The Formation Of The Constitution
THE PROMISE AND THE DIFFICULTIES OF AMERICA
The rise of a young republic composed of thirteen states, each governed
by officials popularly elected under constitutions drafted by "the plain
people," was the most significant feature of the eighteenth century. The
majority of the patriots whose labors and sacrifices had made this
possible naturally looked upon their work and pronounced it good. Those
America
s, however, who peered beneath the surface of things, saw that
the Declaration of Independence, even if splendidly phrased, and paper
constitutions, drawn by finest enthusiasm "uninstructed by experience,"
could not alone make the republic great and prosperous or even free. All
around them they saw chaos in finance and in industry and perils for the
immediate future.
The Weakness of the Articles of Confederation
The government under
the Articles of Confederation had neither the strength nor the resources
necessary to cope with the problems of reconstruction left by the war.
The sole organ of government was a Congress composed of from two to
seven members from each state chosen as the legislature might direct and
paid by the state. In determining all questions, each state had one
vote--Delaware thus enjoying the same weight as Virginia. There was no
president to enforce the laws. Congress was given power to select a
committee of thirteen--one from each state--to act as an executive body
when it was not in session; but this device, on being tried out, proved
a failure. There was no system of national courts to which citizens and
states could appeal for the protection of their rights or through which
they could compel obedience to law. The two great powers of government,
military and financial, were withheld. Congress, it is true, could
authorize expenditures but had to rely upon the states for the payment
of contributions to meet its bills. It could also order the
establishment of an army, but it could only request the states to supply
their respective quotas of soldiers. It could not lay taxes nor bring
any pressure to bear upon a single citizen in the whole country. It
could act only through the medium of the state governments.
Financial and Commercial Disorders
In the field of public finance,
the disorders were pronounced. The huge debt incurred during the war was
still outstanding. Congress was unable to pay either the interest or the
principal. Public creditors were in despair, as the market value of
their bonds sank to twenty-five or even ten cents on the dollar. The
current bills of Congress were unpaid. As some one complained, there was
not enough money in the treasury to buy pen and ink with which to record
the transactions of the shadow legislature. The currency was in utter
chaos. Millions of dollars in notes issued by Congress had become mere
trash worth a cent or two on the dollar. There was no other expression
of contempt so forceful as the popular saying: "not worth a
Continental." To make matters worse, several of the states were pouring
new streams of paper money from the press. Almost the only good money in
circulation consisted of English, French, and Spanish coins, and the
public was even defrauded by them because money changers were busy
clipping and filing away the metal. Foreign commerce was unsettled. The
entire British system of trade discrimination was turned against the
Americans, and Congress, having no power to regulate foreign commerce,
was unable to retaliate or to negotiate treaties which it could enforce.
Domestic commerce was impeded by the jealousies of the states, which
erected tariff barriers against their neighbors. The condition of the
currency made the exchange of money and goods extremely difficult, and,
as if to increase the confusion, backward states enacted laws hindering
the prompt collection of debts within their borders--an evil which
nothing but a national system of courts could cure.
Congress in Disrepute
With treaties set at naught by the states, the
laws unenforced, the treasury empty, and the public credit gone, the
Congress of the United States fell into utter disrepute. It called upon
the states to pay their quotas of money into the treasury, only to be
treated with contempt. Even its own members looked upon it as a solemn
futility. Some of the ablest men refused to accept election to it, and
many who did take the doubtful honor failed to attend the sessions.
Again and again it was impossible to secure a quorum for the transaction
of business.
Troubles of the State Governments
The state governments, free to
pursue their own course with no interference from without, had almost as
many difficulties as the Congress. They too were loaded with
revolutionary debts calling for heavy taxes upon an already restive
population. Oppressed by their financial burdens and discouraged by the
fall in prices which followed the return of peace, the farmers of
several states joined in a concerted effort and compelled their
legislatures to issue large sums of paper money. The currency fell in
value, but nevertheless it was forced on unwilling creditors to square
old accounts.
In every part of the country legislative action fluctuated violently.
Laws were made one year only to be repealed the next and reenacted the
third year. Lands were sold by one legislature and the sales were
canceled by its successor. Uncertainty and distrust were the natural
consequences. Men of substance longed for some power that would forbid
states to issue bills of credit, to make paper money legal tender in
payment of debts, or to impair the obligation of contracts. Men heavily
in debt, on the other hand, urged even more drastic action against
creditors.
So great did the discontent of the farmers in New Hampshire become in
1786 that a mob surrounded the legislature, demanding a repeal of the
taxes and the issuance of paper money. It was with difficulty that an
armed rebellion was avoided. In Massachusetts the malcontents, under the
leadership of Daniel Shays, a captain in the Revolutionary army,
organized that same year open resistance to the government of the state.
Shays and his followers protested against the conduct of creditors in
foreclosing mortgages upon the debt-burdened farmers, against the
lawyers for increasing the costs of legal proceedings, against the
senate of the state the members of which were apportioned among the
towns on the basis of the amount of taxes paid, against heavy taxes, and
against the refusal of the legislature to issue paper money. They seized
the towns of Worcester and Springfield and broke up the courts of
justice. All through the western part of the state the revolt spread,
sending a shock of alarm to every center and section of the young
republic. Only by the most vigorous action was Governor Bowdoin able to
quell the uprising; and when that task was accomplished, the state
government did not dare to execute any of the prisoners because they had
so many sympathizers. Moreover, Bowdoin and several members of the
legislature who had been most zealous in their attacks on the insurgents
were defeated at the ensuing election. The need of national assistance
for state governments in times of domestic violence was everywhere
emphasized by men who were opposed to revolutionary acts.
Alarm over Dangers to the Republic
Leading American citizens,
watching the drift of affairs, were slowly driven to the conclusion that
the new ship of state so proudly launched a few years before was
careening into anarchy. "The facts of our peace and independence," wrote
a friend of Washington, "do not at present wear so promising an
appearance as I had fondly painted in my mind. The prejudices,
jealousies, and turbulence of the people at times almost stagger my
confidence in our political establishments; and almost occasion me to
think that they will show themselves unworthy of the noble prize for
which we have contended."
Washington himself was profoundly discouraged. On hearing of Shays's
rebellion, he exclaimed: "What, gracious God, is man that there should
be such inconsistency and perfidiousness in his conduct! It is but the
other day that we were shedding our blood to obtain the constitutions
under which we now live--constitutions of our own choice and making--and
now we are unsheathing our sword to overturn them." The same year he
burst out in a lament over rumors of restoring royal government. "I am
told that even respectable characters speak of a monarchical government
without horror. From thinking proceeds speaking. Hence to acting is
often but a single step. But how irresistible and tremendous! What a
triumph for our enemies to verify their predictions! What a triumph for
the advocates of despotism to find that we are incapable of governing
ourselves!"
Congress Attempts Some Reforms
The Congress was not indifferent to
the events that disturbed Washington. On the contrary it put forth many
efforts to check tendencies so dangerous to finance, commerce,
industries, and the Confederation itself. In 1781, even before the
treaty of peace was signed, the Congress, having found out how futile
were its taxing powers, carried a resolution of amendment to the
Articles of Confederation, authorizing the levy of a moderate duty on
imports. Yet this mild measure was rejected by the states. Two years
later the Congress prepared another amendment sanctioning the levy of
duties on imports, to be collected this time by state officers and
applied to the payment of the public debt. This more limited proposal,
designed to save public credit, likewise failed. In 1786, the Congress
made a third appeal to the states for help, declaring that they had been
so irregular and so negligent in paying their quotas that further
reliance upon that mode of raising revenues was dishonorable and
dangerous.
THE CALLING OF A CONSTITUTIONAL CONVENTION
Hamilton and Washington Urge Reform
The attempts at reform by the
Congress were accompanied by demand for, both within and without that
body, a convention to frame a new plan of government. In 1780, the
youthful Alexander Hamilton, realizing the weakness of the Articles, so
widely discussed, proposed a general convention for the purpose of
drafting a new constitution on entirely different principles. With
tireless energy he strove to bring his countrymen to his view.
Washington, agreeing with him on every point, declared, in a circular
letter to the governors, that the duration of the union would be short
unless there was lodged somewhere a supreme power "to regulate and
govern the general concerns of the confederated republic." The governor
of Massachusetts, disturbed by the growth of discontent all about him,
suggested to the state legislature in 1785 the advisability of a
national convention to enlarge the powers of the Congress. The
legislature approved the plan, but did not press it to a conclusion.
The Annapolis Convention
Action finally came from the South. The
Virginia legislature, taking things into its own hands, called a
conference of delegates at Annapolis to consider matters of taxation and
commerce. When the convention assembled in 1786, it was found that only
five states had taken the trouble to send representatives. The leaders
were deeply discouraged, but the resourceful Hamilton, a delegate from
New York, turned the affair to good account. He secured the adoption of
a resolution, calling upon the Congress itself to summon another
convention, to meet at Philadelphia.
A National Convention Called (1787)
The Congress, as tardy as ever,
at last decided in February, 1787, to issue the call. Fearing drastic
changes, however, it restricted the convention to "the sole and express
purpose of revising the Articles of Confederation." Jealous of its own
powers, it added that any alterations proposed should be referred to the
Congress and the states for their approval.
Every state in the union, except Rhode Island, responded to this call.
Indeed some of the states, having the Annapolis resolution before them,
had already anticipated the Congress by selecting delegates before the
formal summons came. Thus, by the persistence of governors,
legislatures, and private citizens, there was brought about the
long-desired national convention. In May, 1787, it assembled in
Philadelphia.
The Eminent Men of the Convention
On the roll of that memorable
convention were fifty-five men, at least half of whom were acknowledged
to be among the foremost statesmen and thinkers in America. Every field
of statecraft was represented by them: war and practical management in
Washington, who was chosen president of the convention; diplomacy in
Franklin, now old and full of honor in his own land as well as abroad;
finance in Alexander Hamilton and Robert Morris; law in James Wilson of
Pennsylvania; the philosophy of government in James Madison, called the
"father of the Constitution." They were not theorists but practical men,
rich in political experience and endowed with deep insight into the
springs of human action. Three of them had served in the Stamp Act
Congress: Dickinson of Delaware, William Samuel Johnson of Connecticut,
and John Rutledge of South Carolina. Eight had been signers of the
Declaration of Independence: Read of Delaware, Sherman of Connecticut,
Wythe of Virginia, Gerry of Massachusetts, Franklin, Robert Morris,
George Clymer, and James Wilson of Pennsylvania. All but twelve had at
some time served in the Continental Congress and eighteen were members
of that body in the spring of 1787. Washington, Hamilton, Mifflin, and
Charles Pinckney had been officers in the Revolutionary army. Seven of
the delegates had gained political experience as governors of states.
"The convention as a whole," according to the historian Hildreth,
"represented in a marked manner the talent, intelligence, and
especially the conservative sentiment of the country."
THE FRAMING OF THE CONSTITUTION
Problems Involved
The great problems before the convention were nine
in number: (1) Shall the Articles of Confederation be revised or a new
system of government constructed? (2) Shall the government be founded on
states equal in power as under the Articles or on the broader and deeper
foundation of population? (3) What direct share shall the people have in
the election of national officers? (4) What shall be the qualifications
for the suffrage? (5) How shall the conflicting interests of the
commercial and the planting states be balanced so as to safeguard the
essential rights of each? (6) What shall be the form of the new
government? (7) What powers shall be conferred on it? (8) How shall the
state legislatures be restrained from their attacks on property rights
such as the issuance of paper money? (9) Shall the approval of all the
states be necessary, as under the Articles, for the adoption and
amendment of the Constitution?
Revision of the Articles or a New Government?--The moment the first
problem was raised, representatives of the small states, led by William
Paterson of New Jersey, were on their feet. They feared that, if the
Articles were overthrown, the equality and rights of the states would be
put in jeopardy. Their protest was therefore vigorous. They cited the
call issued by the Congress in summoning the convention which
specifically stated that they were assembled for "the sole and express
purpose of revising the Articles of Confederation." They cited also
their instructions from their state legislatures, which authorized them
to "revise and amend" the existing scheme of government, not to make a
revolution in it. To depart from the authorization laid down by the
Congress and the legislatures would be to exceed their powers, they
argued, and to betray the trust reposed in them by their countrymen.
To their contentions, Randolph of Virginia replied: "When the salvation
of the republic is at stake, it would be treason to our trust not to
propose what we find necessary." Hamilton, reminding the delegates that
their work was still subject to the approval of the states, frankly said
that on the point of their powers he had no scruples. With the issue
clear, the convention cast aside the Articles as if they did not exist
and proceeded to the work of drawing up a new constitution, "laying its
foundations on such principles and organizing its powers in such form"
as to the delegates seemed "most likely to affect their safety and
happiness."
A Government Founded on States or on People?--The
Compromise
Defeated in their attempt to limit the convention to a
mere revision of the Articles, the spokesmen of the smaller states
redoubled their efforts to preserve the equality of the states. The
signal for a radical departure from the Articles on this point was given
early in the sessions when Randolph presented "the Virginia plan." He
proposed that the new national legislature consist of two houses, the
members of which were to be apportioned among the states according to
their wealth or free white population, as the convention might decide.
This plan was vehemently challenged. Paterson of New Jersey flatly
avowed that neither he nor his state would ever bow to such tyranny. As
an alternative, he presented "the New Jersey plan" calling for a
national legislature of one house representing states as such, not
wealth or people--a legislature in which all states, large or small,
would have equal voice. Wilson of Pennsylvania, on behalf of the more
populous states, took up the gauntlet which Paterson had thrown down. It
was absurd, he urged, for 180,000 men in one state to have the same
weight in national counsels as 750,000 men in another state. "The
gentleman from New Jersey," he said, "is candid. He declares his opinion
boldly.... I will be equally candid.... I will never confederate on his
principles." So the bitter controversy ran on through many exciting
sessions.
Greek had met Greek. The convention was hopelessly deadlocked and on the
verge of dissolution, "scarce held together by the strength of a hair,"
as one of the delegates remarked. A crash was averted only by a
compromise. Instead of a Congress of one house as provided by the
Articles, the convention agreed upon a legislature of two houses. In the
Senate, the aspirations of the small states were to be satisfied, for
each state was given two members in that body. In the formation of the
House of Representatives, the larger states were placated, for it was
agreed that the members of that chamber were to be apportioned among the
states on the basis of population, counting three-fifths of the slaves.
The Question of Popular Election
The method of selecting federal
officers and members of Congress also produced an acrimonious debate
which revealed how deep-seated was the distrust of the capacity of the
people to govern themselves. Few there were who believed that no branch
of the government should be elected directly by the voters; still fewer
were there, however, who desired to see all branches so chosen. One or
two even expressed a desire for a monarchy. The dangers of democracy
were stressed by Gerry of Massachusetts: "All the evils we experience
flow from an excess of democracy. The people do not want virtue but are
the dupes of pretended patriots.... I have been too republican
heretofore but have been taught by experience the danger of a leveling
spirit." To the "democratic licentiousness of the state legislatures,"
Randolph sought to oppose a "firm senate." To check the excesses of
popular government Charles Pinckney of South Carolina declared that no
one should be elected President who was not worth $100,000 and that high
property qualifications should be placed on members of Congress and
judges. Other members of the convention were stoutly opposed to such
"high-toned notions of government." Franklin and Wilson, both from
Pennsylvania, vigorously championed popular election; while men like
Madison insisted that at least one part of the government should rest on
the broad foundation of the people.
Out of this clash of opinion also came compromise. One branch, the House
of Representatives, it was agreed, was to be elected directly by the
voters, while the Senators were to be elected indirectly by the state
legislatures. The President was to be chosen by electors selected as the
legislatures of the states might determine, and the judges of the
federal courts, supreme and inferior, by the President and the Senate.
The Question of the Suffrage
The battle over the suffrage was sharp
but brief. Gouverneur Morris proposed that only land owners should be
permitted to vote. Madison replied that the state legislatures, which
had made so much trouble with radical laws, were elected by freeholders.
After the debate, the delegates, unable to agree on any property
limitations on the suffrage, decided that the House of Representatives
should be elected by voters having the "qualifications requisite for
electors of the most numerous branch of the state legislature." Thus
they accepted the suffrage provisions of the states.
The Balance between the Planting and the Commercial States
After the
debates had gone on for a few weeks, Madison came to the conclusion that
the real division in the convention was not between the large and the
small states but between the planting section founded on slave labor and
the commercial North. Thus he anticipated by nearly three-quarters of a
century "the irrepressible conflict." The planting states had neither
the free white population nor the wealth of the North. There were,
counting Delaware, six of them as against seven commercial states.
Dependent for their prosperity mainly upon the sale of tobacco, rice,
and other staples abroad, they feared that Congress might impose
restraints upon their enterprise. Being weaker in numbers, they were
afraid that the majority might lay an unfair burden of taxes upon them.
Representation and Taxation.--The Southern members of the convention
were therefore very anxious to secure for their section the largest
possible representation in Congress, and at the same time to restrain
the taxing power of that body. Two devices were thought adapted to these
ends. One was to count the slaves as people when apportioning
representatives among the states according to their respective
populations; the other was to provide that direct taxes should be
apportioned among the states, in proportion not to their wealth but to
the number of their free white inhabitants. For obvious reasons the
Northern delegates objected to these proposals. Once more a compromise
proved to be the solution. It was agreed that not all the slaves but
three-fifths of them should be counted for both purposes--representation
and direct taxation.
Commerce and the Slave Trade.--Southern interests were also involved
in the project to confer upon Congress the power to regulate interstate
and foreign commerce. To the manufacturing and trading states this was
essential. It would prevent interstate tariffs and trade jealousies; it
would enable Congress to protect American manufactures and to break
down, by appropriate retaliations, foreign discriminations against
American commerce. To the South the proposal was menacing because
tariffs might interfere with the free exchange of the produce of
plantations in European markets, and navigation acts might confine the
carrying trade to American, that is Northern, ships. The importation of
slaves, moreover, it was feared might be heavily taxed or immediately
prohibited altogether.
The result of this and related controversies was a debate on the merits
of slavery. Gouverneur Morris delivered his mind and heart on that
subject, denouncing slavery as a nefarious institution and the curse of
heaven on the states in which it prevailed. Mason of Virginia, a
slaveholder himself, was hardly less outspoken, saying: "Slavery
discourages arts and manufactures. The poor despise labor when performed
by slaves. They prevent the migration of whites who really strengthen
and enrich a country."
The system, however, had its defenders. Representatives from South
Carolina argued that their entire economic life rested on slave labor
and that the high death rate in the rice swamps made continuous
importation necessary. Ellsworth of Connecticut took the ground that
the convention should not meddle with slavery. "The morality or wisdom
of slavery," he said, "are considerations belonging to the states. What
enriches a part enriches the whole." To the future he turned an
untroubled face: "As population increases, poor laborers will be so
plenty as to render slaves useless. Slavery in time will not be a speck
in our country." Virginia and North Carolina, already overstocked with
slaves, favored prohibiting the traffic in them; but South Carolina was
adamant. She must have fresh supplies of slaves or she would not
federate.
So it was agreed that, while Congress might regulate foreign trade by
majority vote, the importation of slaves should not be forbidden before
the lapse of twenty years, and that any import tax should not exceed $10
a head. At the same time, in connection with the regulation of foreign
trade, it was stipulated that a two-thirds vote in the Senate should be
necessary in the ratification of treaties. A further concession to the
South was made in the provision for the return of runaway slaves--a
provision also useful in the North, where indentured servants were about
as troublesome as slaves in escaping from their masters.
The Form of the Government
As to the details of the frame of
government and the grand principles involved, the opinion of the
convention ebbed and flowed, decisions being taken in the heat of
debate, only to be revoked and taken again.
The Executive.--There was general agreement that there should be an
executive branch; for reliance upon Congress to enforce its own laws and
treaties had been a broken reed. On the character and functions of the
executive, however, there were many views. The New Jersey plan called
for a council selected by the Congress; the Virginia plan provided that
the executive branch should be chosen by the Congress but did not state
whether it should be composed of one or several persons. On this matter
the convention voted first one way and then another; finally it agreed
on a single executive chosen indirectly by electors selected as the
state legislatures might decide, serving for four years, subject to
impeachment, and endowed with regal powers in the command of the army
and the navy and in the enforcement of the laws.
The Legislative Branch--Congress.--After the convention had made the
great compromise between the large and small commonwealths by giving
representation to states in the Senate and to population in the House,
the question of methods of election had to be decided. As to the House
of Representatives it was readily agreed that the members should be
elected by direct popular vote. There was also easy agreement on the
proposition that a strong Senate was needed to check the "turbulence" of
the lower house. Four devices were finally selected to accomplish this
purpose. In the first place, the Senators were not to be chosen directly
by the voters but by the legislatures of the states, thus removing their
election one degree from the populace. In the second place, their term
was fixed at six years instead of two, as in the case of the House. In
the third place, provision was made for continuity by having only
one-third of the members go out at a time while two-thirds remained in
service. Finally, it was provided that Senators must be at least thirty
years old while Representatives need be only twenty-five.
The Judiciary.--The need for federal courts to carry out the law was
hardly open to debate. The feebleness of the Articles of Confederation
was, in a large measure, attributed to the want of a judiciary to hold
states and individuals in obedience to the laws and treaties of the
union. Nevertheless on this point the advocates of states' rights were
extremely sensitive. They looked with distrust upon judges appointed at
the national capital and emancipated from local interests and
traditions; they remembered with what insistence they had claimed
against Britain the right of local trial by jury and with what
consternation they had viewed the proposal to make colonial judges
independent of the assemblies in the matter of their salaries.
Reluctantly they yielded to the demand for federal courts, consenting at
first only to a supreme court to review cases heard in lower state
courts and finally to such additional inferior courts as Congress might
deem necessary.
The System of Checks and Balances.--It is thus apparent that the
framers of the Constitution, in shaping the form of government, arranged
for a distribution of power among three branches, executive,
legislative, and judicial. Strictly speaking we might say four branches,
for the legislature, or Congress, was composed of two houses, elected in
different ways, and one of them, the Senate, was made a check on the
President through its power of ratifying treaties and appointments. "The
accumulation of all powers, legislative, executive, and judicial, in the
same hands," wrote Madison, "whether of one, a few, or many, and whether
hereditary, self-appointed, or elective, may justly be pronounced the
very definition of tyranny." The devices which the convention adopted to
prevent such a centralization of authority were exceedingly ingenious
and well calculated to accomplish the purposes of the authors.
The legislature consisted of two houses, the members of which were to be
apportioned on a different basis, elected in different ways, and to
serve for different terms. A veto on all its acts was vested in a
President elected in a manner not employed in the choice of either
branch of the legislature, serving for four years, and subject to
removal only by the difficult process of impeachment. After a law had
run the gantlet of both houses and the executive, it was subject to
interpretation and annulment by the judiciary, appointed by the
President with the consent of the Senate and serving for life. Thus it
was made almost impossible for any political party to get possession of
all branches of the government at a single popular election. As Hamilton
remarked, the friends of good government considered "every institution
calculated to restrain the excess of law making and to keep things in
the same state in which they happen to be at any given period as more
likely to do good than harm."
The Powers of the Federal Government
On the question of the powers
to be conferred upon the new government there was less occasion for a
serious dispute. Even the delegates from the small states agreed with
those from Massachusetts, Pennsylvania, and Virginia that new powers
should be added to those intrusted to Congress by the Articles of
Confederation. The New Jersey plan as well as the Virginia plan
recognized this fact. Some of the delegates, like Hamilton and Madison,
even proposed to give Congress a general legislative authority covering
all national matters; but others, frightened by the specter of
nationalism, insisted on specifying each power to be conferred and
finally carried the day.
Taxation and Commerce.--There were none bold enough to dissent from
the proposition that revenue must be provided to pay current expenses
and discharge the public debt. When once the dispute over the
apportionment of direct taxes among the slave states was settled, it was
an easy matter to decide that Congress should have power to lay and
collect taxes, duties, imposts, and excises. In this way the national
government was freed from dependence upon stubborn and tardy
legislatures and enabled to collect funds directly from citizens. There
were likewise none bold enough to contend that the anarchy of state
tariffs and trade discriminations should be longer endured. When the
fears of the planting states were allayed and the "bargain" over the
importation of slaves was reached, the convention vested in Congress the
power to regulate foreign and interstate commerce.
National Defense.--The necessity for national defense was realized,
though the fear of huge military establishments was equally present. The
old practice of relying on quotas furnished by the state legislatures
was completely discredited. As in the case of taxes a direct authority
over citizens was demanded. Congress was therefore given full power to
raise and support armies and a navy. It could employ the state militia
when desirable; but it could at the same time maintain a regular army
and call directly upon all able-bodied males if the nature of a crisis
was thought to require it.
The "Necessary and Proper" Clause.--To the specified power vested in
Congress by the Constitution, the advocates of a strong national
government added a general clause authorizing it to make all laws
"necessary and proper" for carrying into effect any and all of the
enumerated powers. This clause, interpreted by that master mind, Chief
Justice Marshall, was later construed to confer powers as wide as the
requirements of a vast country spanning a continent and taking its place
among the mighty nations of the earth.
Restraints on the States
Framing a government and endowing it with
large powers were by no means the sole concern of the convention. Its
very existence had been due quite as much to the conduct of the state
legislatures as to the futilities of a paralyzed Continental Congress.
In every state, explains Marshall in his Life of Washington, there was
a party of men who had "marked out for themselves a more indulgent
course. Viewing with extreme tenderness the case of the debtor, their
efforts were unceasingly directed to his relief. To exact a faithful
compliance with contracts was, in their opinion, a harsh measure which
the people could not bear. They were uniformly in favor of relaxing the
administration of justice, of affording facilities for the payment of
debts, or of suspending their collection, and remitting taxes."
The legislatures under the dominance of these men had enacted paper
money laws enabling debtors to discharge their obligations more easily.
The convention put an end to such practices by providing that no state
should emit bills of credit or make anything but gold or silver legal
tender in the payment of debts. The state legislatures had enacted laws
allowing men to pay their debts by turning over to creditors land or
personal property; they had repealed the charter of an endowed college
and taken the management from the hands of the lawful trustees; and they
had otherwise interfered with the enforcement of private agreements. The
convention, taking notice of such matters, inserted a clause forbidding
states "to impair the obligation of contracts." The more venturous of
the radicals had in Massachusetts raised the standard of revolt against
the authorities of the state. The convention answered by a brief
sentence to the effect that the President of the United States, to be
equipped with a regular army, would send troops to suppress domestic
insurrections whenever called upon by the legislature or, if it was not
in session, by the governor of the state. To make sure that the
restrictions on the states would not be dead letters, the federal
Constitution, laws, and treaties were made the supreme law of the land,
to be enforced whenever necessary by a national judiciary and executive
against violations on the part of any state authorities.
Provisions for Ratification and Amendment
When the frame of
government had been determined, the powers to be vested in it had been
enumerated, and the restrictions upon the states had been written into
the bond, there remained three final questions. How shall the
Constitution be ratified? What number of states shall be necessary to
put it into effect? How shall it be amended in the future?
On the first point, the mandate under which the convention was sitting
seemed positive. The Articles of Confederation were still in effect.
They provided that amendments could be made only by unanimous adoption
in Congress and the approval of all the states. As if to give force to
this provision of law, the call for the convention had expressly stated
that all alterations and revisions should be reported to Congress for
adoption or rejection, Congress itself to transmit the document
thereafter to the states for their review.
To have observed the strict letter of the law would have defeated the
purposes of the delegates, because Congress and the state legislatures
were openly hostile to such drastic changes as had been made. Unanimous
ratification, as events proved, would have been impossible. Therefore
the delegates decided that the Constitution should be sent to Congress
with the recommendation that it, in turn, transmit the document, not to
the state legislatures, but to conventions held in the states for the
special object of deciding upon ratification. This process was followed.
It was their belief that special conventions would be more friendly than
the state legislatures.
The convention was equally positive in dealing with the problem of the
number of states necessary to establish the new Constitution. Attempts
to change the Articles had failed because amendment required the
approval of every state and there was always at least one recalcitrant
member of the union. The opposition to a new Constitution was
undoubtedly formidable. Rhode Island had even refused to take part in
framing it, and her hostility was deep and open. So the convention cast
aside the provision of the Articles of Confederation which required
unanimous approval for any change in the plan of government; it decreed
that the new Constitution should go into effect when ratified by nine
states.
In providing for future changes in the Constitution itself the
convention also thrust aside the old rule of unanimous approval, and
decided that an amendment could be made on a two-thirds vote in both
houses of Congress and ratification by three-fourths of the states. This
change was of profound significance. Every state agreed to be bound in
the future by amendments duly adopted even in case it did not approve
them itself. America in this way set out upon the high road that led
from a league of states to a nation.
THE STRUGGLE OVER RATIFICATION
On September 17, 1787, the Constitution, having been finally drafted in
clear and simple language, a model to all makers of fundamental law, was
adopted. The convention, after nearly four months of debate in secret
session, flung open the doors and presented to the Americans the
finished plan for the new government. Then the great debate passed to
the people.
The Opposition
Storms of criticism at once descended upon the
Constitution. "Fraudulent usurpation!" exclaimed Gerry, who had refused
to sign it. "A monster" out of the "thick veil of secrecy," declaimed a
Pennsylvania newspaper. "An iron-handed despotism will be the result,"
protested a third. "We, 'the low-born,'" sarcastically wrote a fourth,
"will now admit the 'six hundred well-born' immediately to establish
this most noble, most excellent, and truly divine constitution." The
President will become a king; Congress will be as tyrannical as
Parliament in the old days; the states will be swallowed up; the rights
of the people will be trampled upon; the poor man's justice will be lost
in the endless delays of the federal courts--such was the strain of the
protests against ratification.
Defense of the Constitution
Moved by the tempest of opposition,
Hamilton, Madison, and Jay took up their pens in defense of the
Constitution. In a series of newspaper articles they discussed and
expounded with eloquence, learning, and dignity every important clause
and provision of the proposed plan. These papers, afterwards collected
and published in a volume known as The Federalist, form the finest
textbook on the Constitution that has ever been printed. It takes its
place, moreover, among the wisest and weightiest treatises on government
ever written in any language in any time. Other men, not so gifted, were
no less earnest in their support of ratification. In private
correspondence, editorials, pamphlets, and letters to the newspapers,
they urged their countrymen to forget their partisanship and accept a
Constitution which, in spite of any defects great or small, was the
only guarantee against dissolution and warfare at home and dishonor and
weakness abroad.
The Action of the State Conventions
Before the end of the year,
1787, three states had ratified the Constitution: Delaware and New
Jersey unanimously and Pennsylvania after a short, though savage,
contest. Connecticut and Georgia followed early the next year. Then came
the battle royal in Massachusetts, ending in ratification in February by
the narrow margin of 187 votes to 168. In the spring came the news that
Maryland and South Carolina were "under the new roof." On June 21, New
Hampshire, where the sentiment was at first strong enough to defeat the
Constitution, joined the new republic, influenced by the favorable
decision in Massachusetts. Swift couriers were sent to carry the news to
New York and Virginia, where the question of ratification was still
undecided. Nine states had accepted it and were united, whether more saw
fit to join or not.
Meanwhile, however, Virginia, after a long and searching debate, had
given her approval by a narrow margin, leaving New York as the next seat
of anxiety. In that state the popular vote for the delegates to the
convention had been clearly and heavily against ratification. Events
finally demonstrated the futility of resistance, and Hamilton by good
judgment and masterly arguments was at last able to marshal a majority
of thirty to twenty-seven votes in favor of ratification.
The great contest was over. All the states, except North Carolina and
Rhode Island, had ratified. "The sloop Anarchy," wrote an ebullient
journalist, "when last heard from was ashore on Union rocks."
The First Election
In the autumn of 1788, elections were held to
fill the places in the new government. Public opinion was overwhelmingly
in favor of Washington as the first President. Yielding to the
importunities of friends, he accepted the post in the spirit of public
service. On April 30, 1789, he took the oath of office at Federal Hall
in New York City. "Long live George Washington, President of the United
States!" cried Chancellor Livingston as soon as the General had kissed
the Bible. The cry was caught by the assembled multitude and given back.
A new experiment in popular government was launched.