The Formation Of The Constitution


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

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


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


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



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


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."


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


A Government Founded on States or on People?--The


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


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


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


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.


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.