Constitutional History, 1776–1789

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On July 4, 1776, King George III wrote in his diary, "Nothing of importance this day." When the news of the declaration of independence reached him, he still could not know how wrong he had been. The political philosophy of social compact, natural rights, and limited government that generated the Declaration of Independence also spurred the most important, creative, and dynamic constitutional achievements in history; the Declaration itself was merely the beginning. Within a mere thirteen years Americans invented or first institutionalized a bill of rights against all branches of government, the written constitution, the judicial review, and a solution to the colonial problem (admitting territories to the Union as states fully equal to the original thirteen). religious liberty, the separation of church and state, political parties, separation of powers, an acceptance of the principle of equality, and the conscious creation of a new nation were also among American institutional "firsts," although not all these initially appeared between 1776 and 1789. In that brief span of time, Americans created what are today the oldest major republic, political democracy, state constitution, and national constitution. These unparalleled American achievements derived not from originality in speculative theory but from the constructive application of old ideas, which Americans took so seriously that they constitutionally based their institutions of government on them.

From thirteen separate colonies the Second Continental Congress "brought forth a new nation," as abraham lincoln said. In May 1776, Congress urged all the colonies to suppress royal authority and adopt permanent governments. On that advice and in the midst of a war the colonies began to frame the world's first written constitutions. When Congress triggered the drafting of those constitutions, Virginia instructed its delegates to Congress to propose that Congress should declare "the United Colonies free and independent states." Neither Virginia nor Congress advocated state sovereignty. Congress's advice implied the erection of state governments with sovereign powers over domestic matters or "internal police."

On June 7, 1776, Congressman richard henry lee of Virginia introduced the resolution as instructed, and Congress appointed two committees, one to frame the document that became the Declaration of Independence and the other to frame a plan of confederation—a constitution for a continental government. When Lincoln declared, "The Union is older than the States, and in fact created them as States," he meant that the Union (Congress) antedated the states. The Declaration of Independence, which stated that the colonies had become states, asserted the authority of the "United States of America, in General Congress, Assembled."

The "spirit of '76" tended to be strongly nationalistic. The members of Congress represented the states, of course, and acted on their instructions, but they acted for the new nation, and the form of government they thought proper in 1776 was a centralized one. As a matter of fact benjamin franklin had proposed such a government on July 21, 1775, when he presented to Congress " articles of confederation and perpetual Union." Franklin urged a congressional government with an executive committee that would manage "general continental Business and Interests," conduct diplomacy, and administer finances. His plan empowered Congress to determine war and peace, exchange ambassadors, make foreign alliances, settle all disputes between the colonies, plant new colonies, and, in a sweeping omnibus clause, make laws for "the General Welfare" concerning matters on which individual colonies "cannot be competent," such as "our general Commerce," "general Currency," the establishment of a post office, and governance of "our Common Forces." Costs were to be paid from a common treasury supplied by each colony in proportion to its male inhabitants, but each colony would raise its share by taxing its inhabitants. Franklin provided for an easy amendment process: Congress recommended amendments that would become part of the Articles when approved by a majority of colonial assemblies. Franklin's plan of union seemed much too radical in July 1775, when independence was a year away and reconciliation with Britain on American terms was the object of the war. Congress simply tabled the Franklin plan.

As the war continued into 1776, nationalist sentiment strengthened. thomas paine'sCommon Sense called for American independence and "a Continental form of Government." Nationalism and centralism were twin causes. john langdon of New Hampshire favored independence and "an American Constitution" that provided for appeals from every colony to a national congress "in everything of moment relative to governmental matters." Proposals for a centralized union became common by the spring of 1776, and these proposals, as the following representative samples suggest, tended to show democratic impulses. Nationalism and mitigated democracy, not nationalism and conservatism, were related. A New York newspaper urged the popular election of a national congress with a "superintending power" over the individual colonies as to "all commercial and Continental affairs," leaving to each colony control over its "internal policy." A populistic plan in a Connecticut newspaper recommended that the congress be empowered to govern "all matters of general concernment" and "every other thing proper and necessary" for the benefit of the whole, allowing the individual colonies only that which fell "within the territorial jurisdiction of a particular assembly." The "Spartacus" essays, which newspapers in New York, Philadelphia, and Portsmouth printed, left the state "cantons" their own legislatures but united all in a national congress with powers similar to those enumerated by Franklin, including a paramount power to "interfere" with a colony's "provincial affairs" whenever required by "the good of the continent." "Essex" reminded his readers that "the strength and happiness of America must be Continental, not Provincial, and that whatever appears to be for the good of the whole, must be submitted to by every Part." He advocated dividing the colonies into many smaller equal parts that would have equal representation in a powerful national congress chosen directly by the people, including taxpaying widows. Carter Braxton, a conservative Virginian, favored aristocratic controls over a congress that could not "interfere with the internal police or domestic concerns of any Colony.…"

Given the prevalence of such views in the first half of 1776, a representative committee of the Continental Congress probably mirrored public opinion when it framed a nationalist plan for confederation. On July 12, one month after the appointment of a thirteen-member committee (one from each state) to write a draft, john dickinson of Pennsylvania, the committee chairman, presented to Congress a plan that borrowed heavily from Franklin's. The Committee of the Whole of Congress debated the Dickinson draft and adopted it on August 20 with few changes. Only one was significant. Dickinson had proposed that Congress be empowered to fix the western boundaries of states claiming territory to the Pacific coast and to form new states in the west. The Committee of the Whole, bending to the wishes of eight states with extensive western claims, omitted that provision from its revision of the Dickinson draft. That omission became a stumbling block.

On August 20 the Committee of the Whole reported the revised plan of union to Congress. The plan was similar to Franklin's, except that Congress had no power over "general commerce." But Congress, acting for the United States, was clearly paramount to the individual states. They were not even referred to as "states." Collectively they were "the United States of America"; otherwise they were styled "colonies" or "colony," terms not compatible with sovereignty, to which no reference was made. Indeed, the draft merely reserved to each colony "sole and exclusive Regulation and Government of its internal police, in all matters that shall not interfere with the Articles of this Confederation." That crucial provision, Article III, making even "internal police" subordinate to congressional powers, highlighted the nationalist character of the proposed confederation.

The array of congressional powers included exclusive authority over war and peace, land and naval forces, treaties and alliances, prize cases, crimes on the high seas and navigable rivers, all disputes between states, coining money, borrowing on national credit, Indian affairs, post offices, weights and measures, and "the Defence and Welfare" of the United States. Congress also had power to appoint a Council of State and civil officers "necessary for managing the general Affairs of the United States." The Council of State, consisting of one member from each of the thirteen, was empowered to administer the United States government and execute its measures. Notwithstanding this embryonic executive branch, the government of the United States was congressional in character, consisting of a single house whose members were to be elected annually by the legislatures of the colonies. Each colony cast one vote, making each politically equal in Congress. On all important matters, the approval of nine colonies was required to pass legislation. Amendments to the Articles needed the unanimous approval of the legislatures of the various colonies, a provision that later proved to be crippling.

The Articles reported by the Committee of the Whole provoked dissension. States without western land claims opposed the omission of the provision in the Dickinson draft that gave Congress control over western lands. Large states opposed the principle of one vote for each state, preferring instead proportionate representation with each delegate voting. Sharp differences also emerged concerning the rule by which each state was to pay its quota to defray common expenses. Finally some congressmen feared the centralizing nature of the new government. Edward Rutledge of South Carolina did not like "the Idea of destroying all Provincial Distinctions and making every thing of the most minute kind bend to what they call the good of the whole.…" Rutledge resolved "to vest the Congress with no more Power than what is absolutely necessary." james wilson of Pennsylvania could declare that Congress represented "all the individuals of the states" rather than the states, but roger sherman of Connecticut answered, "We are representatives of states, not individuals." That attitude would undo the nationalist "spirit of '76."

Because of disagreements and the urgency of prosecuting the war, Congress was unable to settle on a plan of union in 1776. By the spring of 1777 the nationalist momentum was spent. By then most of the states had adopted constitutions and had legitimate governments. Previously, provisional governments of local "congresses," "conventions," and committees had controlled the states and looked to the Continental Congress for leadership and approval. But the creation of legitimate state governments reinvigorated old provincial loyalties. Local politicians, whose careers were provincially oriented, feared a strong central government as a rival institution. Loyalists no longer participated in politics, local or national, depleting support for central control. By late April of 1777, when state sovereignty triumphed, only seventeen of the forty-eight congressmen who had been members of the Committee of the Whole that adopted the Dickinson draft remained in Congress. Most of the new congressmen opposed centralized government.

James Wilson, who was a congressman in 1776 and 1777, recalled what happened when he addressed the Constitutional Convention on June 8, 1787:

Among the first sentiments expressed in the first Congs. one was that Virga. is no more. That Massts. is no more, that Pa. is no more c. We are now one nation of brethren. We must bury all local interests and distinctions. This language continued for some time. The tables at length began to turn. No sooner were the State Govts. formed than their jealousy & ambition began to display themselves. Each endeavored to cut a slice from the common loaf, to add to its own morsel, till at length the confederation became frittered down to the impotent condition in which it now stands. Review the progress of the articles of Confederation thro' Congress & compare the first and last draught of it [Farrand, ed., Records, I, 166–67].

The turning point occurred in late April 1777 when Thomas Burke of North Carolina turned his formidable localist opinions against the report of the Committee of the Whole. Its Article III, in his words, "expressed only a reservation [to the states] of the power of regulating the internal police, and consequently resigned every other power [to Congress]." Congress, he declared, sought even to interfere with the states' internal police and make its own powers "unlimited." Burke accordingly moved the following substitute for Article III, which became Article II of the Articles as finally adopted: "Each State retains its sovereignty, freedom and independence, and every power, jurisdiction and right, which is not by this confederation expressly delegated to the United States in Congress assembled." Burke's motion carried by the votes of eleven states, vitiating the powers of the national government recommended by the Committee of the Whole.

In the autumn of 1777 a Congress dominated by state-sovereignty advocates completed the plan of confederation. Those who favored proportionate representation in Congress with every member entitled to vote lost badly to those who favored voting by states with each state having one vote. Thereafter the populous wealthy states had no stake in supporting a strong national government that could be controlled by the votes of lesser states. The power of Congress to negotiate commercial treaties effectively died when Congress agreed that under the Articles no treaty should violate the power of the states to impose tariff duties or prohibit imports and exports. The power of Congress to settle all disputes between states became merely a power to make recommendations. The permanent executive branch became a temporary committee with no powers except as delegated by the votes of nine states, the number required to adopt any major measure. Congress also agreed that it should not have power to fix the western boundaries of states claiming lands to the Pacific.

After the nationalist spurt of 1776 proved insufficient to produce the Articles, the states made the Confederation feckless. Even as colonies the states had been particularistic, jealous, and uncooperative. Centrifugal forces originating in diversity—of economics, geography, religion, class structure, and race—produced sectional, provincial, and local loyalties that could not be overcome during a war against the centralized powers claimed by Parliament. The controversy with Britain had produced passions and principles that made the Franklin and Dickinson drafts unviable. Not even these nationalist drafts empowered Congress to tax, although the principle of no taxation without representation had become irrelevant as to Congress. Similarly, Congress as late as 1774 had "cheerfully" acknowledged Parliament's legitimate "regulation of our external commerce," but in 1776 Congress denied that Parliament had any authority over America, and by 1777 Americans were unwilling to grant their own central legislature powers they preferred their provincial assemblies to wield. Above all, most states refused to repose their trust in any central authority that a few large states might dominate, absent a constitutionally based principle of state equality.

Unanimous consent for amendments to the Articles proved to be too high a price to pay for acknowledging the "sovereignty" of each state, although that acknowledgment made Maryland capable of winning for the United States the creation of a national domain held in common for the benefit of all. Maryland also won the promise that new states would be admitted to the union on a principle of state equality. That prevented the development of a colonial problem from Atlantic to Pacific, and the north-west ordinance of 1787 was the Confederation's finest and most enduring achievement.

The Constitution of 1787 was unthinkable in 1776, impossible in 1781 or at any time before it was framed. The Articles were an indispensable transitional stage in the development of the Constitution. Not even the Constitution would have been ratified if its Framers had submitted it for approval to the state legislatures that kept Congress paralyzed in the 1780s. Congress, representing the United States, authorized the creation of the states and ended up, as it had begun, as their creature. It possessed expressly delegated powers with no means of enforcing them. That Congress lacked commerce and tax powers was a serious deficiency, but not nearly so crippling as its lack of sanctions and the failure of the states to abide by the Articles. Congress simply could not make anyone, except soldiers, do anything. It acted on the states, not on people. Only a national government that could execute its laws independently of the states could have survived.

The states flouted their constitutional obligations. The Articles obliged the states to "abide by the determinations of the United States, in Congress assembled," but there was no way to force the states to comply. The states were not sovereign, except as to their internal police and tax powers; rather, they behaved unconstitutionally. No foreign nation recognized the states as sovereign, because Congress possessed the external attributes of sovereignty especially as to foreign affairs and war powers.

One of the extraordinary achievements of the Articles was the creation of a rudimentary federal system. It failed because its central government did not operate directly on individuals within its sphere of authority. The Confederation had no independent executive and judicial branches, because the need for them scarcely existed when Congress addressed its acts mainly to the states. The framers of the Articles distributed the powers of government with remarkable acumen, committing to Congress about all that belonged to a central government except, of course, taxation and commercial regulation, the two powers that Americans of the Revolutionary War believed to be part of state sovereignty. Even alexander hamilton, who in 1780 advocated that Congress should have "complete sovereignty," excepted "raising money by internal taxes."

Congress could requisition money from the states, but they did not pay their quotas. In 1781 Congress requisitioned $8,000,000 for the next year, but the states paid less than half a million. While the Articles lasted, the cumulative amount paid by all the states hardly exceeded what was required to pay the interest on the public debt for just one year.

Nationalists vainly sought to make the Articles more effective by both interpretation and amendment. Madison devised a theory of implied powers by which he squeezed out of the Articles congressional authority to use force if necessary against states that failed to fulfill their obligations. Congress refused to attempt coercion just as it refused to recommend an amendment authorizing its use. Congress did, however, charter a bank to control currency, but the opposition to the exercise of a power not expressly delegated remained so intense that the bank had to be rechartered by a state. Congress vainly sought unanimous state consent for various amendments that would empower it to raise money from customs duties and to regulate commerce, foreign and domestic. In 1781 every state but Rhode Island approved an amendment empowering Congress to impose a five percent duty on all foreign imports; never again did an amendment to the Articles come so close to adoption. Only four states ratified an amendment authorizing a congressional embargo against the vessels of any nation with whom the United States had no treaty of commerce. Congress simply had no power to negotiate commercial treaties with nations such as Britain that discriminated against American shipping. Nor had Congress the power to prevent states from violating treaties with foreign nations. In 1786 john jay, Congress's secretary of foreign affairs, declared that not a day had passed since ratification of the 1783 treaty of peace without its violation by at least one state. Some states also discriminated against the trade of others. Madison likened New Jersey, caught between the ports of Philadelphia and New York, "to a cask tapped at both ends." More important, Congress failed even to recommend needed amendments. As early as 1784 Congress was so divided it defeated an amendment that would enable it to regulate commerce, foreign and domestic, and to levy duties on imports and exports. Often Congress could not function for lack of a quorum. The requisite number of states was present for only three days between October 1785 and April 1786. In 1786 Congress was unable to agree on any amendments for submission to the states.

The political condition of the United States during the 1780s stagnated partly because of the constitutional impotence of Congress and the unconstitutional conduct of the states. The controversy with Britain had taught that liberty and localism were congruent. The 1780s taught that excessive localism was incompatible with nationhood. The Confederation was a necessary point of midpassage. It bequeathed to the United States the fundamentals of a federal system, a national domain, and a solution to the colonial problem. Moreover the Articles contained several provisions that were antecedents of their counterparts in the Constitution of 1787: a free speech clause for congressmen and legislative immunity, a privileges and immunities clause, a clause on the extradition of fugitives from justice, a full faith and credit clause, and a clause validating United States debts. The Confederation also started an effective government bureaucracy when the Congress in 1781 created secretaries for foreign affairs, war, marine, and finance—precursors of an executive branch. When the new departments of that branch began to function in 1789, a corps of experienced administrators, trained under the Articles, staffed them. The courts established by Congress to decide prize and admiralty cases as well as boundary disputes foreshadowed a national judiciary. Except for enactment of the great Northwest Ordinance, however, the Congress of the Confederation was moribund by 1787. It had successfully prosecuted the war, made foreign alliances, established the national credit, framed the first constitution of the United States, negotiated a favorable treaty of peace, and created a national domain. Congress's accomplishments were monumental, especially during wartime, yet in the end it failed.

By contrast, state government flourished. Excepting Rhode Island and Connecticut, all the states adopted written constitutions during the war, eight in 1776. Madison exultantly wrote, "Nothing has excited more admiration in the world than the manner in which free governments have been established in America, for it was the first instance, from the creation of the world that free inhabitants have been seen deliberating on a form of government, and selection of such of their citizens as possessed their confidence to determine upon and give effect to it."

The virginia constitution of 1776, the first permanent state constitution, began with a Declaration of Rights adopted three weeks before the Declaration of Independence. No previous bill of rights had restrained all branches of government. Virginia's reflected the widespread belief that Americans had been thrown back into a state of nature from which they emerged by framing a social compact for their governance, reserving to themselves certain inherent or natural rights, including life, liberty, the enjoyment of property, and the pursuit of happiness. Virginia's declaration explicitly declared that as all power derived from the people, for whose benefit government existed, the people could reform or abolish government when it failed them. On the basis of this philosophy Virginia framed a constitution providing for a bicameral legislature, a governor, and a judicial system. The legislature elected a governor, who held office for one year, had no veto power, and was encumbered by an executive council. The legislature chose many important officials, including judges.

Some states followed the more democratic model of the pennsylvania constitution of 1776, others the ultraconservative one of Maryland, but all state constitutions prior to the massachusetts constitution of 1780 were framed by legislatures, which in some states called themselves "conventions" or assemblies. Massachusetts deserves credit for having originated a new institution of government, a specially elected constitutional convention whose sole function was to frame the constitution and submit it for popular ratification. That procedure became the standard. Massachusetts's constitution, which is still operative, became the model American state constitution. The democratic procedure for making it fit the emerging theory that the sovereign people should be the source of the constitution and authorize its framing by a constitutional convention, rather than the legislature to which the constitution is paramount. Massachusetts was also the first state to give more than lip service to the principle of separation of powers. Everywhere else, excepting perhaps New York, unbalanced government and legislative supremacy prevailed. Massachusetts established the precedent for a strong, popularly elected executive with a veto power; elsewhere the governor tended to be a ceremonial head who depended for his existence on the legislature.

The first state constitutions and related legislation introduced significant reforms. Most states expanded voting rights by reducing property qualifications, and a few, including Vermont (an independent state from 1777 to 1791), experimented with universal manhood suffrage. Many state constitutions provided for fairer apportionment of representation in the legislature. Every southern state either abolished its establishment of religion or took major steps to achieve separation of church and state. Northern states either abolished slavery or provided for its gradual ending. Criminal codes were made more humane. The confiscation of Loyalist estates and of crown lands, and the opening of a national domain westward to the Mississippi, led to a democratization of landholding, as did the abolition of feudal relics such as the law of primogeniture and entail. The pace of democratic change varied from state to state, and in some states it was nearly imperceptible, but the Revolution without doubt occasioned constitutional and political developments that had long been dammed up under the colonial system.

The theory that a constitution is supreme law encouraged the development of judicial review. Written constitutions with bills of rights and the emerging principle of separation of powers contributed to the same end. Before the Revolution appellate judges tended to be dependents of the executive branch; the Revolution promoted judicial independence. Most state constitutions provided for judicial tenure during good behavior rather than for a fixed term or the pleasure of the appointing power. Inevitably when Americans believed that a legislature had exceeded its authority they argued that it had acted unconstitutionally, and they turned to courts to enforce the supreme law as law. The dominant view, however, was that a court holding a statute unconstitutional insulted the sovereignty of the legislature, as the reactions to holmes v. walton (1780) and trevett v. weeden (1786) showed. commonwealth v. caton (1782) was probably the first case in which a state judge declared that a court had power to hold a statute unconstitutional, though the court in that case sustained the act before it. In rutgers v. waddington (1784) Alexander Hamilton as counsel argued that a state act violating a treaty was unconstitutional, but the court declared that the judicial power advocated by counsel was "subversive of all government." Counsel in Trevett also contended that the court should void a state act. Arguments of counsel do not create precedents but can reveal the emergence of a new idea. Any American would have agreed that an act against a constitution was void; although few would have agreed that courts have the final power to decide matters of constitutionality, that idea was spreading. The ten pound act cases (1786) were the first in which an American court held a state enactment void, and that New Hampshire precedent was succeeded by a similar decision in the North Carolina case of bayard v. singleton (1787). The principle of marbury v. madison (1803) thus originated at a state level before the framing of the federal Constitution.

The Constitution originated in the drive for a strong national government that preceded the framing of the Articles of Confederation. The "critical period" of 1781–1787 intensified that drive, but it began well before the defects of the Articles expanded the ranks of the nationalists. The weaknesses of the United States in international affairs, its inability to enforce the peace treaty, its financial crisis, its helplessness during shays ' rebellion, and its general incapacity to govern resulted in many proposals—in Congress, in the press, and even in some states—for national powers to negotiate commercial treaties, regulate the nation's commerce, and check state policies that adversely affected creditor interests and impeded economic growth. Five states met at the Annapolis Convention in 1786, ostensibly to discuss a "uniform system" of regulating commerce, but those who masterminded the meeting had a much larger agenda in mind—as Madison put it, a "plenipotentiary Convention for amending the Confederation."

Hamilton had called for a "convention of all the states" as early as 1780, before the Articles were ratified, to form a government worthy of the nation. Even men who defended state sovereignty conceded the necessity of a convention by 1787. William Grayson admitted that "the present Confederation is utterly inefficient and that if it remains much longer in its present State of imbecility we shall be one of the most contemptible Nations on the face of the earth.…" luther martin admitted that Congress was "weak, contemptibly weak," and Richard Henry Lee believed that no government "short of force, will answer." "Do you not think," he asked george mason, "that it ought to be declared … that any State act of legislation that shall contravene, or oppose, the authorized acts of Congress, or interfere with the expressed rights of that body, shall be ipso facto void, and of no force whatsoever?" Many leaders, like thomas jefferson, advocated executive and judicial branches for the national government with "an appeal from state judicatures to a federal court in all cases where the act of Confederation controlled the question.…" rufus king, who also promoted a "vigorous Executive," thought that the needed power of Congress to regulate all commerce "can never be well exercised without a Federal Judicial." A consensus was developing.

The Annapolis Convention exploited and nurtured that consensus when it recommended to all the states and to Congress that a constitutional convention to "meet at Philadelphia on the second Monday in May next (1787), to take into consideration the situation of the United States, 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.…" Several states, including powerful Virginia and Pennsylvania, chose delegates for the Philadelphia convention, forcing Congress to save face on February 21, 1787, by adopting a motion in accord with the Annapolis recommendation, although Congress declared that the "sole and express purpose" of the convention was "revising the articles of confederation."

The constitutional convention of 1787, which formally organized itself on May 25, lasted almost four months, yet reached its most crucial decision almost at the outset. The first order of business was the nationalistic virginia plan (May 29), and the first vote of the Convention, acting as a Committee of the Whole, was the adoption of a resolution "that a national Government ought to be established consisting of a supreme legislative, Executive and Judiciary" (May 30). Thus the Convention immediately agreed on abandoning, rather than amending, the Articles; on writing a new Constitution; on creating a national government that would be supreme; and on having it consist of three branches.

The radical character of this early decision may be best understood by comparing it with the Articles. The Articles failed mainly because there was no way to force the states to fulfill their obligations or to obey the exercise of such powers as Congress did possess. "The great and radical vice in the construction of the existing Confederation," said Alexander Hamilton, "is the principle of legislation for states or governments, in their corporate capacities, and as contradistinguished from the individuals of which they consist." The Convention remedied that vital defect in the Articles, as George Mason pointed out (May 30), by agreeing on a government that "could directly operate on individuals." Thus the framers solved the critical problem of sanctions by establishing a national government that was independent of the states.

On the next day, May 31, the Committee of the Whole made other crucial decisions with little or no debate. One, reflecting the nationalist bias of the Convention, was the decision to establish a bicameral system whose larger house was to be elected directly by the people rather than by the state legislatures. Mason, no less, explained, "Under the existing confederacy, Congress represent the States not the people of the States; their acts operate on the States, not on the individuals. The case will be changed in the new plan of Government. The people will be represented; they ought therefore to choose the Representatives." Another decision of May 31 was to vest in the Congress the sweeping and undefined power, recommended by the Virginia Plan, "to legislate in all cases to which the separate States are incompetent; or in which the harmony of the U.S. may be interrupted by the exercise of individual [state] legislation; to negative all laws passed by the several States contravening in the opinion of the National Legislature the articles of Union, or any treaties subsisting under the authority of the Union." Not a state voted "nay" to this exceptionally nationalistic proposition. Nor did any state oppose the decision of the next day to create a national executive with similarly broad, undefined powers.

After deliberating for two weeks, the Committee of the Whole presented the Convention with its recommendations, essentially the adoption of the Virginia Plan. Not surprisingly, several of the delegates had second thoughts about the hasty decisions that had been made. elbridge gerry reiterated "that it was necessary to consider what the people would approve." Scrapping the Articles contrary to instructions and failing to provide for state equality in the system of representation provoked a reconsideration along lines described by william paterson of New Jersey as "federal" in contradistinction to "national." Yet injured state pride was a greater cause of dissension than were the powers proposed for the national government. Some delegates were alarmed, not because of an excessive centralization of powers in the national government but because of the excessive advantages given to the largest states at the expense of the others. Three states—Virginia, Massachusetts, and Pennsylvania—had forty-five percent of the white population in the country. Under the proposed scheme of proportionate representation, the small states feared that the large ones would dominate the others by controlling the national government.

On June 15, therefore, Paterson submitted for the Convention's consideration a substitute plan. It was a small states plan rather than a states ' rights one, for it too had a strong nationalist orientation. Contemplating a revision, rather than a scrapping, of the Articles, it retained the unicameral Congress with its equality of state representation, thus appeasing the small states. But the plan vested in Congress one of the two critical powers previously lacking: "to pass Acts for the regulation of trade and commerce," foreign and interstate. The other, the power of taxation, appeared only in a stunted form; Congress was to be authorized to levy duties on imports and to passstamp tax acts. Except for its failure to grant full tax powers, the paterson plan proposed the same powers for the national legislature as the finished Constitution. The Plan also contained the germ of the national supremacy clause of the Constitution, Article Six, by providing that acts of Congress and United States treaties "shall be the supreme law of the respective States … and that the Judiciary of the several States shall be bound thereby in their decisions, any thing in the respective laws of the Individual States to the contrary notwithstanding." The clause also provided for a federal judiciary with extensive jurisdiction and for an executive who could muster the military of the states to compel state obedience to the supreme law. Compulsion of states was unrealistic and unnecessary. Paterson himself declared that the creation of a distinct executive and judiciary meant that the government of the Union could "be exerted on individuals."

Despite its nationalist features, the Paterson Plan retained a unicameral legislature, in which the states remained equal, and the requisition system of rising a revenue, which had failed. "You see the consequence of pushing things too far," said John Dickinson of Delaware to Madison. "Some of the members from the small States wish for two branches in the General Legislature and are friends to a good National Government; but we would sooner submit to a foreign power than submit to be deprived of an equality of suffrage in both branches of the Legislature, and thereby be thrown under the domination of the large states." Only a very few dissidents were irreconcilably opposed to "a good National Government." Most of the dissidents were men like Dickinson and Paterson, "friends to a good National Government" if it preserved a wider scope for small state authority and influence.

When Paterson submitted his plan on June 15, the Convention agreed that to give it "a fair deliberation" it should be referred to the Committee of the Whole and that "in order to place the two plans in due comparison, the other should be recommitted." After debating the two plans, the Committee of the Whole voted in favor of reaffirming the original recommendations based on the Virginia Plan "as preferable to those of Mr. Paterson." Only three weeks after their deliberations, had begun the Framers decisively agreed, for the second time, on a strong, independent national government that would operate directly on individuals without the involvement of states.

But the objections of the small states had not yet been satisfied. On the next day, Connecticut, which had voted against the Paterson Plan, proposed the famous great compromise : proportionate representation in one house, "provided each State had an equal voice in the other." On that latter point the Convention nearly broke up, so intense was the conflict and deep the division. The irreconcilables in this instance were the leaders of the large-state nationalist faction, otherwise the most constructive and influential members of the Convention: Madison and James Wilson. After several weeks of debate and deadlock, the Convention on July 16 narrowly voted for the compromise. With ten states present, five supported the compromise, four opposed (including Virginia and Pennsylvania), and Massachusetts was divided. The compromise saved small-state prestige and saved the Convention from failure.

Thereafter consensus on fundamentals was restored, with Connecticut, New Jersey, and Delaware becoming fervent supporters of Madison and Wilson. A week later, for example, there was a motion that each state should be represented by two senators who would "vote per capita," that is, as individuals. Luther Martin of Maryland protested that per capita voting conflicted with the very idea of "the States being represented," yet the motion carried, with no further debate, 9–1.

On many matters of structure, mechanics, and detail there were angry disagreements, but agreement prevailed on the essentials. The office of the presidency is a good illustration. That there should be a powerful chief executive provoked no great debate, but the Convention almost broke up, for the second time, on the method of electing him. Some matters of detail occasioned practically no disagreement and revealed the nationalist consensus. Mason, of all people, made the motion that one qualification of congressmen should be "citizenship of the United States," and no one disagreed. Under the Articles of Confederation, there was only state citizenship; that there should be a concept of national citizenship seemed natural to men framing a constitution for a nation. Even more a revelation of the nationalist consensus was the fact that three of the most crucial provisions of the Constitution—the taxing power, the necessary and proper clause, and the supremacy clause—were casually and unanimously accepted without debate.

Until midway during its sessions, the Convention did not take the trouble to define with care the distribution of power between the national government and the states, although the very nature of the "federal" system depended on that distribution. Consensus on fundamentals once again provides the explanation. There would be no difficulty in making that distribution; and, the framers had taken out insurance, because at the very outset, they had endorsed the provision of the Virginia Plan vesting broad, undefined powers in a national legislature that would act on individuals. Some byplay of July 17 is illuminating. roger sherman of Connecticut thought that the line drawn between the powers of Congress and those left to the states was so vague that national legislation might "interfere … in any matters of internal police which respect the Government of such States only, and wherein the general welfare of the United States is not concerned." His motion to protect the "internal police" of the states brought no debaters to his side and was summarily defeated; only Maryland supported Connecticut. Immediately after, another small-state delegate, gunning bedford of Delaware, shocked even edmund randolph of Virginia, who had presented the Virginia Plan, by a motion to extend the powers of Congress by vesting authority "to legislate in all cases for the general interest of the Union." Randolph observed, "This is a formidable idea indeed. It involves the power of violating all the laws and constitution of the States, of intermeddling with their police." Yet the motion passed.

On July 26 the Convention adjourned until August 6 to allow a Committee on Detail to frame a "constitution conformable to the Resolutions passed by the Convention." Generously construing its charge, the committee acted as a miniature convention and introduced a number of significant changes. One was the explicit enumeration of the powers of Congress to replace the vague, omnibus provisions adopted previously by the Convention. Although enumerated, these powers were liberally expressed and formidable in their array. The committee made specific the spirit and intent of the Convention. Significantly the first enumerated power was that of taxation and the second that of regulating commerce among the states and with foreign nations: the two principal powers that had been withheld from Congress by the Articles. When the Convention voted on the provision that Congress "shall have the power to lay and collect taxes, duties, imposts and excises," the states were unanimous and only one delegate, Elbridge Gerry, was opposed. When the Convention next turned to the commerce power, there was no discussion and even Gerry voted affirmatively.

Notwithstanding its enumeration of the legislative powers, all of which the Convention accepted, the Committee on Detail added an omnibus clause that has served as an ever expanding source of national authority: "And to make all laws that shall be necessary and proper for carrying into execution the foregoing powers." The Convention agreed to that clause without a single dissenting vote by any state or delegate. The history of the great supremacy clause, Article Six, shows a similar consensus. Without debate the Convention adopted the supremacy clause, and not a single state or delegate voted nay. Finally, Article One, section 10, imposing restrictions on the economic powers of the states with respect to paper money, ex post facto laws, bills of credit, and contracts also reflected a consensus in the Convention. In sum, consensus, rather than compromise, was the most significant feature of the Convention, outweighing in importance the various compromises that occupied most of the time of the delegates.

But why was there such a consensus? The obvious answer (apart from the fact that opponents either stayed away or walked out) is the best: experience had proved that the nationalist constitutional position was right. If the United States was to survive and flourish, a strong national government had to be established. The Framers of the Constitution were accountable to public opinion; the Convention was a representative body. That its members were prosperous, well-educated political leaders made them no less representative than Congress. The state legislatures, which elected the members of the Convention, were the most unlikely instruments for thwarting the popular will. The Framers, far from being able to do as they pleased, were not free to promulgate the Constitution. Although they adroitly arranged for its ratification by nine state ratifying conventions rather than by all state legislatures, they could not present a plan that the people of the states would not tolerate. They could not control the membership of those state ratifying conventions. They could not even be sure that the existing Congress would submit the Constitution to the states for ratification, let alone for ratification by state conventions that had to be specially elected. If the Framers got too far astray from public opinion, their work would have been wasted. The consensus in the Convention coincided with an emerging consensus in the country that recaptured the nationalist spirit of '76. That the Union had to be strengthened was an almost universal American belief.

For its time the Constitution was a remarkably democratic document framed by democratic methods. Some historians have contended that the Convention's scrapping of the Articles and the ratification process were revolutionary acts which if performed by a Napoleon would be pronounced a coup d'état. But the procedure of the Articles for constitutional amendment was not democratic, because it allowed Rhode Island, with one-sixtieth of the nation's population, to exercise a veto power. The Convention sent its Constitution to the lawfully existing government, the Congress of the Confederation, for submission to the states, and Congress, which could have censured the Convention for exceeding its authority, freely complied—and thereby exceeded its own authority under the Articles! A coup d'état ordinarily lacks the deliberation and consent that marked the making of the Constitution and is characterized by a military element that was wholly lacking in 1787. A Convention elected by the state legislatures and consisting of many of the foremost leaders of their time deliberated for almost four months. Its members included many opponents of the finished scheme. The nation knew the Convention was considering changes in the government. The proposed Constitution was made public, and voters in every state were asked to choose delegates to vote for or against it after open debate. The use of state ratifying conventions fit the theory that a new fundamental law was being adopted and, therefore, conventions were proper for the task.

The Constitution guaranteed to each state a republican or representative form of government and fixed no property or religious qualifications on the right to vote or hold office, at a time when such qualifications were common in the states. By leaving voting qualifications to the states the Constitution implicitly accepted such qualifications but imposed none. The Convention, like the Albany Congress of 1754, the Stamp Act Congress, the Continental Congresses, and the Congresses of the Confederation, had been chosen by state (or colonial) legislatures, but the Constitution created a Congress whose lower house was popularly elected. When only three states directly elected their chief executive officer, the Constitution provided for the indirect election of the President by an electoral college that originated in the people and is still operative. The Constitution's system of separation of powers and elaborate checks and balances was not intended to refine out popular influence on government but to protect liberty; the Framers divided, distributed, and limited powers to prevent one branch, faction, interest, or section from becoming too powerful. Checks and balances were not undemocratic, and the Federalists were hard pressed not to apologize for checks and balances but to convince the Anti-Federalists, who wanted far more checks and balances, that the Constitution had enough. Although the Framers were not democrats in a modern sense, their opponents were even less democratic. Those opponents sought to capitalize on the lack of a bill of rights, and ratification of the constitution became possible only because leading Federalists committed themselves to amendments as soon as the new government went into operation. At that time, however, Anti-Federalists opposed a Bill of Rights because it would allay popular fears of the new government, ending the chance for state sovereignty amendments.

Although the Framers self-consciously refrained from referring to slavery in the Constitution, it recognized slavery, the most undemocratic of all institutions. That recognition was a grudging but necessary price of Union. The three-fifths clause of Article I provided for counting three-fifths of the total number of slaves as part of the population of a state in the apportionment of representation and direct taxation. Article IV, section 2, provided for rendition of fugitive slaves to the slaveholder upon his claim. On the other hand, Article I, section 9, permitted Congress to abolish the slave trade in twenty years. Most delegates, including many from slaveholding states, would have preferred a Constitution untainted by slavery; but Southern votes for ratification required recognition of slavery. By choosing a Union with slavery, the Convention deferred the day of reckoning.

The Constitution is basically a political document. Modern scholarship has completely discredited the once popular view, associated with charles beard, that the Constitution was undemocratically made to advance the economic interests of personalty groups, chiefly creditors. The largest public creditor at the Convention was Elbridge Gerry, who refused to sign the Constitution and opposed its ratification, and the largest private creditor was George Mason who did likewise. Indeed, seven men who either quit the Convention in disgust or refused to sign the Constitution held public securities that were worth over twice the holdings of the thirty-nine men who signed the Constitution. The most influential Framers, among them Madison, Wilson, Paterson, Dickinson, and Gouverneur Morris, owned no securities. Others, like Washington, who acted out of patriotism, not profit, held trifling amounts. Eighteen members of the Convention were either debtors or held property that depreciated after the new government became operative. On crucial issues at the Convention, as in the state ratifying conventions, the dividing line between groups for and against the Constitution was not economic, not between realty and personalty, or debtors and creditors, or town and frontier. The restrictions of Article I, section 10, on the economic powers of the states were calculated to protect creditor interests and promote business stability, but those restrictions were not undemocratic; if impairing the obligations of contracts or emitting bills of credit and paper money were democratic hallmarks, the Constitution left Congress free to be democratic. The interest groups for and against the Constitution were substantially similar. Economic interests did influence the voting on ratification, but no simple explanation that ignores differences between states and even within states will suffice, and many noneconomic influences were also at work. In the end the Constitution was framed and ratified because most voters came to share the vision held by Franklin in 1775 and Dickinson in 1776; those two, although antagonists in Pennsylvania politics, understood for quite different reasons that a strong central government was indispensable for nationhood.

Leonard W. Levy


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Constitutional History, 1776–1789

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Constitutional History, 1776–1789