The Constitution For The United States
Its Sources and Its Application A
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A Short History of
The Constitution For The United States
The Federal Convention and
The Creation of the U.S. Constitution
How It All Started . . .
After the Declaration of Independence in 1776, there were thirteen little free countries in place of the thirteen colonies. Most of the animosities and jealousies of colonial times still continued. There was a political atmosphere of the Balkan states about this aggregation of small republics.
They were flimsily held together by a document known as the Articles of Confederation. It was not a constitution; it did not make a nation; it was a sort of treaty, and was called by the men of the time "a league of friendship."
In the Continental Congress, which consisted of a single legislative chamber, each state had one vote. When a question was put, the delegates from a state would get together and agree on the vote from that state, if they could. If they could not agree the state did not vote. The affirmative vote of nine states was required to carry any measure.
The Continental Congress had no power to make laws binding individuals. Its action was upon the states as political entities, and not directly upon the citizens. But, even at that, it could not compel a state to do anything. The Congress was, in fact, not a legislative but a diplomatic body. Its members were really ambassadors, and their attitude toward Congress, and toward each other, bore all the historic distrust and caution which ambassadors are supposed to have.
Many disputes between the states arose, and on numerous occasions between 1788 and 1789 the air was explosive with threats of interstate wars.
New York, for example, considered herself much aggrieved because the farmers of New Jersey brought chickens and vegetables to New York City and sold them there. This took wealth away from New York, so the New Yorkers said, and transferred it to the foreign state of New Jersey.
Connecticut people, too, were draining the life-blood from Manhattan. They brought firewood down to the city and sold it from door to door. Then, with New York's money in their pockets, they would go back to the thrifty state of Connecticut, while New Yorkers worried through the sleepless nights wondering how it would all come out in the end. There was a thorough misunderstanding of the principles of trade; and an inordinate value was set on currency.
This narrow provincial sentiment was encouraged by the farmers of New York state. They had produce to sell, and it appeared monstrous to them that the New York state government, which ought to have protected them in their rights, allowed the citizens of other states to get the city trade. They might have got the trade themselves by making their prices lower, but that is exactly what they did not want to do.
After awhile the New York legislature acted. A tariff law was passed. Every chicken that came from New Jersey, every cabbage from Connecticut, had to go through a custom house and pay duty before being allowed to enter the state of New York.
Connecticut and New Jersey applied themselves to ways of retaliation. The Connecticut merchants decided to boycott New York. The New Jersey method was different. On Sandy Hook the state of New York had put up a lighthouse. The New Jersey legislature passed an act for taxing the little scrap of land on which this lighthouse stood, and the tax was made one hundred and fifty dollars a month.
There was another dispute between Connecticut and Pennsylvania which became so bitter that Connecticut was on the verge of declaring war. Long before the Revolution settlers from Connecticut had migrated to lands in northern Pennsylvania. Although they made their homes within the borders of that state they continued to follow the Connecticut laws; and, in fact, considered their communities as a part of the state of Connecticut. After the Revolution Connecticut claimed this Wyoming Valley, notwithstanding the fact that it did not touch the state of Connecticut at any point. In the quarrel that ensued men were killed and the dormant Pennsylvania militia bloomed into uniforms and bayonets. Connecticut was about to send an army to protect the people whom she supposed to be her citizens. Finally the matter came before a special federal court, organized under the Articles of Confederation, and the disputed territory was awarded to Pennsylvania.
Under the Confederation no state could keep a standing army. That was a function of the general government, but the revenue of Congress was so insignificant that it could never afford the luxury of soldiers, and its army was a very small, disarticulated skeleton. Congress could not levy a tax. Its authority in this direction was limited to requisitions on the states, apportioned on the basis of the real estate value of each state. The payment of the requisitions was farcical in the extent of its delinquency. In 1781 it was estimated that the continental government would require nine million dollars during the next year. It was thought that four millions might be borrowed, and the remaining five millions raised through requisitions. At the end of the year only $422,000 had been paid in the treasury. Of the requisitions levied in 1788, less than one-fifth had been received in the continental treasury by 1785.
Each state maintained its own custom house and laid duties on foreign goods according to its own notions. In 1781 Congress, worn to despair on the subject of money, asked permission of the states to collect, for continental expenses, a duty of five per cent on all imports. This seemed to be a feasible way out of the money trouble, but it came to nothing. All the states but New York agreed to this five per cent impost. New York flatly declined, so nothing could be done. In the meantime five years had been consumed in wrangling. There were times when the continental treasury did not possess a single dollar of coin, though a huge depreciated volume of continental paper currency was in circulation.
In 1786 New Jersey came out with a statement that she had been badly treated; and she declared that she did not intend to pay any more requisitions or to contribute in any manner to the general scheme of things until New York stopped collecting a tariff on New Jersey goods. Nothing could be done about it. Congress was entirely lacking in executive authority. The President was merely the presiding officer of Congress. He had no more power than the chairman of a mass meeting.
To get rid of the army, quietly and without trouble, was the chief un-public question that disturbed the ruling minds in 1788. It intruded itself sadly, like a ragged and unwelcome guest, in the victory festivals of the period. The soldiers had been treated shamefully, and there was an apprehension in Congress that these patriotic protectors of the nation might kick Congress out of doors and take charge of affairs. Washington managed to disband the army, or most of it, before it was aware of being disbanded. His method was to give furloughs to batches of men, to send them away in groups or singly, and then to send them their discharges later. The idea behind these tactics was to get rid of the soldiers without paying them, though Washington himself wanted them to be paid, as his letters prove. In behalf of Congress it must be said that they had no funds to pay the soldiers; on the other hand it must be said that they made very little effort to raise money for this purpose.
The plain fact is that the commercial element of the country which had come into authoritative prominence was tired of the whole crew of patriots. They wanted to disperse the army as soon as .possible. The country was full of business schemes and wartime fortunes were growing in arrogance.
Eighty soldiers mutinied at Lancaster, Pennsylvania, in June, 1788. They marched on Philadelphia and appeared in front of the State House where Congress was in session. Congress called on the Executive Council of Pennsylvania, meeting in the same building, for protection, but the Council was afraid to bring out the militia, as it was thought that the militia might join the mutineers. The soldiers declared that they wanted their pay and intended to take it from the treasury. They pointed their guns at the Congressional windows but did not fire them. There was a rough play-boy air about the whole proceeding. Congress sent an urgent message for help to Washington -- who was then at West Point -- and without waiting to see what the result would be, the members of Congress unheroically slipped through the back door and made their way through a golden June sunset to Princeton in New Jersey, thus abandoning the seat of government to eighty mutineers and a sergeant.
Washington was very efficient in cases of mutiny. He sent fifteen hundred troops -- best-fed and best-clothed of the army -- to Philadelphia at once. That ended the mutiny. Some of the mutineers were whipped, but nobody was shot. The fleeing Congress, wounded in the sphere of dignity, abjured Philadelphia and decided to remain at Princeton. The members were given tea and liquor by the delighted inhabitants, who assured them of protection.
Notwithstanding its grotesque adventures, the Continental Congress managed to exist. It held one large asset. The western territory -- everything from the Appalachians to the Mississippi -- had been turned over to Congress by the states. Nearly all the schemes for financing the government, and for liquidating the public debt, revolved around this western land. It was, indeed, an immense domain. It is interesting to reflect that if the government had held it to this day the entire expense of the national budget could have been met from its rentals.
The insignificance of Congress was well known in England. In negotiating the peace treaty the commissioners of the United States, representing Congress, agreed to recommend to the states that no bar or hindrance be placed against the collection of debts due to British merchants by American citizens. They also agreed to recommend that the seizure of loyalists' property be discontinued. At first, the British wanted to be paid for the effects of loyalists taken during the war. Franklin pointed out that sauce for the goose is sauce for the gander; and that, in such a case, he would expect the British government to pay for property destroyed by British troops. The argument was dropped by both sides, and the conclusion was that Congress should urge the states not to molest the loyalists any more.
Such a recommendation was made by Congress, but it had small effect. In some parts of the country, particularly in the South, loyalist property was seized right and left after the conclusion of peace. As for the collection of debts to British merchants made before the war, it was almost impossible to find either a judge or a jury who would pass favorably on these claims; and their validity drifted into the realm of legal fictions.
The British had agreed, on the signing of the treaty, to give up their forts in the Northwest Territory. Years passed, and they still held on to these posts, declaring that they would give them up when the United States had carried out its part of the compact. This attitude seems reasonable, but it did not appeal to the Americans of the 1780's.
Just at the end of the war, another blow had been given to New England commercial aspirations by a British Order in Council which closed the ports of the British West Indies to American ships. Thus, the question which began the war was lost in its successful conclusion.
But this closing of West Indian ports was a blessing in disguise. New England ships and sailors had to have some occupation, so in the 1780's we see Massachusetts ships sailing timidly to China with goods which it was thought the Chinese might want. By the year 1800 the Chinese trade was a roaring success, and Yankee merchants were cutting the ground from under the English in that faraway market. In closing the West Indian ports they effectually developed a rival for themselves in the Orient.
In the weighty troubles that grew out of the treaty Congress revealed its weakness at every turn. From the first many leading men were dissatisfied with the Confederation, and hoped eventually to replace this feeble "league of friendship" with a closely knit national government. Washington wrote to Hamilton in 1788:A few weeks later he wrote:
"It is clearly my opinion, unless Congress have powers competent to all general purposes, that the distresses we have encountered, the expense we have incurred, and the blood we have spilt, will avail us nothing."
"My wish to see the union of these states established upon liberal and permanent principles, and inclination to contribute my mite in pointing out the defects of the present constitution, are equally great. All my private letters have teemed with these sentiments, and whenever this topic has been the subject of conversation, I have endeavored to disuse and enforce them."
There was a body of intelligent opinion in favor of a monarchy. Strange to say, Washington was not considered, so far as we know, by these advocates of monarchy as a possible King, unless Hamilton had him in mind. He was, indeed, written to by an irresponsible colonel who hinted that he ought to be a King, though this man appears to have represented nobody but himself.
Washington was a republican at heart. What he wanted was a republic -- but an aristocratic one -- where the suffrage and the authority would be in the hands of the wellborn and the wealthy. The monarchy movement, if such a vague affair can be called a movement, is obscure. It became so unpopular in the end that its originators, among whom was Nathaniel Gorham and Rufus King, buried it as deeply as they could in their memories. These men felt, evidently, that no plebeian American, however distinguished he might be, was of sufficient prestige to occupy the throne. There is a strong probability that Prince Henry of Prussia, a brother of Frederick the Great, was approached on the subject before the matter was dropped. The spectacle of some gaudy European prince, coming over to occupy a throne in our land of raw liquor and trusty squirrel rifles would have been interesting.
This clumsy playing with the idea of a monarchy was hardly more than a sort of moral nostalgia. Certainly any such attempt would have failed miserably, but there was nevertheless a well-grounded effort to create a permanent nobility by an organization of former army officers called the Society of the Cincinnati, in which membership was to be hereditary. Washington was the first president of the society, though he accepted the office, I think, without being aware of the society's intention to influence public affairs. He was displeased with the early conduct of the organization, and resigned from its leadership, but not until he had persuaded the society to drop its hereditary feature. The Society of the Cincinnati exists today as a purely social, and praiseworthy organization.
The Confederation was a failure, but commerce and finance were riding on the crest of the wave. The close of the war had found the small farmers, as a class, in acute poverty. By taking advantage of the economic needs of these producers the money-holding groups in the coast cities had been able to get a tight financial grip on almost the whole of the producing class. There were counties in which nearly every acre was under mortgage at high rates of interest. Usury and profit molded themselves into large fortunes. The splendor of business began to shine.
The discontent of the common people was snapping at the heels of these primitive money kings. In every legislature there were proposals to repudiate debts, to issue floods of paper money, to impair the value of contracts. In Rhode Island the debtors captured the legislative machinery of the state, and repudiated virtually everything. They made paper money a legal tender and forced merchants and mortgage-holders to take it. Capital in that little state became so unsafe that it got out as quickly as it could. The "shameful conduct" of Rhode Island was a topic at teas and in counting-houses from New Hampshire to Georgia. It was the general opinion that something ought to be done about it. The lawbooks were thumbed, and spectacles rested on learned noses. It appeared that nothing could be done under the Articles of Confederation. Rhode Island was a free state and could act as she pleased.
This was bad enough, but even worse was coming. In 1786 an armed rebellion broke out in western Massachusetts and aroused the execration of all who loved peace and profits. The farmers of that region took up arms against the gaunt destitution of their lives. Their lands could not produce enough to pay the interest on mortgages and provide the food and raiment for human necessity. In addition to the burden of debt, taxes had gone up in Massachusetts until they were fifty dollars per capita. Compared with this, the taxes which Great Britain had attempted to impose on the colonies were nothing more than trifling small change. The rebels were mostly veterans of the Revolution. They put themselves under command of Daniel Shays, who had been an officer in the war. Organized with a sort of military discipline, they constituted in fact a formidable force. Lawyers took to their heels, and the frightened judges were ousted from the courts. Debts were to be abolished; everybody was to begin over with a clean slate. On this program of extreme simplicity the rebellion throve for a brief moment. The rebels invoked the Scriptures and pointed to the ancient Jewish law under which all lands were redistributed every seven years.
Shays' army of "desperate debtors," as these men were called, created terrific excitement, not only in New England, but everywhere else. Henry Knox, the Confederation's Secretary of War, was sent to Massachusetts at once; the militia was called out; the money-lenders of Boston fluttered in agitation.
Washington wrote to Henry Lee, Oct. 31 1786:
"You talk, my good Sir, of employing influence to appease these present tumults in Massachusetts. I know not where that influence is to be found, or, if attainable, that it would be a proper remedy for the disorders. Influence is not government. Let us have a government by which our lives, liberties, and properties will be secured, or let us know the worst at once."
Jefferson, on the contrary, does not appear to have been at all upset by the Shays episode and, in this, he stands alone among the notables. He wrote to W. S. Smith, "God forbid we should ever be twenty years without such a rebellion."
To Mrs. John Adams -- of all people -- he wrote these disturbing lines on Feb. 22, 1787:"I like a little rebellion now and then.... The spirit of resistance to government is so valuable on certain occasions that I wish it to be always kept alive. It will often be exercised when wrong, but better so than not to be exercised at all."
The Massachusetts troops eventually drove Shays and his foodless men over the deep-snow hills into New Hampshire. In the meantime Rhode Island sank a notch lower in public estimation by inviting the entire Shays outfit to come to Rhode Island and live. On a wintry day in the New Hampshire hills Shays' forlorn little army petered out. All the forces of society, represented by a swarm of bayonets, surrounded these rebels as they shivered in the snow. When they were asked by General Lincoln, in command of the Massachusetts troops, what they wanted to do, they said that they wanted to go home. He allowed them to go, and Shays' Rebellion came to an end.
There was some feeble effort to punish the ring-leaders, but nothing came of it. It seems quite clear that the money ring which ruled Massachusetts was afraid to proceed with prosecutions. After this occurrence the moneyed classes were convinced that affairs were in a sad plight. There was no protection anywhere for capital or investments. A strong, centralized government was urgently needed; the stronger the better. Now, for the first time in American history we see finance lifting its head above land as an object of attention. It had its origin in the public debt. Let us consider, for a moment, the status of the government's financial obligations in the later 1780's. First, there was the foreign debt -- that is, money borrowed abroad by the commissioners of the Continental Congress. This amounted, in 1789, to approximately ten million dollars, with arrears of interest of nearly two millions. Second: The domestic continental debt, which ran up to a principal sum of twenty-seven millions; to which must be added unpaid interest amounting to thirteen millions. Thus, the continental obligations, in all, were a little more than fifty millions of dollars. There is absolutely nothing different now except two hundred and ten years have gone by and zeros have been added.
The precise total of the combined state debts is unknown, owing to the slipshod character of the records, but it was around twenty millions of dollars... say, seventy millions for both continental and state debts. This sum of seventy millions represents only the funded obligations, represented by certificates, or bonds. Besides, there was the enormous volume of continental paper currency, which went down and down until it became entirely worthless and passed out of sight. More than two hundred million dollars of it has been issued. Very little of it was ever redeemed, on any terms.
The holders of the certificates, or interest-bearing obligations, considered them of small worth; they might be bought readily at prices ranging from one-sixth to one-twentieth of their face value. But, suppose a powerful national government could be put in place of the Confederation... a government in complete control of tariffs and indirect taxation. Let us suppose further that it could be done so quietly and so secretly that men with money would be able to buy up this whole mass of depreciated paper before its holders, principally ex-soldiers and very ordinary people, realized the import of the new authority. Then the next step would be a large fiscal operation by which the new and strong government would assume the entire volume of obligations, both state and continental.
In a short time these depreciated certificates would rise to par. Golden dream! A dream it was... but, as the virile, go-getting magazines tell us, there are men who make their dreams come true. The men behind the Constitution made theirs come true, to their great profit.
The first difficulty was how to begin. The Confederation had to be abolished. If a public campaign were started to do away with the government and put a new one in its place the substantial citizens of the country would have the whole pack of the debt-ridden and improvident clawing at them; and every little landless theorizer would put forth his plan. Perhaps there were more Shays than one in the country. Some of them might support their fatuous democratic ideas with armies. Besides, a general public knowledge of what they intended to do would vitiate the scheme from the outset. Even the most ignorant holder of certificates would hear of it eventually and keep his government paper, or sell it only at a high price. Into this circle of ideas there came the shrewd notion to call a conference of the states at Annapolis to consider commercial regulations, to devise a uniform system of duties, and so on. After commercial matters had been discussed, then other important matters might be taken up... or the convention might simply drift into a discussion of the general welfare. In this way it might be possible to devise a stronger government and one financially able to assume the debts -- under the guise of a commercial conference.
The Annapolis convention, which met in September, 1786, did nothing of any consequence. Only five states were represented. Alexander Hamilton was there... five states and Hamilton, personal secretary to Washington during the Revolution and who became our first Secretary of the Treasury. However, there was a sufficient interchange of views to give the delegates a sense of confidence, so before adjourning they passed a resolution in which they asked Congress to call a convention at Philadelphia, the following May, "to devise such further provisions as shall appear to them necessary to render the constitution of the federal government adequate to the exigencies of the Union, and to report to Congress such an act, as, when agreed to by them, and confirmed by the legislature of every state, would effectually provide for the same." This is how the Federal Convention, which created the Constitution for the United States, came into being.
There was something about the Federal Convention that makes one think of a meeting of the board of directors of a large and secretive corporation. Fifty-five sleek, well-to-do gentlemen sitting carelessly in a closed room. Gentlemen who know one another very well. Gentlemen of good manners who apologize for reading their letters in public. Esoteric jokes pass around with snuff-boxes of engraved silver. Mild and polite attendants. Tip-toeing doorkeepers, and keys that crunch loudly in their locks. In the chair of authority sits the impressive Washington... grey inside, but majestic outside. Boredom flickers in his eyes; he is grave, serious and bored. But he has the consciousness of doing his duty, the spiritual uplift of meeting expectations. Posterity has its eye on that assembly, and he knows it. No matter how others may act, posterity shall never say - with truth -- that George Washington failed in his part.
At Washington's side sits little Secretary Jackson, fumbling with his bewildered notes. He left them to posterity, too; but posterity has never been able to make head or tail of them. The delegates pledged themselves to secrecy, like a jury in a murder trial, and for four months they met behind locked doors with hardly a whisper of their proceedings reaching the open air. But some of the delegates took notes for their own use. Among the note-takers was James Madison. It is to him that we owe the most complete report of what occurred. During his lifetime he kept his notes in inviolable secrecy. They were published in 1840... fifty-three years after the Convention.
The general impression among the people of the country was that the Federal convention's powers were limited to a revision of the Articles of Confederation. This impression did not extend to the men in the Convention, nor to the well-informed elsewhere.
Dr. Charles A. Beard, outspoken and scholarly historian, has given us in his Economic Interpretation of the Constitution of the United States, a complete picture of the economic affiliations of each member of the Convention. Dr. Beard's book is based on first-hand research; it is ably documented and is streaming with footnotes and citations; one marvels at the patience of its author with fly-blown records. He has shown that at least five-sixths of the members of the Convention were holders of public securities or in some other economic sense were directly and personally interested in commercial affairs which would benefit by their labors. His data also prove that most of the members were lawyers by profession and that "not one member represented in his immediate personal economic interests the small farming or mechanic classes."
Among the members was Robert Morris, friend of Washington, and by far the most important financial figure of the nation. At that time the position of Robert Morris was something like the position of the elder J. P. Morgan one hundred and twenty-five years later. He was the acknowledged arbiter of American business.
Gouverneur Morris -- of the same name but not a relative of Robert Morris -- was also a member. This is the Morris, it will be remembered, who complained at the beginning of the Revolution that the people "begin to think and to reason." Slaveholders and Southern aristocrats were in evidence in numbers. Among them were the two Pinckneys and John Rutledge, of South Carolina. George Mason, Washington's former political mentor, sat with the Virginia delegates. He and Washington were not so friendly as in the old days. Mason was a states' rights man, jealous of crystallized authority and looking with a suspicious eye on all kinds of shrewd manipulation.
Land speculation and money-lending were among the economic interests of at least thirty-eight of the delegates, including Washington, Franklin, Gerry, Gorham and Wilson. Of the fifty-five delegates Dr. Beard says that the names of forty appear on the records of the Treasury Department as holders of public certificates.
The Convention was singularly lacking in doctrinaires, in idealists. Jefferson, the great idealist and humanitarian of the epoch, was in France as the official representative of the government. It was also lacking in a spirit of inquiry. One would naturally think that a body of men engaged in a constructive work of such immense possibilities would summon before them, day after day, citizens of all degrees and from all sections, in an effort to find out what was wrong and what was required to set it right. But they did not do this; they never summoned anybody. To have done so might have revealed the purport of the Convention, and they could not risk that contingency. The Constitution was planned like a coup d'etat; and that was its effect, in truth.
As soon as the Convention was organized Edmund Randolph rose and proposed an entirely new plan of government. It had the backing of the Virginia delegates -- including Washington, presumably -- and was supposed to have been the work of James Madison.
According to the Virginia plan the national legislature was to consist of two houses. The members of the lower house were to be chosen directly by male citizens entitled to vote. The members of the Senate were to be elected by the members of the lower house from a list of persons suggested by the legislatures of the various states. In both the upper and lower houses the votes were to be by individuals, and not by states.
The number of representatives from each state was to be in proportion to its wealth, or to its free inhabitants. An interesting feature was the power of Congress to veto state laws. This would have reduced the state legislatures to rather absurd nonentities.
There was to be a national executive, chosen by Congress for a short term, and ineligible for a second term. The Supreme Court, according to the Virginia plan, was to be chosen by Congress, and was to hold office during good behavior.
The Virginia plan was, in reality, the basis of the Constitution as it was finally shaped, though it was twisted and turned about so completely in the four months' discussion that it was all but forgotten.
The first dissension occurred over the relative representation of the states. Small states like Delaware and New Jersey saw themselves completely overshadowed and outvoted by the large delegations from the more populous states, if representation on the basis of population or wealth were conceded. Rhode Island would have probably taken this side, too, if that little state had been represented at the Convention. Rhode Island was invited, but declined to send delegates.
A compromise was reached eventually by giving two Senators to each state, irrespective of size. Alexander Hamilton thought the Virginia plan too liberal. On June 18th, he made a long and interesting speech, in which he set forth his theory of government. His remarks are too extensive for quotation in full, but I shall give a few pertinent extracts:
"My situation is disagreeable, but it would be criminal not to come forward on a question of such magnitude . . . I am at a loss to know what must be done -- I despair that a republican form of government can remove the difficulties . . . All communities divide themselves into the few and the many. The first are the rich and well-born, the other the mass of the people. The voice of the people has been said to be the voice of God; and however generally this maxim has been quoted and believed, it is not true in fact . . . It is admitted that you cannot have a good executive upon a democratic plan. See the excellency of the British executive -- he is placed above temptation -- he can have no distinct interests from the public welfare . . ."
He went on to say that he was in favor of having an Executive, or President, elected for life on good behavior. The lower house to be elected for three years by the voters of the states; and the Senate to be elected by electors who should be chosen for that purpose by the people. The Senators to remain in office during life. But all that is mere introduction. Here is the milk in this coconut:
"The Executive to have the power of negativing all laws -- to make war or peace with the advice of the Senate -- to make treaties with their advice, but to have the sole direction of all military operations, and to send ambassadors and appoint all military officers, and to pardon all offenders, treason excepted, unless by advice of the Senate. On his death or removal, the President of the Senate to officiate with the same powers, until another is elected. Supreme judicial officers to be appointed by the Executive and the Senate. The Legislature to appoint courts in each State, so as to make the State governments unnecessary to it.
All State laws to be absolutely void which contravene the general laws. An officer to be appointed in each State to have a negative on all State laws."
If we look into these ideas we observe that what he proposes is a monarchy with an elected king. The Executive would have an absolute veto power over the acts of Congress; and this veto would extend even to the state legislatures, as he suggests "an officer to be appointed in each state to have a negative on all state laws." A little too much, this was, for the gentlemen of the Convention. Hamilton never understood the American people, but most of the members of the Convention "knew them very well."
However attractive Hamilton's plan may have been to some of the delegates, all realized that it could never hope for adoption in its raw form. Something much more evasive and soft-spoken would have to be framed. Hamilton's plan was received so coldly that his feelings were hurt, and he left the Convention and went home, where he stayed until the Convention had nearly finished its work.
Washington felt Hamilton's absence, and wanted him to return. On July 10th Washington wrote to him:
"When I refer you to the state of the counsels which prevailed at the period you left this city, and add that they are now, if possible, in a worse train than ever, you will find but little ground on which the hope of a good establishment can be formed. In a word, I almost despair of seeing a favorable issue to the proceedings of our convention, and do therefore repent having had any agency in the business."
Very characteristic of Washington. He was the most pessimistic great man in all history. Does not this letter remind you of his complaining epistles written during the Revolution, when he wishes that he had never accepted his position, and how much happier he would be as a private soldier? The letter files of America today are full of communications of this type, written by millionaires and heads of large enterprises. No accomplishment is quite good enough to satisfy them, the country is going to the dogs, profits are falling, salaries are high, labor is getting out of bounds, affairs are beginning to look panicky . . . The true executive mind is not a mind of optimism. Its tendency is to undervalue, to depreciate. Existing on the achievements of others, on the constructive work of subordinates, it spurs those around it to action by taking a gloomy view of their functions and their future.
On August 7th the Convention considered the qualifications for suffrage under the new Constitution. The wisdom of Mr. Gouverneur Morris spread around the room. He said, "The time is not distant when this Country will abound with mechanics and manufacturers [he means factory hands] who will receive their bread from their employers. Will such men be the secure and faithful Guardians of liberty?"
He concluded that they would not. Dr. Franklin thought that, "It is of great consequence that we should not depress the virtue and public spirit of our common people, of which they displayed a great deal during the war." There was a good deal of talk about "the dangers of the leveling spirit." Most of the members were of the opinion that there should be a property qualification, but the subject was such a delicate one that they decided to leave the matter to the states.
Charles Pinckney thought there ought to be a property qualification for members of the national legislature, for the president and the judges -- enough property, he said, to make them "independent and respectable." The trouble with this theory is that experience has shown that wealth does not necessarily make a man either independent or respectable. Mr. Pinckney's assertion inspired the aged Franklin to struggle to his feet and say that some of the worst rogues he ever knew were the richest rogues.
There was a bitter North-and-South contest over the question as to whether slaves should be counted in apportioning the number of representatives to the states. This discussion eventually broadened out into a general argument on the slavery question. All the states, except South Carolina, wanted to put "an end to the importation of slaves." If the slave trade was stopped the South Carolina delegates declared that their state would not enter the Union.
That moment was the opportunity of Washington's life, and he missed it. He had declared on many occasions that he was opposed to slavery -- and his influence was incalculably great. What would have happened if he had turned over the chair to some one else for a moment and had said from the floor of the Convention that as far as he was concerned South Carolina could stay out of the Union if she wanted to continue in the slave trade?
Certainly the Union could have existed without South Carolina... and it is equally certain that South Carolina could not have existed long without the Union. Washington said nothing; he did not express an opinion at the Convention but once, and that was on a trifling question of no weight.
What would Jefferson have done in Washington's place? We do not know, we can only guess... and guessing is not the province of the historian. Jefferson wrote in opposition to the slave trade before the Revolution. In writing the Declaration of Independence he inserted a clause against the slave trade which was stricken out by Congress. In 1784 he succeeded in putting the Northwest Ordinance through Congress in the face of bitter opposition. The Northwest Ordinance prohibited slavery forever in the territory north of the Ohio. Whether this would have been his attitude in the Federal Convention -- had he been there -- is a question without a solution.
In the end it was decided that, in determining the population basis for representation, a slave should be counted as three-fifths of a person. The New England delegates were not satisfied. They maintained that, if such a provision was adopted, they wanted every horse in New England to be counted as three-fifths of a person. Their argument seems reasonable, for slaves had no more to say about the government than horses.
In the matter of slave importation a compromise was made to the effect that slave-catching should continue until 1808. This satisfied South Carolina. The Constitution evolved a series of compromises; everybody was willing to concede something, provided that the main object of a strong government -- and one able to cash in the depreciated paper -- should be the result.
The Constitution is a remarkably able production. The intention of its framers was to create an economic document which would protect established and acquired rights; and this intention has been carried out successfully under the smooth flow of phrases. It is highly self-protective, and is skillfully designed to break up and dissipate radical attacks on any of its fundamental axioms, while at the same time it permits a large freedom of movement to those who are entrenched behind it. It is full of curious subtleties which are revealed only after an earnest study. The keystone of the conservatism that it embodies is in the judiciary and the Senate. The judiciary -- the Supreme Court -- possesses a veto power over all acts of Congress which do not fall within the Constitution's narrow limits; and the Supreme Court is a body which maintains an unchanging existence during the lives of its members. But, even before the Supreme Court is encountered, a radical measure must run the gauntlet of the Senate... and the Senate is elected for six years. In the Senate the smaller states have an enormous preponderance, owing to the constitutional principle of equal representation. At the present time (1996) the Senators from twenty-six small states, having an aggregate population of less than one-fifth of the total number of inhabitants of the country, can negative any proposition, although it may have passed the House and represents the desire of four-fifths of the nation's citizens.
The Senate is always subject, more or less, to indirect manipulation through the ease with which strong financial interests may control the small states. Gladstone, who represented commercial interests all his life, said that the American Constitution is "the most wonderful work ever struck off at a given time by the brain and purpose of man."
Much of the credit for this wonderful work must be given to the brain and purpose of Gouverneur Morris. He was a member of the Committee for Style and Arrangement, which had charge of the actual drafting of the Constitution. Channing makes an interesting remark about the part played by Morris.
The actual phrasing seems to have been left to Morris; but he sometimes followed suggestions made by persons who were not members of the committee. The draft of the Constitution when it reappeared in the Convention was widely different in many respects from the project that had been committed to it. By changes in phraseology and arrangement and by the introduction here and there of phrases like "impair the obligation of contracts" the friends of strong government accomplished a large part of the purpose that had brought them to Philadelphia. Washington's part in shaping the Constitution was negligible. He was the presiding officer of the Convention, and, as such, he refrained from taking part in the debates. Lodge and other adulators hazard the opinion that he must have exercised great influence through private conversation, and unofficially, but this is pure assumption. The records of the time do not mention any such conversations. Washington's Diaries contain no comment on the work of the Convention, but are given up chiefly to memoranda as to teas and dinners. On one occasion he went on a fishing trip with Gouverneur Morris to Valley Forge. While Morris was fishing, Washington rode around the old Valley Forge encampment, then silent and haunted by memories. What his emotions were -- if any -- he does not say.
There was considerable difficulty in getting some of the states to adopt the Constitution. Some of the legislatures were unruly, and its adoption wavered in the balance. In this crisis Hamilton, Madison and Jay came forward with a series of masterly essays which were published under the title of The Federalist.
We have seen what Hamilton's ideas of government were, but now he was all for the Constitution, though he said in private letters that the plan was as remote from his own ideas as anything could be.
When the question of adoption was in doubt the opponents of the Constitution circulated a report that Washington was not in favor of it. Upon hearing this rumor he came out with a statement -- expressed in various letters -- that he was for the Constitution, and urged its adoption.
One of the most significant facts about Washington's long and distinguished career is that he never formulated any coherent theory of government. Hamilton and Jefferson both worked out distinctly articulated systems of politics. Each stood for a definite, cogent set of ideas of social structure. But there is nothing in the body of American political thought that we can call Washingtonism.
At first impression his political character appears utterly nebulous. His writings are a vast Milky Way of hazy thoughts. We turn their thousands of pages, marking sentences and paragraphs here and there, hoping to assemble them and build up a substantial theory of the common weal. Can it be that this huge aggregation of words has no impressive import? We are about to think so; however, when we study them in detail we find that his observations are sensible, sane and practical. Yet, somehow, they do not coalesce; they lack a fundamental idea, a spirit that binds them all together. That was our first conclusion, but then we were thinking in terms of the great philosophies... of Rousseau, of Locke, of Adam Smith, of Voltaire, of Ricardo. Later, one day, we thought of the mind of the large city banker, and we saw Washington's political personality in a flash of revelation. Washington thought as almost any able banker who might find himself in the eighteenth century would think. The banker stands for stability, and Washington was for that. The banker stands for law and order, for land and mortgages, for substantial assets -- and Washington believed in them, too. The banker wants the nation to be prosperous; by that he means that he wants poor people to have plenty of work and wealthy people to have plenty of profits. That was Washington's ideal.
The banker does not want the under-dog to come on top; not that he hates the under-dog, but he is convinced that people who have not accumulated money lack the brains to carry on large affairs, and he is afraid they will disturb values. The banker is not without human sympathy; but he is for property first, and humanity second. He is a well-wisher of mankind, though in a struggle between men and property, he sympathizes with property. In this we see Washington's mind. A coherent political philosophy is not an impelling necessity to this type of intellect.
Taken from George Washington, the Image and the Man, by W.E. Woodward,
Pennsylvania State House - Independence Hall
And so it began. . .
May 25, 1787, Freshly spread dirt covered the cobblestone street in front of the Pennsylvania State House, protecting the men inside from the sound of passing carriages and carts. Guards stood at the entrances to ensure that the curious were kept at a distance. Robert Morris of Pennsylvania, the "financier" of the Revolution, opened the proceedings with a nomination--Gen. George Washington for the presidency of the Constitutional Convention. The vote was unanimous. With characteristic ceremonial modesty, the general expressed his embarrassment at his lack of qualifications to preside over such an august body and apologized for any errors into which he might fall in the course of its deliberations.
To many of those assembled, especially to the small, boyish-looking, 36-year-old delegate from Virginia, James Madison, who had arrived May 3rd, one of the first delegates on the scene, the general's mere presence boded well for the convention, for the illustrious Washington gave to the gathering an air of importance and legitimacy. But his decision to attend the convention had been an agonizing one. The Father of the Country had almost remained at home.
Suffering from rheumatism, despondent over the loss of a brother, absorbed in the management of Mount Vernon, and doubting that the convention would accomplish very much or that many men of stature would attend, Washington delayed accepting the invitation to attend for several months. Torn between the hazards of lending his reputation to a gathering perhaps doomed to failure and the chance that the public would view his reluctance to attend with a critical eye, the general finally agreed to make the trip. James Madison was pleased.
The determined Madison had for several years insatiably studied history and political theory searching for a solution to the political and economic dilemmas he saw plaguing America. The Virginian's labors convinced him of the futility and weakness of confederacies of independent states. America's own government under the Articles of Confederation, Madison was convinced, had to be replaced.
In force since 1781, established as a "league of friendship" and a constitution for the 13 sovereign and independent states after the Revolution, the articles seemed to Madison woefully inadequate. With the states retaining considerable power, the central government, he believed, had insufficient power to regulate commerce. It could not tax and was generally impotent in setting commercial policy It could not effectively support a war effort. It had little power to settle quarrels between states. Saddled with this weak government, the states were on the brink of economic disaster. The evidence was overwhelming. Congress was attempting to function with a depleted treasury; paper money was flooding the country, creating extraordinary inflation--a pound of tea in some areas could be purchased for a tidy $100; and the depressed condition of business was taking its toll on many small farmers. Some of them were being thrown in jail for debt, and numerous farms were being confiscated and sold for taxes.
In 1786 some of the farmers had fought back. Led by Daniel Shays, a former captain in the Continental army, a group of armed men, sporting evergreen twigs in their hats, prevented the circuit court from sitting at Northampton, MA, and threatened to seize muskets stored in the arsenal at Springfield. Although the insurrection was put down by state troops, the incident confirmed the fears of many wealthy men that anarchy was just around the corner. Embellished day after day in the press, the uprising made upper-class Americans shudder as they imagined hordes of vicious outlaws descending upon innocent citizens. From his idyllic Mount Vernon setting, Washington wrote to Madison:
"Wisdom and good examples are necessary at this time to rescue the political machine from the impending storm."
Madison thought he had the answer. He wanted a strong central government to provide order and stability. "Let it be tried then," he wrote, "whether any middle ground can be taken which will at once support a due supremacy of the national authority," while maintaining state power only when "subordinately useful." The resolute Virginian looked to the Constitutional Convention to forge a new government in this mold.
The convention had its specific origins in a proposal offered by Madison and John Tyler in the Virginia assembly that the Continental Congress be given power to regulate commerce throughout the Confederation. Through their efforts in the assembly a plan was devised inviting the several states to attend a convention at Annapolis, MD, in September 1786 to discuss commercial problems. Madison and a young lawyer from New York named Alexander Hamilton issued a report on the meeting in Annapolis, calling upon Congress to summon delegates of all of the states to meet for the purpose of revising the Articles of Confederation. Although the report was widely viewed as a usurpation of congressional authority, the Congress did issue a formal call to the states for a convention. To Madison it represented the supreme chance to reverse the country's trend. And as the delegations gathered in Philadelphia, its importance was not lost to others. The squire of Gunston Hall, George Mason, wrote to his son, "The Eyes of the United States are turned upon this Assembly and their Expectations raised to a very anxious Degree. May God Grant that we may be able to gratify them, by establishing a wise and just Government."
Seventy-four delegates were appointed to the convention, of which 55 actually attended sessions. Rhode Island was the only state that refused to send delegates. Dominated by men wedded to paper currency, low taxes, and popular government, Rhode Island's leaders refused to participate in what they saw as a conspiracy to overthrow the established government. Other Americans also had their suspicions.
Patrick Henry, of the flowing red Glasgow cloak and the magnetic oratory, refused to attend, declaring he "smelt a rat." He suspected, correctly, that Madison had in mind the creation of a powerful central government and the subversion of the authority of the state legislatures. Henry along with many other political leaders, believed that the state governments offered the chief protection for personal liberties. He was determined not to lend a hand to any proceeding that seemed to pose a threat to that protection.
With Henry absent, with such towering figures as Jefferson and Adams abroad on foreign missions, and with John Jay in New York at the Foreign Office, the convention was without some of the country's major political leaders. It was, nevertheless, an impressive assemblage. In addition to Madison and Washington, there were Benjamin Franklin of Pennsylvania -- crippled by gout, the 81-year-old Franklin was a man of many dimensions printer, storekeeper, publisher, scientist, public official, philosopher, diplomat, and ladies' man; James Wilson of Pennsylvania -- a distinguished lawyer with a penchant for ill-advised land-jobbing schemes, which would force him late in life to flee from state to state avoiding prosecution for debt, the Scotsman brought a profound mind steeped in constitutional theory and law; Alexander Hamilton of New York -- a brilliant, ambitious former aide-de-camp and secretary to Washington during the Revolution who had, after his marriage into the Schuyler family of New York, become a powerful political figure; George Mason of Virginia -- the author of the Virginia Bill of Rights whom Jefferson later called "the Cato of his country without the avarice of the Roman"; John Dickinson of Delaware -- the quiet, reserved author of the "Farmers' Letters" and chairman of the congressional committee that framed the articles; and Gouverneur Morris of Pennsylvania -- well versed in French literature and language, with a flair and bravado to match his keen intellect, who had helped draft the New York State Constitution and had worked with Robert Morris in the Finance Office.
There were others who played major roles - Oliver Ellsworth of Connecticut; Edmund Randolph of Virginia; William Paterson of New Jersey; John Rutledge of South Carolina; Elbridge Gerry of Massachusetts; Roger Sherman of Connecticut; Luther Martin of Maryland; and the Pinckneys, Charles and Charles Cotesworth, of South Carolina. Franklin was the oldest member and Jonathan Dayton, the 27-year-old delegate from New Jersey was the youngest. The average age was 42. Most of the delegates had studied law, had served in colonial or state legislatures, or had been in the Congress. Well versed in philosophical theories of government advanced by such philosophers as James Harrington, John Locke, and Montesquieu, profiting from experience gained in state politics, the delegates composed an exceptional body, one that left a remarkably learned record of debate.
Fortunately we have a relatively complete record of the proceedings, thanks to the indefatigable James Madison. Day after day, the Virginian sat in front of the presiding officer, compiling notes of the debates, not missing a single day or a single major speech. He later remarked that his self-confinement in the hall, which was often oppressively hot in the Philadelphia summer, almost killed him.
The sessions of the convention were held in secret--no reporters or visitors were permitted. Although many of the naturally loquacious members were prodded in the pubs and on the streets, most remained surprisingly discreet. To those suspicious of the convention, the curtain of secrecy only served to confirm their anxieties. Luther Martin of Maryland later charged that the conspiracy in Philadelphia needed a quiet breeding ground. Thomas Jefferson wrote John Adams from Paris, "I am sorry they began their deliberations by so abominable a precedent as that of tying up the tongues of their members."
On Tuesday morning, May 29, Edmund Randolph, the tall, 34-year- old governor of Virginia, opened the debate with a long speech decrying the evils that had befallen the country under the Articles of Confederation and stressing the need for creating a strong national government. Randolph then outlined a broad plan that he and his Virginia compatriots had, through long sessions at the Indian Queen tavern, put together in the days preceding the convention. James Madison had such a plan on his mind for years. The proposed government had three branches--legislative, executive, and judicial--each branch structured to check the other. Highly centralized, the government would have veto power over laws enacted by state legislatures. The plan, Randolph confessed, "meant a strong consolidated union in which the idea of states should be nearly annihilated." This was, indeed, the rat so offensive to Patrick Henry.
The introduction of the so-called Virginia Plan at the beginning of the convention was a tactical coup. The Virginians had forced the debate into their own frame of reference and in their own terms.
For 10 days the members of the convention discussed the sweeping and, to many delegates, startling Virginia resolutions. The critical issue, described succinctly by Gouverneur Morris on May 30, was the distinction between a federation and a national government, the "former being a mere compact resting on the good faith of the parties; the latter having a compleat and compulsive operation." Morris favored the latter, a "supreme power" capable of exercising necessary authority, not merely a shadow government, fragmented and hopelessly ineffective.
This nationalist position revolted many delegates who cringed at the vision of a central government swallowing state sovereignty. On June 13 delegates from smaller states rallied around proposals offered by New Jersey delegate William Paterson. Railing against efforts to throw the states into "hotchpot," Paterson proposed a "union of the States merely federal." The "New Jersey resolutions" called only for a revision of the articles to enable the Congress more easily to raise revenues and regulate commerce. It also provided that acts of Congress and ratified treaties be "the supreme law of the States."
For 3 days the convention debated Paterson's plan, finally voting for rejection. With the defeat of the New Jersey resolutions, the convention was moving toward creation of a new government, much to the dismay of many small-state delegates. The nationalists, led by Madison, appeared to have the proceedings in their grip. In addition, they were able to persuade the members that any new constitution should be ratified through conventions of the people and not by the Congress and the state legislatures -- another tactical coup. Madison and his allies believed that the constitution they had in mind would likely be scuttled in the legislatures, where many state political leaders stood to lose power. The nationalists wanted to bring the issue before "the people," where ratification was more likely.
On June 18 Alexander Hamilton presented his own ideal plan of government. Erudite and polished, the speech, nevertheless, failed to win a following. It went too far. Calling the British government "the best in the world," Hamilton proposed a model strikingly similar an executive to serve during good behavior or life with veto power over all laws; a senate with members serving during good behavior; the legislature to have power to pass "all laws whatsoever." Hamilton later wrote to Washington that the people were now willing to accept "something not very remote from that which they have lately quitted." What the people had "lately quitted," of course, was monarchy.
Some members of the convention fully expected the country to turn in this direction. Hugh Williamson of North Carolina, a wealthy physician, declared that it was "pretty certain . . . that we should at some time or other have a king." Newspaper accounts appeared in the summer of 1787 alleging that a plot was under way to invite the second son of George III, Frederick, Duke of York, the secular bishop of Osnaburgh in Prussia, to become "king of the United States."
Strongly militating against any serious attempt to establish monarchy was the enmity so prevalent in the revolutionary period toward royalty and the privileged classes. Some state constitutions had even prohibited titles of nobility. In the same year as the Philadelphia convention, Royall Tyler, a revolutionary war veteran, in his play The Contract, gave his own jaundiced view of the upper classes:
Exult each patriot heart! this night is shewn
A piece, which we may fairly call our own;
Where the proud titles of "My Lord!" "Your Grace!"
To humble Mr. and plain Sir give place.
Most delegates were well aware that there were too many Royall Tylers in the country, with too many memories of British rule and too many ties to a recent bloody war, to accept a king. As the debate moved into the specifics of the new government, Alexander Hamilton and others of his persuasion would have to accept something less.
By the end of June, debate between the large and small states over the issue of representation in the first chamber of the legislature was becoming increasingly acrimonious. Delegates from Virginia and other large states demanded that voting in Congress be according to population; representatives of smaller states insisted upon the equality they had enjoyed under the articles. With the oratory degenerating into threats and accusations, Benjamin Franklin appealed for daily prayers. Dressed in his customary gray homespun, the aged philosopher pleaded that "the Father of lights . . . illuminate our understandings." Franklin's appeal for prayers was never fulfilled; the convention, as Hugh Williamson noted, had no funds to pay a preacher.
On June 29 the delegates from the small states lost the first battle. The convention approved a resolution establishing population as the basis for representation in the House of Representatives, thus favoring the larger states. On a subsequent small-state proposal that the states have equal representation in the Senate, the vote resulted in a tie. With large-state delegates unwilling to compromise on this issue, one member thought that the convention "was on the verge of dissolution, scarce held together by the strength of an hair."
By July 10 George Washington was so frustrated over the deadlock that he bemoaned "having had any agency" in the proceedings and called the opponents of a strong central government "narrow minded politicians . . . under the influence of local views." Luther Martin of Maryland, perhaps one whom Washington saw as "narrow minded," thought otherwise. A tiger in debate, not content merely to parry an opponent's argument but determined to bludgeon it into eternal rest, Martin had become perhaps the small states' most effective, if irascible, orator. The Marylander leaped eagerly into the battle on the representation issue declaring, "The States have a right to an equality of representation. This is secured to us by our present articles of confederation; we are in possession of this privilege."
Also crowding into this complicated and divisive discussion over representation was the North-South division over the method by which slaves were to be counted for purposes of taxation and representation. On July 12 Oliver Ellsworth proposed that representation for the lower house be based on the number of free persons and three-fifths of "all other persons," a euphemism for slaves. In the following week the members finally compromised, agreeing that direct taxation be according to representation and that the representation of the lower house be based on the white inhabitants and three-fifths of the "other people." With this compromise and with the growing realization that such compromise was necessary to avoid a complete breakdown of the Convention, the members then approved Senate equality. Roger Sherman had remarked that it was the wish of the delegates "that some general government should be established." With the crisis over representation now settled, it began to look again as if this wish might be fulfilled.
For the next few days the air in the City of Brotherly Love, although insufferably muggy and swarming with blue-bottle flies, had the clean scent of conciliation. In this period of welcome calm, the members decided to appoint a Committee of Detail to draw up a draft constitution. The convention would now at last have something on paper. As Nathaniel Gorham of Massachusetts, John Rutledge, Edmund Randolph, James Wilson, and Oliver Ellsworth went to work, the other delegates voted themselves a much needed 10-day vacation.
During the adjournment, Gouverneur Morris and George Washington rode out along a creek that ran through land that had been part of the Valley Forge encampment 10 years earlier. While Morris cast for trout, Washington pensively looked over the now lush ground where his freezing troops had suffered, at a time when it had seemed as if the American Revolution had reached its end. The country had come a long way.
On Monday August 6, 1787, the convention accepted the first draft of the Constitution. Here was the article-by-article model from which the final document would result some 5 weeks later. As the members began to consider the various sections, the willingness to compromise of the previous days quickly evaporated. The most serious controversy erupted over the question of regulation of commerce. The southern states, exporters of raw materials, rice, indigo, and tobacco, were fearful that a New England-dominated Congress might, through export taxes, severely damage the South's economic life. C. C. Pinckney declared that if Congress had the power to regulate trade, the southern states would be "nothing more than overseers for the Northern States."
On August 21 the debate over the issue of commerce became very closely linked to another explosive issue--slavery. When Martin of Maryland proposed a tax on slave importation, the convention was thrust into a strident discussion of the institution of slavery and its moral and economic relationship to the new government. Rutledge of South Carolina, asserting that slavery had nothing at all to do with morality, declared, "Interest alone is the governing principle with nations." Sherman of Connecticut was for dropping the tender issue altogether before it jeopardized the convention. Mason of Virginia expressed concern over unlimited importation of slaves but later indicated that he also favored federal protection of slave property already held. This nagging issue of possible federal intervention in slave traffic, which Sherman and others feared could irrevocably split northern and southern delegates, was settled by, in Mason's words, "a bargain." Mason later wrote that delegates from South Carolina and Georgia, who most feared federal meddling in the slave trade, made a deal with delegates from the New England states. In exchange for the New Englanders' support for continuing slave importation for 20 years, the southerners accepted a clause that required only a simple majority vote on navigation laws, a crippling blow to southern economic interests.
The bargain was also a crippling blow to those working to abolish slavery. Congregationalist minister and abolitionist Samuel Hopkins of Connecticut charged that the convention had sold out:
"How does it appear . . . that these States, who have been fighting for liberty and consider themselves as the highest and most noble example of zeal for it, cannot agree in any political Constitution, unless it indulge and authorize them to enslave their fellow men . . . Ah! these unclean spirits, like frogs, they, like the Furies of the poets are spreading discord, and exciting men to contention and war." Hopkins considered the Constitution a document fit for the flames.
On August 31 a weary George Mason, who had 3 months earlier written so expectantly to his son about the "great Business now before us," bitterly exclaimed that he "would sooner chop off his right hand than put it to the Constitution as it now stands." Mason despaired that the convention was rushing to saddle the country with an ill-advised, potentially ruinous central authority. He was concerned that a "bill of rights," ensuring individual liberties, had not been made part of the Constitution. Mason called for a new convention to reconsider the whole question of the formation of a new government. Although Mason's motion was overwhelmingly voted down, opponents of the Constitution did not abandon the idea of a new convention. It was futilely suggested again and again for over 2 years.
One of the last major unresolved problems was the method of electing the executive. A number of proposals, including direct election by the people, by state legislatures, by state governors, and by the national legislature, were considered. The result was the electoral college, a master stroke of compromise, quaint and curious but politically expedient. The large states got proportional strength in the number of delegates, the state legislatures got the right of selecting delegates, and the House the right to choose the president in the event no candidate received a majority of electoral votes. Mason later predicted that the House would probably choose the president 19 times out of 20.
In the early days of September, with the exhausted delegates anxious to return home, compromise came easily. On September 8 the convention was ready to turn the Constitution over to a Committee of Style and Arrangement. Gouverneur Morris was the chief architect. Years later he wrote to Timothy Pickering: "That Instrument was written by the Fingers which wrote this letter." The Constitution was presented to the convention on September 12, and the delegates methodically began to consider each section. Although close votes followed on several articles, it was clear that the grueling work of the convention in the historic summer of 1787 was reaching its end.
Before the final vote on the Constitution on September 15, Edmund Randolph proposed that amendments be made by the state conventions and then turned over to another general convention for consideration. He was joined by George Mason and Elbridge Gerry. The three lonely allies were soundly rebuffed. Late in the afternoon the roll of the states was called on the Constitution, and from every delegation the word was "Aye."
Printers John Dunlap and David Claypoole had been hired at the beginning of the work of the convention, and had printed successive drafts for study and correction. They, and the delegates, were sworn to secrecy while the work was in progress, and that secrecy was never breached. Finally, on September 15, 1787, the final printed draft was reviewed, and the Convention finished its work.
George Washington ordered 500 copies printed and distributed. Then he ordered that the Constitution should be engrossed, rendered into handwriting as a final legal formality.
On September 17 the members met for the last time, and the engrossed copy, prepared by Jacob Sallus, assistant clerk of the Pennsylvania Assembly, was read in Convention.
The venerable Franklin had written a speech that was delivered by his colleague James Wilson. Appealing for unity behind the Constitution, Franklin declared, "I think it will astonish our enemies, who are waiting with confidence to hear that our councils are confounded like those of the builders of Babel; and that our States are on the point of separation, only to meet hereafter for the purpose of cutting one another's throats. Thus I consent, Sir, to this Constitution because I expect no better, and because I am not sure, that it is not the best."
With Mason, Gerry, and Randolph withstanding appeals to attach their signatures, the other delegates in the hall formally signed the Constitution, and the convention adjourned at 4 o'clock in the afternoon.
Weary from weeks of intense pressure but generally satisfied with their work, the delegates shared a farewell dinner at City Tavern. Two blocks away on Market Street, Dunlap and Claypoole worked into the night on the final imprint of the six-page Constitution, 500 copies of which would leave Philadelphia on the morning stage. The debate over the nation's form of government was now set for the larger arena.
As the members of the convention returned home in the following days, Alexander Hamilton privately assessed the chances of the Constitution for ratification. In its favor were the support of Washington, commercial interests, men of property, creditors, and the belief among many Americans that the Articles of Confederation were inadequate. Against it were the opposition of a few influential men in the convention and state politicians fearful of losing power, the general revulsion against taxation, the suspicion that a centralized government would be insensitive to local interests, and the fear among debtors that a new government would "restrain the means of cheating Creditors."
Because of its size, wealth, and influence and because it was the first state to call a ratifying convention, Pennsylvania was the focus of national attention. The positions of the Federalists, those who supported the Constitution, and the anti-Federalists, those who opposed it, were printed and reprinted by scores of newspapers across the country. And passions in the state were most warm. When the Federalist-dominated Pennsylvania assembly lacked a quorum on September 29 to call a state ratifying convention, a Philadelphia mob, in order to provide the necessary numbers, dragged two anti-Federalist members from their lodgings through the streets to the State House where the bedraggled representatives were forced to stay while the assembly voted. It was a curious example of participatory democracy.
On October 5 anti-Federalist Samuel Bryan published the first of his "Centinel" essays in Philadelphia's Independent Gazetteer. Republished in newspapers in various states, the essays assailed the sweeping power of the central government, the usurpation of state sovereignty, and the absence of a bill of rights guaranteeing individual liberties such as freedom of speech and freedom of religion. "The United States are to be melted down," Bryan declared, into a despotic empire dominated by "well-born" aristocrats. Bryan was echoing the fear of many anti-Federalists that the new government would become one controlled by the wealthy established families and the culturally refined. The common working people, Bryan believed, were in danger of being subjugated to the will of an all-powerful authority remote and inaccessible to the people. It was this kind of authority, he believed, that Americans had fought a war against only a few years earlier.
The next day James Wilson, delivering a stirring defense of the Constitution to a large crowd gathered in the yard of the State House, praised the new government as the best "which has ever been offered to the world." The Scotsman's view prevailed. Led by Wilson, Federalists dominated in the Pennsylvania convention, carrying the vote on December 12 by a healthy 46 to 23.
The vote for ratification in Pennsylvania did not end the rancor and bitterness. Franklin declared that scurrilous articles in the press were giving the impression that Pennsylvania was "peopled by a set of the most unprincipled, wicked, rascally and quarrelsome scoundrels upon the face of the globe." And in Carlisle, on December 26, anti-Federalist rioters broke up a Federalist celebration and hung Wilson and the Federalist chief justice of Pennsylvania, Thomas McKean, in effigy; put the torch to a copy of the Constitution; and busted a few Federalist heads.
In New York the Constitution was under siege in the press by a series of essays signed "Cato." Mounting a counterattack, Alexander Hamilton and John Jay enlisted help from Madison and, in late 1787, they published the first of a series of essays now known as the Federalist Papers. The 85 essays, most of which were penned by Hamilton himself, probed the weaknesses of the Articles of Confederation and the need for an energetic national government. Thomas Jefferson later called the Federalist Papers the "best commentary on the principles of government ever written."
Against this kind of Federalist leadership and determination, the opposition in most states was disorganized and generally inert. The leading spokesmen were largely state-centered men with regional and local interests and loyalties. Madison wrote of the Massachusetts anti-Federalists, "There was not a single character capable of uniting their wills or directing their measures . . . They had no plan whatever." The anti-Federalists attacked wildly on several fronts: the lack of a bill of rights, discrimination against southern states in navigation legislation, direct taxation, the loss of state sovereignty. Many charged that the Constitution represented the work of aristocratic politicians bent on protecting their own class interests. At the Massachusetts convention one delegate declared, "These lawyers, and men of learning and moneyed men, that . . . make us poor illiterate people swallow down the pill . . . they will swallow up all us little folks like the great Leviathan; yes, just as the whale swallowed up Jonah!" Some newspaper articles, presumably written by anti-Federalists, resorted to fanciful predictions of the horrors that might emerge under the new Constitution; pagans and deists could control the government; the use of Inquisition-like torture could be instituted as punishment for federal crimes; even the pope could be elected president.
One anti-Federalist argument gave opponents some genuine difficulty -- the claim that the territory of the 13 states was too extensive for a representative government. In a republic embracing a large area, anti-Federalists argued, government would be impersonal, unrepresentative, dominated by men of wealth, and oppressive of the poor and working classes. Had not the illustrious Montesquieu himself ridiculed the notion that an extensive territory composed of varying climates and people, could be a single republican state? James Madison, always ready with the Federalist volley, turned the argument completely around and insisted that the vastness of the country would itself be a strong argument in favor of a republic. Claiming that a large republic would counterbalance various political interest groups vying for power, Madison wrote, "The smaller the society the fewer probably will be the distinct parties and interests composing it; the fewer the distinct parties and interests, the more frequently will a majority be found of the same party and the more easily will they concert and execute their plans of oppression." Extend the size of the republic, Madison argued, and the country would be less vulnerable to separate factions within it.
By January 9, 1788, five states of the nine necessary for ratification had approved the Constitution -- Delaware, Pennsylvania, New Jersey, Georgia, and Connecticut. But the eventual outcome remained uncertain in pivotal states such as Massachusetts, New York, and Virginia. On February 6, with Federalists agreeing to recommend a list of amendments amounting to a bill of rights, Massachusetts ratified by a vote of 187 to 168. The revolutionary leader, John Hancock, elected to preside over the Massachusetts ratifying convention but unable to make up his mind on the Constitution, took to his bed with a convenient case of gout. Later seduced by the Federalists with visions of the vice presidency and possibly the presidency, Hancock, whom Madison noted as "an idolater of popularity," suddenly experienced a miraculous cure and delivered a critical block of votes. Although Massachusetts was now safely in the Federalist column, the recommendation of a bill of rights was a significant victory for the anti-Federalists. Six of the remaining states later appended similar recommendations.
When the New Hampshire convention was adjourned by Federalists who sensed imminent defeat and when Rhode Island on March 24 turned down the Constitution in a popular referendum by an overwhelming vote of 10 to 1, Federalist leaders were apprehensive. Looking ahead to the Maryland convention, Madison wrote to Washington, "The difference between even a postponement and adoption in Maryland may . . . possibly give a fatal advantage to that which opposes the constitution." Madison had little reason to worry. The final vote on April 28, 63 for, 11 against. In Baltimore, a huge parade celebrating the Federalist victory rolled through the downtown streets, highlighted by a 15 foot float called "Ship Federalist." The symbolically seaworthy craft was later launched in the waters off Baltimore and sailed down the Potomac to Mount Vernon.
On July 2, 1788, the Confederation Congress, meeting in New York, received word that a reconvened New Hampshire ratifying convention had approved the Constitution. With South Carolina's acceptance of the Constitution in May, New Hampshire thus became the ninth state to ratify. The Congress appointed a committee "for putting the said Constitution into operation."
In the next 2 months, thanks largely to the efforts of Madison and Hamilton in their own states, Virginia and New York both ratified while adding their own amendments. The margin for the Federalists in both states, however, was extremely close. Hamilton figured that the majority of the people in New York actually opposed the Constitution, and it is probable that a majority of people in the entire country opposed it. Only the promise of amendments had ensured a Federalist victory.
The call for a bill of rights had been the anti-Federalists' most powerful weapon. Attacking the proposed Constitution for its vagueness and lack of specific protection against tyranny, Patrick Henry asked the Virginia convention, "What can avail your specious, imaginary balances, your rope-dancing, chain-rattling, ridiculous ideal checks and contrivances." The anti-Federalists, demanding a more concise, unequivocal Constitution, one that laid out for all to see the rights of the people as declaratory and restrictive limitations of the power of government, claimed that the brevity of the document only revealed its inferior nature. Richard Henry Lee despaired at the lack of provisions to protect "those essential rights of mankind without which liberty cannot exist." Trading the old government for the new without such a bill of rights, Lee argued, would be trading Scylla for Charybdis.
A bill of rights had been barely mentioned in the Philadelphia convention, most delegates holding that the fundamental rights of individuals had been secured in the state constitutions. James Wilson maintained that a bill of rights was superfluous because all power not expressly delegated to the new government was reserved to the people. It was clear, however, that in this argument the anti-Federalists held the upper hand.
Thomas Jefferson, on the scene in Europe at the dawn of the French Revolution, and generally in favor of the new government, saw things in a different light. The people were always entitled to the most sovereign guarantees of their personal liberties. He wrote to Madison that whatever the deficiencies of a "parchment barrier" they were better than no barriers. "The inconveniences of the Declaration [of Rights] are that it may cramp government in its useful exertions. But the evil of this is shortlived, moderate and reparable. The inconveniences of the want of a Declaration are permanent, afflicting and irreparable; they are in constant progression from bad to worse." A bill of rights was "what the people are entitled to against every government on earth."
By the fall of 1788, aided by his own reflection and Jefferson's letter, Madison became convinced that not only was a bill of rights necessary to ensure acceptance of the Constitution but that it would have positive effects. He wrote, on October 17, that such "fundamental maxims of free Government" would be "a good ground for an appeal to the sense of community" against potential oppression and would "counteract the impulses of interest and passion."
Madison's support of the bill of rights was of critical significance. in the face of formidible apathy, even of those who had paraded in this cause, Madison almost single-handedly framed and pushed thru the First Congress those amendments to the Constitution that compose the "Bill of Rights" As one of the new representatives from Virginia to the First Federal Congress, as established by the new Constitution, he worked tirelessly to persuade the House to enact amendments. Defusing the anti-Federalists' objections to the Constitution, Madison was able to shepherd through 17 amendments in the early months of the Congress, a list that was later trimmed to 12 in the Senate. On October 2, 1789, President Washington sent to each of the states a true bill of the resolve regarding of the 12 amendments as adopted by the Congress in September. By December 15, 1791, three-fourths of the states had ratified the 10 amendments now so familiar to Americans as the "Bill of Rights."
Benjamin Franklin told a French correspondent in 1788 that the formation of the new government had been like a game of dice, with many players of diverse prejudices and interests unable to make any uncontested moves. Madison wrote to Jefferson that the welding of these clashing interests was "a task more difficult than can be well conceived by those who were not concerned in the execution of it." When the delegates left Philadelphia after the convention, few, if any, were convinced that the Constitution they had approved outlined the ideal form of government for the country. But late in his life James Madison scrawled out another letter, one never addressed. In it he declared that no government can be perfect, and "that which is the least imperfect is therefore the best government."
The fate of the United States Constitution after its signing on September 17, 1787, can be contrasted sharply to the travels and physical abuse of America's other great parchment, the Declaration of Independence. As the Continental Congress, during the years of the revolutionary war, scurried from town to town, the rolled-up Declaration was carried along. After the formation of the new government under the Constitution, the one-page Declaration, eminently suited for display purposes, graced the walls of various government buildings in Washington, exposing it to prolonged damaging sunlight. It was also subjected to the work of early calligraphers responding to a demand for reproductions of the revered document. As any visitor to the National Archives can readily observe, the early treatment of the now barely legible Declaration took a disastrous toll.
The Constitution, in excellent physical condition after more than 200 years, has enjoyed a more serene existence. By 1796 the Constitution was in the custody of the Department of State along with the Declaration and traveled with the federal government from New York to Philadelphia to Washington. Both documents were secretly moved to Leesburg, VA, before the imminent attack by the British on Washington in 1814.
Following the war, the Constitution remained in the State Department while the Declaration continued its travels--to the Patent Office Building from 1841 to 1876, to Independence Hall in Philadelphia during the Centennial celebration, and back to Washington in 1877. On September 29, 1921, President Warren Harding issued an Executive order transferring the Constitution and the Declaration to the Library of Congress for preservation and exhibition.
The next day the Librarian of Congress, Herbert Putnam, acting on authority of Secretary of State Charles Evans Hughes, carried the Constitution and the Declaration in a Model-T Ford truck to the library and placed them in his office safe until an appropriate exhibit area could be constructed. The documents were officially put on display at a ceremony in the library on February 28, 1924. On February 20, 1933, at the laying of the cornerstone of the future National Archives Building, President Herbert Hoover remarked, "There will be aggregated here the most sacred documents of our history--the originals of the Declaration of Independence and of the Constitution of the United States."
The two documents however, were not immediately transferred to the Archives. During World War II both were moved from the library to Fort Knox for protection and returned to the library in 1944. It was not until successful negotiations were completed between Librarian of Congress Luther Evans and Archivist of the United States Wayne Grover that the transfer to the National Archives was finally accomplished by special direction of the Joint Congressional Committee on the Library.
On December 13, 1952, the Constitution and the Declaration were placed in helium-filled cases, enclosed in wooden crates, laid on mattresses in an armored Marine Corps personnel carrier, and escorted by ceremonial troops, two tanks, and four servicemen carrying submachine guns down Pennsylvania and Constitution avenues to the National Archives. Two days later, President Harry Truman declared at a formal ceremony in the Archives Exhibition Hall.
"We are engaged here today in a symbolic act. We are enshrining these documents for future ages. This magnificent hall has been constructed to exhibit them, and the vault beneath, that we have built to protect them, is as safe from destruction as anything that the wit of modern man can devise. All this is an honorable effort, based upon reverence for the great past, and our generation can take just pride in it."
Taken from U.S. Archives The Documents Themselves are Preserved for Posterity,
But Are Liberty and Freedom?
ONLY TRUE PATRIOTS CAN ANSWER THAT QUESTION.
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In Honor and Loving Memory of My Teacher on the Constitution
Dean Lewis Hardison, "Pop"
August 2nd, 1910 - September 18th, 1982
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This set of pages on the Constitution started Mar 23, 1996
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