THE ESTABLISHMENT OF THE UNION
=The Articles of Confederation.=--The Continental Congress, which
managed the common affairs of the Union during the early stages of the
Revolution, was a body whose authority was not defined by any
constitution or fundamental law. It assumed large powers in the belief
that the people, relying upon its patriotism and wisdom, would acquiesce
in its acts. As yet, however, the states were not closely united, and
each was free to go its own way. As time passed, the advantages of union
became more manifest, and the states began to recognize the desirability
of creating a common government with larger powers and with definite
authority. After a debate lasting off and on for more than a year,
Congress adopted in November, 1777, an instrument called the Articles of
Confederation, which was to go into effect when ratified by all the
states.
_Ratification of the Articles._--During the years 1778 and 1779, all the
states except Maryland ratified the Articles. Maryland withheld her
approval because she doubted the advantage of a union among states, some
of which held vast territory in the West while some did not. The states
claiming lands northwest of the Ohio River were Virginia, New York,
Massachusetts, and Connecticut. As these lands had been wrested from
Great Britain while that power was weakened by her war with all the
states, Maryland insisted, as a condition to her adhesion, that the
states claiming these lands should surrender them to the nation for the
benefit of all the states. This argument appealed to the sense of
patriotism and justice of the states claiming this northwestern
territory, and in the course of the next few years they ceded most of
their lands to the United States for the common benefit. When it became
certain that this would be done, Maryland ratified the Articles, and the
Confederation of the states was completed.
=Government under the Articles.=--The Confederation thus formed was
styled a "firm league of friendship" under the name of "the United
States of America," and its declared purpose was to provide for the
common defense of the states, the security of their liberties, and their
mutual and general welfare. To secure these ends the states bound
themselves to assist each other against all attacks upon either or all
of them, upon any pretense whatever.
For the management of certain affairs common to the states composing the
Confederation, the Articles provided for an annual Congress of delegates
to be chosen by the states, no state to be represented by less than two
members or more than seven. Unlike the Continental Congress, the
Congress of the Confederation was given express power to deal with
certain affairs, and therefore it did not have to assume the powers it
exercised. Among these were the power to declare war and make peace; to
send and receive diplomatic representatives; to enter into treaties; to
make rules regarding captures on the high seas; to grant letters of
marque and reprisal; to settle disputes between the states, upon
petition of the disputants; to regulate the alloy and value of coin,
whether struck under the authority of Congress or by the states; to fix
the standard of weights and measures throughout the United States; to
regulate trade and intercourse with the Indians; to make rules for the
government of the land and naval forces; to establish post offices; and
a few other powers of a like character.
No provision, however, was made for an executive department or for a
national judiciary, with the single exception of a court of appeal in
cases involving captures on the high seas in time of war.
_Prohibitions on the States._--In the interest of the general peace and
security, the states were forbidden, except with the consent of
Congress, to send diplomatic representatives to foreign countries, or
enter into treaties or alliances, or levy any duties on articles
imported from abroad, if such duties should conflict with the provisions
of foreign treaties; or keep ships of war in times of peace; or engage
in war; or grant letters of marque and reprisal.
=Defects of the Articles of Confederation.=--Although the Articles of
Confederation proved of great value in securing concert of action among
the states in certain matters, the weaknesses of the union which they
created and the defects of the governmental machinery provided by them
soon proved serious.
_The States Retained too Much Power._--The union turned out to be the
loosest sort of a league, in which the states for the most part did as
they pleased. Each retained its own sovereignty and could not be
compelled to perform its obligations as a member of the Confederation.
Some of them deliberately violated the treaty of peace with Great
Britain, and the Congress was unable to prevent such infractions.
Congress being thus powerless to carry out the stipulations of the
treaty, Great Britain refused to perform her obligations thereunder.
Since no executive department and no courts were created to enforce and
apply the laws passed by Congress, the nation had to depend upon the
states to carry out its will.
_The Congress was not well Organized._--In the organization and
procedure of Congress there were serious defects. No member could serve
for more than three years in six, and each state paid its own members
and might recall them at pleasure. Thus the dependence of the
representative upon his state was emphasized and his character as a
national representative minimized. Worse than this was the provision
that allowed each state, regardless of its population and size, but one
vote in Congress. Thus Georgia with a population of only a few thousand
souls enjoyed the same power in all matters of national legislation that
Virginia did, although the population of Virginia was some sixteen times
as great. Still another serious weakness was the rule which required the
assent of nine states to pass any important bill, such as those for
borrowing or appropriating money, issuing bills of credit, declaring
war, entering into treaties, coining money, building war ships, raising
military forces, selecting commanders, and the like. As it was
frequently impossible to secure the concurrence of so large a proportion
of the states, needed legislation was often prevented by the opposition
of a few members or by the lack of a quorum. Thus in April, 1783, there
were present only twenty-five members from eleven states, nine being
represented by only two members each. It would have been possible,
therefore, for three members to defeat any important measure.[24]
[24] Andrews, "Manual of the Constitution," p. 38.
_Congress had No Power of Taxation._--Not only were the defects in the
organization and procedure of Congress of a serious character, but the
powers conferred upon it by the Articles of Confederation were so meager
that its authority was little more than a shadow and carried little
weight. One of the essential powers of government is that of taxation,
yet the Congress had no authority to impose a dollar of taxes on any
individual in the land. Money was needed to pay the soldiers who were
fighting the battles of the country, to pay the salaries and expenses of
diplomatic representatives who had been sent to Europe to negotiate
treaties and solicit the aid of foreign friends, to pay interest on
loans incurred in France and Holland, to defray the cost of building war
ships and equipping the army, and to meet the various other expenses
which every government must needs incur, yet the government of the
Confederation was powerless to raise the necessary funds by taxation. In
the absence of all power to levy and collect taxes, Congress adopted the
policy of apportioning the national expenses among the states. But no
state could be compelled to contribute a dollar toward its quota; some
of them in fact contributed little, and most of those which did respond
to the appeal of Congress did so grudgingly and tardily. Of the
$15,000,000 apportioned among the states between 1781 and 1786 less than
$2,000,000 was actually paid in. Often there was not a dollar in the
treasury of the Confederation to pay the obligations of the government.
Two attempts were made to amend the Articles of Confederation so as to
give Congress power to levy a five per cent tariff duty on imported
goods, but since it required the assent of each of the thirteen states
to adopt an amendment, the scheme fell through, in both cases on account
of the opposition of a single state.
_Congress had No Power to Regulate Commerce_, either with foreign
countries or among the states themselves. This was a serious defect.
Each state had its own tariff system and its own customhouses, and
collected its own duties on goods brought into its ports from abroad. As
each state was anxious to exploit this source of revenue for itself, it
naturally framed its tariff regulations and tonnage laws in such a way
as to attract foreign commerce to its own ports. And so it was with
regard to commerce among the states themselves. Each framed its trade
regulations with its neighbors according to its own selfish interests
and without regard to the general good. The result was continual
jealousies, dissensions, and sometimes reprisals and retaliations. New
York levied an import duty on certain articles brought in from its less
fortunate neighbors, Connecticut and New Jersey, and each in turn
retaliated as best it could. For purposes of foreign and interstate
commerce, each state was a nation itself, and the Confederation was a
nonentity.
=The Annapolis Convention.=--The worst evils described above reached a
climax in 1786, and the political leaders of America such as Hamilton
and Washington were convinced that the government of the Confederation
must either be revised or superseded entirely by a new system. In
September, 1786, there assembled at Annapolis, Maryland, a convention of
delegates from five states, namely, New York, New Jersey, Pennsylvania,
Delaware, and Virginia, called at the instance of the legislature of
Virginia to take into consideration the subject of uniform trade
regulation among the states, the lack of which had come to be one of the
chief evils of the Confederation. So few states were represented that
the convention decided not to enter upon the business for which it had
been called, but instead determined to put forth an effort to bring
about the assembling of a convention representing all the states and
empowered to take into consideration the question of a general revision
of the Articles of Confederation so as to render them more adequate to
the needs of the nation. Accordingly, a resolution prepared by Alexander
Hamilton, one of the delegates from New York, was adopted, calling on
the states to appoint delegates to a convention to be held at
Philadelphia on the second Monday in May next, for the purpose of
revising the Articles of Confederation.
=The Constitutional Convention of 1787; Personnel.=--In pursuance of
this resolution, all the states except Rhode Island promptly appointed
delegates, the failure of Rhode Island being due to her satisfaction
with the Confederation, under which she enjoyed larger commercial
advantages than she could hope to enjoy if the Articles were amended so
as to take away from the states their control over commerce. Altogether
fifty-five members sat in the convention at one time or another, though
only thirty-nine signed the Constitution. From Virginia came George
Washington, Edmund Randolph, and James Madison; from Massachusetts,
Rufus King and Elbridge Gerry; from Connecticut, William Samuel Johnson
and Roger Sherman; from New Hampshire, John Langdon; from New York,
Alexander Hamilton; from New Jersey, William Livingston and William
Paterson; from Pennsylvania, Benjamin Franklin, Robert and Gouverneur
Morris, Jared Ingersoll, and James Wilson; from Delaware, John
Dickinson; and from South Carolina, John Rutledge, Charles Pinckney, and
Charles Cotesworth Pinckney. Some of the delegates, as Benjamin
Franklin, had been members of the Albany Congress as far back as 1754;
some had been members of the Stamp Act Congress of 1765; most of them
had served in the Continental or Confederation Congresses; and a number
of them were signers of the Declaration of Independence. A great many of
them had served in the legislatures of their states, and of the whole
number there was not one who had not had some legislative experience.
=The Work of the Convention of 1787.=--When the convention had been duly
organized, "plans" of a proposed constitution were submitted by the
delegations of several states, and these became the bases of the
discussion which followed.
_The Virginia Plan._--The plan submitted by the Virginia delegation
represented the views of delegates from the larger and more populous
states, and the Constitution as finally adopted embodied more largely
the features of this plan than those of any other. The most important
resolution of this plan was that a national government ought to be
established consisting of a supreme legislative, judiciary, and
executive. This resolution, adopted in committee of the whole, went
directly to the root of the chief evil of the existing system, which
contained no provision for an executive or a judicial department. It
recognized also what has come to be a fundamental doctrine of American
political science, namely, the separation of the legislative, executive,
and judicial functions.
_The New Jersey Plan._--The views of delegates from the small states
were embodied in the New Jersey plan, which was laid before the
convention by William Paterson. In general, the New Jersey plan provided
for the retention of the principal features of the existing system,
except that it proposed to enlarge the powers of Congress so as to make
its authority more effective. This was all, in the judgment of the small
states, that was necessary to remove the existing evils.
_The Problem of Representation in Congress._--The convention without
much discussion decided that Congress should consist of two chambers or
houses instead of one as was the case under the Articles of
Confederation. This done, the next problem was to determine the basis of
representation in each. This proved to be one of the most difficult
tasks of the convention. The delegates from the large states insisted
that representation in both houses should be based on population, so
that a state such as Virginia with sixteen times the population of
Georgia should have sixteen times as many representatives in Congress.
But to this system of proportional representation, the delegates from
the small states objected. They maintained that the importance of a
state was not to be measured by its population; that the states were
sovereign political entities, and when it came to participation in the
government of the nation they were all equal, large and small alike.
There was no more reason, said a delegate from one of the small states,
why a large state should have more representation in Congress than that
a large man should have more votes than a small man. For a time the
differences seemed irreconcilable, and more than once it looked as if
the convention would be disrupted on this question. The spirit of
compromise triumphed, however, and it was finally agreed that the states
should be represented equally in the senate but in proportion to their
population in the house of representatives. As a result of this rule,
Nevada to-day with a population of less than 100,000 sends the same
number of senators to Washington as does New York with a population of
some 10,000,000 souls. New York, on the other hand, sends forty-three
representatives to Congress while Nevada sends but one. This was the
first great compromise of the Constitution.
_The Question of Counting the Slaves._--The next problem, which was
almost equally difficult and which likewise had to be settled by
compromise, was the question of whether the slaves should be counted in
determining the population of the state for purposes of representation.
The delegates from the Southern states argued that slaves were an
important factor in contributing to the wealth and power of the country
and should, therefore, be counted for purposes of representation. To
this argument the delegates from the Northern states, where the slave
population was inconsiderable, objected on the ground that the slaves at
law were treated merely as property and were not allowed to vote in the
states where they resided. The discussion over this question was long
and at times exciting, but finally a compromise was reached by which it
was agreed that in determining the population for purposes of
representation, all the white population but only three fifths of the
slaves should be counted. At the same time it was decided that direct
taxes among the states should be apportioned on the same basis. This
compromise was favorable to the slave states in that it gave them an
increased number of representatives, but it was unfavorable in that it
increased their proportion of direct taxes. This is known as the
three-fifths compromise.
_Federal Regulation of Commerce._--Another question which became the
subject of heated discussion related to the national control of
commerce. The Northern states wished Congress to be given the power to
regulate commerce, but the Southern states, which at the time furnished
the principal articles of export, feared that the power might be
employed in such a manner as to injure their commerce, and might also be
used to prohibit the slave trade and thus prevent the Southern planters
from stocking their farms with laborers. They accordingly insisted that
Congress should be expressly prohibited from interfering with the
importation of slaves, and that it should be allowed to pass navigation
acts only by a two-thirds majority of both houses. The whole matter was
finally settled by a compromise which forbade Congress to interfere with
the importation of slaves before the year 1808, but which allowed it to
pass laws by a majority vote for the regulation of commerce. This was
the last great compromise of the Constitution.
_Other Compromises._--Many other questions were settled on the basis of
compromise, though none of them occasioned so much discussion as the
three mentioned above. Some have regretted that such compromises as that
which allows the states equality of representation in the senate, as
well as the one which allowed representation on the basis of the slave
population, should have ever found their way into the Constitution; but
it is certain that without these compromises the Constitution could
never have been adopted.
After the settlement of the questions mentioned above, the work of
framing the Constitution proceeded with less difficulty. Finally, on
September 17, the completed draft was signed by thirty-nine delegates,
after which the convention adjourned. A few were absent and did not sign
for that reason; others, such as Gerry of Massachusetts and Mason of
Virginia, disapproved of the Constitution and refused to attach their
signatures.
=Ratification of the Constitution.=--Before adjourning, the convention
resolved to send the draft of the Constitution to Congress with the
request that it should transmit the instrument to the legislatures of
the several states and that these in turn should submit it to
conventions for ratification. It was agreed, moreover, that when it
should have been ratified by conventions in nine states it should go
into effect between the states so ratifying.
_Opposition to the Constitution._--As soon as the text of the
Constitution was made known to the people of the states, a flood of
criticism was turned loose on it from almost every part of the country.
Those who approved the Constitution and favored its ratification were
called Federalists; those who opposed it were called Anti-Federalists.
The principal grounds of opposition were that in providing for a
national government with extensive powers the Constitution had
sacrificed, to a large degree, the rights of the states; that such a
government would prove dangerous to the liberties of the people; that
the President for which the Constitution provided might become a
dictator and a tyrant; that the senate would be an oligarchy; and that
the Federal Constitution, unlike those of the states, contained no bill
of rights for the protection of the people against governmental
encroachment upon their inherent rights such as freedom of speech,
freedom of press, freedom of religious worship, freedom of assembly, and
the like. The last mentioned objection was removed by the assurance on
the part of the friends of the Constitution that in the event of
ratification they would endeavor to have the Constitution amended at the
earliest opportunity in such a way as to provide proper safeguards for
the security of these rights, a promise which was carried out soon after
the new government went into effect, by the adoption of the first ten
amendments.
_Ratification by the States._--The first state to ratify the
Constitution was Delaware, one of the small states whose delegates in
the Philadelphia convention had been strongly opposed to changing the
existing system. This state ratified on December 6, 1787, without a
dissenting vote. Its action was shortly followed by Pennsylvania, New
Jersey, Georgia, and Connecticut, the last three of which were small
states whose delegates in the Philadelphia convention had also been in
the opposition. In Pennsylvania, however, the Constitution was ratified
with less unanimity and only after a fierce struggle in which the
Anti-Federalists attacked almost every part of it. Massachusetts was the
next to ratify, although by a narrow majority, many of the leading
citizens being opposed or indifferent. Maryland and South Carolina
followed, and finally the favorable action of New Hampshire on June 21,
1788, insured its success, since nine states had now ratified and the
Constitution could be put into effect between the states that had so
ratified. Four days later, before news of the ratification of New
Hampshire was received, Virginia fell in line and ratified, in spite of
the powerful opposition of Patrick Henry, Mason, Lee, and others.
Attention was now turned to New York, where the opponents of the
Constitution were believed to be in the majority. Geographically, New
York was like a wedge which divided the Union into two parts, and hence
its adhesion was especially desirable. Because of its favorable
commercial position, the state enjoyed great advantages under the
Articles of Confederation, since it could collect and turn into its own
treasury the duties on all articles coming into its ports from abroad--a
privilege of which it would be deprived under the Constitution. There
was good reason, therefore, why it should hesitate to exchange its
position for one less favorable. When the state convention assembled to
take action on the Constitution, it was found that about two thirds of
the members were at first opposed to ratification. Among the friends of
the Constitution, however, was Alexander Hamilton, whose powerful
argument prevailed, and the Constitution was ratified by a majority of
three votes.
Rhode Island, like New York, enjoyed a favorable position under the
Articles of Confederation, and was not in sympathy with the
Constitution. She refused to ratify and remained out of the Union until
May, 1790, more than a year after the Constitution had gone into effect.
North Carolina likewise refused to ratify until November, 1789.
_The Constitution Goes into Effect._--When the ratification of the
Constitution had been assured, the old Congress of the Confederation
enacted that the new government should go into effect on March 4, 1789.
In the meantime senators and representatives were elected as the first
members of the new Congress, and George Washington was chosen President.
Thus the old Confederation passed away and the new Republic entered upon
its great career.
=The System of Government Created.=--The government created by the
Constitution is federal in character; that is, it consists of a system
of national and state government under a common sovereignty. It is a
republic as contradistinguished from such a limited monarchy as the
British; that is, it is a government having a popularly elected
executive rather than a titular executive who holds his office for life
by hereditary tenure, who is politically irresponsible, and who governs
through ministers who are responsible to the Parliament for his acts. It
is also distinguished from confederate government or that form in which
the states are practically sovereign and in which the general government
is nothing but the agent of the states for the care of a very few things
of common concern, such as defense against foreign aggression. Finally,
the American system is one of popular rather than of aristocratic
government, that is, it is government by the masses of the people
instead of government by the favored few.
=References.=--ANDREWS, Manual of the Constitution, ch. ii. BEARD,
American Government and Politics, ch. iii. BRYCE, The American
Commonwealth (abridged edition), ch. ii. FISKE, Critical Period of
American History, chs. vi-vii. HINSDALE, American Government, chs.
vii-xi.
=Documentary Material.=--1. The Articles of Confederation. 2. The
Constitution.
RESEARCH QUESTIONS
1. Trace the steps leading up to the meeting of the convention which
framed the Constitution.
2. How were the delegates to the convention chosen? What, in general,
was the nature of their instructions? Who was the oldest delegate? the
youngest? the most distinguished? Who of them were signers of the
Declaration of Independence? Who acted as president of the convention?
3. Name the members of the convention who refused to sign the
Constitution.
4. Why did Hamilton, the author of the resolution calling the
convention, take so little part in the work of making the Constitution?
5. Why did not New York send its ablest men to the convention?
6. Did the convention organize itself into committees for the
transaction of business?
7. What was the attitude of some of the delegates from the Eastern
states toward the West?
8. In general, what part of the country was in favor of the Constitution
and what part opposed?
9. What were some of the objections urged against its adoption?
10. Why was the Constitution not submitted to a direct vote of the
people as is the custom with state constitutions?
11. When the draft of the completed Constitution was laid before the
Congress of the Confederation, did that body make any changes in it
before submitting it to the states?
12. Might North Carolina and Rhode Island have remained permanently out
of the Union? If so, what would have been their status?
13. Do you think the time has come when the best interests of the
country require a new Constitution? What is your opinion of the
proposition that the country has outgrown the Constitution?
14. What, in the light of more than a century's experience, do you
consider some of the defects of the Constitution?