had some

a Committee of Detail, whose job it was to draft an ac-

reservations about the meeting’s product to “doubt a

tual constitution embodying the fundamental principles

little of his own infallibility.” Looking ahead to the rati-

thus far approved by the whole body. The committee’s

fication process, the Constitution’s proponents wanted

members seem to have assumed that they were at liberty

a unanimous result. Of the 42 members (of the original

to make substantive changes of their own. The most

55) still present on September 17, all but three signed

important of these was, in place of a general statement

the final document. As representatives from each state

of Congress’s powers, a clear enumeration of its powers.

had concurred in the result, Gouverneur Morris devised

Leading the list were the power to

the formula “Done in Convention

tax and the power to regulate inter-

by the Unanimous Consent of the

state and foreign commerce – two of

States present” on that date.

the basic reasons that had brought

the delegates to Philadelphia in the

first place.

How the Federalist

Sectional differences surfaced

during the convention’s latter

Papers Persuaded

weeks. Southern states, depen-

dent on the export of agricultural

a Nation

commodities, wanted to forbid

Philadelphia, birthplace of the Constitution, 1787.

Congress’s taxing exports, and they

Following the course set out in

wanted to protect slavery and the slave trade. In late Au-

the Virginia Plan, the Philadel-

gust, the convention agreed to a ban on taxes on exports

phia convention proposed having the people elect state

and a prohibition on interference with the slave trade

conventions to pass upon the proposed Constitution.

until the year 1808. Slavery was the unwelcome guest at

After some hesitation, the expiring Continental Con-

the convention’s table. Nowhere does the Constitution

gress forwarded the Constitution to the states for their

use the word “slave” or “slavery.” In language intended

approval. Once again, as before and during the 1787 con-

to compromise competing southern and northern views

vention, Madison took the leading role. Knowing that

on representation, the convention decided that, in appor-

ratification in Pennsylvania, Massachusetts, and Virginia

tioning representatives, to the number of “free Persons”

was critical, Madison helped orchestrate the convening

should be added three-fifths of “all other Persons” – that

of the state meetings. Several small states, Delaware

is, slaves. Some of the delegates thought slavery a blot

leading the way, acted quickly, but, as time passed, oppo-

on the nation’s moral conscience, but they concluded,

nents – known as the anti-Federalists – began to mount

reluctantly, that a stronger stand on slavery would mean

their own campaign. Chief among their complaints were

rejection of the proposed Constitution in the southern

the failure to include a bill of rights and the fear that a

states and thus the prospect of the Union’s dissolution.

“consolidated” government would swallow up the states.

How to resolve the burning issue of slavery was thus

In carrying Massachusetts, the Federalists acceded

postponed, to be settled decades later by civil war and

to recommendations for amendments which could be

reconstruction.

added after ratification was complete.

On September 8, a Committee on Style was appointed

New York seemed especially fertile ground for the

to polish the Constitution’s language and to arrange its

anti-Federalists. Madison, Hamilton, and John Jay

articles. When that committee reported, George Ma-

wrote a series of essays, published in New York news-

son, the author of Virginia’s 1776 Declaration of Rights,

papers, making the case for ratification. These essays,

argued that the federal document should also have a bill

subsequently collected and published as the famous

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Federalist Papers, stand as the classic exposition of the

Washington was sworn in as the first president of the

foundations of constitutional government in the United

United States.

States. In Virginia, Madison, joined by John Marshall

Implicit in the Federalists’ campaign for the Constitu-

and Edmund Randolph, had to fend off a sharp attack

tion was an understanding that a bill of rights – provi-

on the new Constitution draft led by Patrick Henry and

sions clarifying the rights of individuals in the new nation

George Mason. The result there was a close one, 89-79.

– would be added when the new government got under

New York, where Governor George Clinton and his allies

way. As a member of the House of Representatives in the

bitterly opposed the Constitution, ratified by an even

first Congress, Madison moved to redeem that implicit

closer vote, 30-27. In eight months, all but two states had

pledge by proposing a list of amendments to be submit-

approved the Constitution. Eventually North Carolina

ted to the states. Sifting the various proposals which

(in 1789) and even Rhode Island (in 1790) ratified. In the

had come out of the ratifying conventions, Madison

meantime, in September 1788, the Continental Congress

produced the amendments which, as ratified, became

resolved that the new Constitution should be put into

the Constitution’s first 10 amendments – what we call

effect. In January 1789, the first presidential electors

the Bill of Rights. Chief among these are protections for

met in the several states, and their unanimous choice for

free speech and press, freedom of religion, guarantees

president was George Washington. In April 1789,

of fairness in criminal trials, and the admonition that the

In this 20th-century oil painting of the Constitution’s signing, George Washington dominates the scene on the right.

Foreground: Benjamin Franklin, with Alexander Hamilton whispering in his ear.

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listing of specific rights was not to be read as precluding

dividual liberty. Limited government finds handmaidens

the existence of other rights retained by the people – a

in Madisonian concepts such as separation of powers and

reflection of “higher law” thinking, which, in the 18th

checks and balances – that is, the apportionment of real

century, implied that people had certain “natural” rights.

power and authority among the executive, the legislative,

and judicial branches of government.

An Adaptable Document

4. Partly through practical compromise, the Constitu-

tion aims at creating a central government with sufficient

The Constitution’s influence was immediately felt

energy, while preserving citizens’ ability to speak to local

beyond the borders of the United States. The

issues at the local level. Federalism in its various forms

adoption of a written constitution became intrinsically

(such as devolution) – that is, the retention of viable state

identified with aspirations to self-government. On

and local governments as well as the structure of a federal

May 3, 1791, Poland produced Europe’s first written

government – has proved increasingly attractive as a way

constitution, followed soon thereafter by France. Not

of balancing national and local needs in many nations.

surprisingly the American experience was often cited

Various reasons account for the success of the 1787

in other countries’ debates on the drafting of their own

convention. Disagreeing on some important issues, the

constitutions. In Germany, for

delegates nonetheless largely

example, the delegates who met at

shared a sense of common purpose.

Frankfurt’s Paulskirche in 1848-49

They proved able to rise above pa-

frequently invoked American ideas

rochial interests to serve the greater

in shaping their proposed constitu-

good. Leadership proved critical.

tion. No one, in France, Germany,

Madison, going into the convention

or elsewhere, supposed, of course,

with nationalist goals, was willing

that one should simply copy the

to accommodate himself to the

American model. Any constitution,

convention’s result and argue force-

to be viable, must be grounded in a

fully for the partly national, partly

country’s own history, culture, and Visitors line up to see the Constitution at the National Archives. federal arrangement.

traditions. But the American Constitution, especially as

Britain’s Prime Minister William Gladstone has been

implemented with key interpretations by the courts over

quoted as calling the Constitution “the most wonder-

more than two centuries, has undoubtedly helped frame

ful work ever struck off at a given time by the brain and

debate over fundamental laws in other places.

purpose of man.” That encomium may be a bit rococo for

What contributions did the Philadelphia delegates,

modern tastes, but there is little doubt that the Philadel-

and those who have followed after, make to

phia delegates produced one of history’s most durable and

constitutional democracy at home and abroad? Among

influential documents. It has proved, as John Marshall,

those contributions are the following:

the nation’s third chief justice, urged, adaptable to the

1

great crises of a great nation. Scholars sometimes speak of

. The Constitution, with its explicit reference to its be-

“constitutional moments” – those catalytic events which

ing ordained by “We the People,” stands for government

frame the fundamental contours of a polity. If there are

based on popular consent.

such things as “constitutional moments,” then the 1787

2

convention was surely one of them.

. The Constitution declares that it, and laws enacted

“in Pursuance thereof,” shall be the “supreme Law of

Widely acknowledged as an expert in the fields of constitutional law, comparative the Land.” Implemented by judicial review – the courts’

constitutionalism, and the Supreme Court, A. E. Dick Howard is a professor of power to invalidate laws found to be in conflict with the

law and public affairs at the University of Virginia. After graduating from law Constitution – this principle ensures that constitutional

school at the University of Virginia, he was a law clerk to Justice Hugo L. Black of guarantees protect minority rights and liberty even

the Supreme Court of the United States. Professor Howard was executive director against democratically elected majorities.

of the commission that wrote Virginia’s current constitution, and he has briefed and 3

argued cases before state and federal courts, including the Supreme Court of the

. The Constitution’s text – and the debates over its

United States. Recent works include Democracy’s Dawn and Constitution-drafting – remind us that institution and structure are

making in Eastern Europe .

fundamental to balancing society’s need for order with in-

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