THE MAKING OF THE CONSTITUTION
Notwithstanding the manifold differences between State and State in the
Confederation, there were everywhere groups of men who confronted much
the same economic conditions. Between the farmer who tilled his sterile
hillside acres in the interior of New England and the cultivator of the
richer soil of the Piedmont in Virginia and the Carolinas, a greater
identity of economic interests existed than the casual observer would
have suspected. The feeling of hostility which circumstances bred in the
followers of Daniel Shays toward the merchants of Boston was akin to
that which the farmers of middle and western Pennsylvania harbored
toward the aristocratic and wealthy classes of Philadelphia and the
eastern counties. A similar antagonism appears between the yeomen of the
uplands and the planters of the tidewater farther to the south,
accentuated, no doubt, by religious and racial differences. The
Scotch-Irish or German dissenter, who was treated with contempt as a
foreigner and forced to support a church established by a State
Government which discriminated against numbers and in favor of property,
was not likely to feel kindly toward the tidewater aristocracy. Bad
crops spelled disaster for these farmers, for they had incurred debt to
purchase their lands and had borrowed capital to work them. In hard
times they were the first to suffer, for whether money was scarce or
plentiful, the tax-collector and the money-lender knocked inexorably at
their doors. Bad roads kept them isolated and want of intercourse bred
much ignorance and prejudice in even honest men. Were the recorded
grievances of these inland groups brought together, they would show a
surprising agreement.
Set over against this interior population with predominant agrarian
interests were those classes, urban for the most part, whose income was
derived from personal rather than real property. Even at this time a
capitalist class of no mean proportions existed. No inconsiderable part
of this personalty was invested in shipping and manufacturing. A part,
not easily determined, was tied up in Western lands, which appealed
strongly to the speculative instincts of the American. The amount of
money at interest was also considerable in States like Massachusetts. As
creditors of the debt-burdened farmers these classes were everywhere on
the defensive. To this group should be added the holders of public
securities, both state and continental, who could not have remained
uninterested witnesses of the demise of the Confederation.
The logic of events was drawing these holders of personal property
together. Capitalists with idle money found the avenues to profitable
investment closed by the inability of Congress to offer protection to
either manufacturing or shipping; creditors with money at interest
witnessed with alarm the inability or unwillingness of state
legislatures to resist attacks upon private contracts and public
credit; holders of public securities shared the general contempt for a
Government, which, so far from providing for the ultimate redemption of
its obligations, could not even pay interest on its debts; speculators
in lands despaired of a rise in values so long as the Government could
not defend its borders and protect its frontier population. The desire
of all these classes, from Boston to Charleston, was for a Government
which would govern.
Under these circumstances the idea of a special convention to revise the
Articles of Confederation grew in favor. Some of the States, notably
Delaware, Massachusetts, and New Hampshire, had employed constituent
conventions to draft new frames of government. The legislature of New
York had in 1782 proposed a convention to revise the Articles of
Confederation. At the suggestion of Governor Bowdoin, the General Court
of Massachusetts had resolved in 1785 in favor of such a convention; but
the delegates in Congress, for reasons best known to themselves, had
refused to present the resolution. In any case Congress could hardly be
expected to take the initiative.
For many years Virginia and Maryland had been at loggerheads over the
navigation of the Potomac River and Chesapeake Bay. In 1784
commissioners from both States met at Alexandria, and subsequently at
Washington's country-seat, at Mount Vernon, to make a last effort to
adjudicate their differences. It speedily appeared that the question of
commercial regulations was one that concerned also their neighbors to
the north. Maryland proposed that Pennsylvania and Delaware should be
invited to a further conference. The assembly of Virginia went still
further and appointed delegates to meet with delegates from other States
"to take into consideration the trade of the United States" and "to
consider how far a uniform system in their commercial regulations may be
necessary to their common interest and their permanent harmony."
Annapolis was selected as the place of meeting.
The response of the States to this call was disappointing. Only five
States sent delegates. Positive action on trade relations was, of
course, out of the question. But Alexander Hamilton, who attended as a
delegate from New York, drafted a report which went far to redeem the
situation. Addressed to the legislatures of the States represented at
Annapolis, it called attention to the critical state of the Union and
the need of a convention of delegates with wider powers from all the
States; and in conclusion, it named Philadelphia and the second Monday
in May, 1787, as a suitable place and time for such a convention. "From
motives of respect" a copy of this report was sent to Congress.
With its wonted indecision, Congress dallied with this bold proposal
until late in the following February. Meantime, Virginia and other
States appointed delegates to the convention which Congress had not yet
sanctioned. When Congress finally issued the summons, it made no
reference to the Annapolis Convention, though it took over bodily the
recommendations of that body. The sole and express purpose of the
convention was declared to be the revision of the Articles of
Confederation.
The delegates to the Philadelphia Convention were to be "appointed by
the States." As a matter of course, the choice devolved upon the
legislature in every instance. To what extent the active economic
interests directed and controlled the selection is a mere matter of
speculation. Certain it is that the members of the convention belonged
to the governing class in their respective communities. Almost to a man
they had held important public positions. To a surprising extent they
came from the commercial sections of their States. "Not one member
represented in his immediate personal economic interests the small
farming or mechanic classes." A large majority were "directly and
personally interested in the outcome of their labors through their
ownership of property, real or personal." Many were holders of public
securities and profited by the later funding operations of the new
Government; some had invested in Western lands; others had capital
invested in manufacturing, shipping, and slaves. Thus circumstanced,
they had no mind to try doubtful experiments in government.
Among the first of the delegates to reach Philadelphia was James
Madison. Other members of the Virginia delegation soon joined him, and
on the 13th of May, Washington made what was really a triumphant entry
into the city. When the 14th dawned only a few delegates had arrived.
Inclement weather and bad roads detained many, no doubt; but a general
dilatoriness in heeding the summons was accountable for the tardiness
of others. Until a majority of States were represented, the delegates
could only adjourn from day to day. That the gentlemen from Virginia put
this time to good use appears from the plan which they drew up as a
tentative program and which Randolph presented to the convention.
Indeed, there is little doubt that much unrecorded progress was made
throughout the convention by informal conferences among the leaders.
It was not until Friday, May 25, that seven States were represented and
a preliminary organization could be effected. Washington was the
unanimous choice for president, though tradition has it that Franklin
was the first choice of many delegates. Altogether, though not at any
one time, there were fifty-five delegates in attendance from twelve
States. Rhode Island was never represented. The average attendance was
hardly more than thirty. It was possible, therefore, to adopt simple
rules of procedure and to permit full discussion. The credentials of the
delegates gave them, with a single exception, free hand in revising the
Articles of Confederation. Delaware alone forbade its representatives to
make any alterations which should deprive the State of its equal vote in
Congress.
As the doors closed on this notable body in the chamber over
Independence Hall in the State House, profound secrecy enveloped its
proceedings. Not until the publication of the journal by act of Congress
in 1819 were the actual proceedings of the convention divulged; and many
more years passed before Madison's notes on the debates were given to
the curious public. The earth scattered on the pavement to silence the
rattling of wheels and the sentries stationed at the doors to warn
intruders gave added emphasis to the importance of this gathering.
The task before the convention was one of immense difficulty. The most
general criticism of the Confederation was that expressed in the vague
phrase, "lack of power"; but the defect could not be overcome merely by
giving new powers to Congress. Any such increase of authority involved a
delicate readjustment of the relations of the States to each other and
to the central Government. Before the convention had been in session a
fortnight, a line of cleavage among the delegates appeared. To the most
obtuse mind the resolutions presented as the Virginia plan seemed to
reach far beyond any mere revision of the Articles of Confederation.
Randolph frankly admitted the scope of his resolutions by urging that a
union of the States merely federal would not suffice. The convention so
far yielded to the general drift as to adopt, in committee of the whole,
the resolution "that a national government ought to be established
consisting of a supreme Legislative, Executive, and Judiciary."
As the group of nationally minded delegates, led by Madison and Wilson,
of Pennsylvania, seized this initial advantage and secured the
acceptance, step by step, of the main features of a national government,
the delegates from the smaller States drew together in alarmed
opposition. It was in their behalf that Paterson, of New Jersey,
presented his resolutions. In contrast to the Virginia plan, this held
out only the prospect of an improved Confederation. Additional powers
were to be given to Congress and there was to be an executive and a
supreme judiciary; but the basal principle of the Confederation--the
equality of the States--was left untouched. Given the alternative
between the New Jersey plan and the Virginia plan as amended, seven
States voted for the latter. Only New York, New Jersey, and Delaware
preferred the former. The vote of Maryland was divided. The convention
then returned to the detailed consideration of the amended Virginia
plan. The large-State men were now disposed to make some concessions.
The word "national" was dropped from all the resolutions; and minor
changes were made in the interest of harmony. But on the fundamental
question of what was termed "proportional representation,"--that is,
representation of the States in proportion to numbers in the national
legislature,--no agreement seemed possible. More than once the
convention was on the point of adjourning _sine die_. Even the usually
placid Franklin suggested that "prayers imploring the assistance of
Heaven ... be held in this Assembly every morning."
In spite of the opposition of the smaller States, the convention finally
voted that the rule of suffrage in the first branch of the legislature
ought not to be according to that established by the Articles of
Confederation. Debate then turned on the manner of constituting the
upper chamber. On July 2, a vote was taken on the proposal of the
Connecticut delegation that each State should have an equal vote in the
upper house. The result was a tie, five States against five, with the
vote of one State divided. The deadlock seemed complete.
Hoping that a compromise might even yet be effected, General Pinckney
proposed a committee of one from each State to consider the whole
matter. Opposition was made, but the convention indorsed the proposal
and chose the members of the committee by ballot. The selection was
obviously favorable to the small-State party, for the committee
abandoned the idea of proportional representation in the second chamber.
On July 5, it recommended that in the first branch of the legislature
there should be one representative for every forty thousand inhabitants
in each State, counting three fifths of the slaves, and that in the
second chamber the States should have an equal vote. The first
proposition underwent further changes at the hands of a special
committee, but the principle of representation was accepted. On July 16,
the first proposition as amended and the second proposition without
change were adopted by a vote of five States to four, with the vote of
one State divided. Very properly historians have termed this the great
compromise of the Constitution, for without it the further work of the
convention would have been impossible. In agreeing that three fifths of
the slaves should be counted in apportioning representation, the
convention made no innovation, but simply took over the federal ratio
which Congress had recommended in 1783 as the basis for future
apportionment of requisitions among the States. On this point there was
no great difference of opinion in the convention.
It would be a mistake, however, to suppose that with this obstacle to
union removed, the Constitution speedily took form. On the contrary,
every proposal bristled with controversial points. The Northern
commercial States demanded insistently that Congress should be given
power to regulate commerce. It was, indeed, the desire of the commercial
classes in all the States that Congress should be given power to pass
retaliatory acts against Great Britain, but the planters of the
Carolinas and Georgia feared--not without reason--that the power to
regulate commerce might be used to interfere with the importation of
slaves. Here, too, the spirit of compromise prevailed. The power was
granted, but the importation of such persons as the States thought
proper to admit was not to be prohibited before the year 1808.
From first to last, divergent views were held as to the constitution of
the chief executive office. After the initial question, whether the
office should be single or plural, was decided, the manner of election
remained to be considered. The early proposal to make the President
elective by the national legislature was dropped as the office assumed
greater importance in the general scheme. If the independence of the
legislature was to be maintained, some form of indirect popular choice
was favored. But if the people were to elect, the larger States would
have a decided advantage. Here was the old question in another form. The
electoral scheme finally adopted was essentially a compromise. In most
instances--Mason, of Virginia, said nineteen out of twenty times--it was
believed that the electors would so scatter their votes that no
candidate would have a majority; consequently the Senate would make a
choice from among the five candidates having the highest votes. By this
arrangement the large States would in effect nominate and the small
States elect the President. But because the Senate had already been
given extensive powers, the convention transferred the final election to
the House, with the provision that the vote there should be by States.
The eventual election of a Vice-President was left to the Senate,
whenever the electoral college failed to make a choice.
From time to time the convention resorted to committees to facilitate
its work. Most important services were rendered by the committee of
detail, which early in August put into orderly and connected form the
conclusions which the convention had reached. It was the committee on
unfinished business which suggested the method finally adopted of
electing the President. In its final form and phrasing the Constitution
is the work of Gouverneur Morris, who prepared the report of the
committee of style.
Citizens of Philadelphia who took up their copies of the _Pennsylvania
Advertiser_ on Tuesday, September 17, found to their surprise that the
columns were completely filled with the new Constitution. This was their
first intimation of what the convention had really done. Rumor had
stalked abroad that the convention was rent by dissensions; but the
envious reader saw at the end of his paper the words, "Done in
convention by the unanimous consent of the States ... in witness whereof
we have hereunto subscribed our names." Done by unanimous consent of
the delegates the Constitution was not, for not all the delegates who
were present on the last day would affix their signatures. It was
Gouverneur Morris who suggested the phrase which gave a specious
unanimity to the work of the convention.
The thoughtful reader of the Constitution must have been impressed by
the new features which caught his eye. In place of the old inefficient
and powerless Congress, he observed a well-organized national
legislature, an independent executive, and a federal judiciary of ample
jurisdiction. Further scrutiny must have apprised him that the new
Government would operate directly upon individuals, thus remedying a
vital defect in the Confederation. The powers given to Congress may well
have set at rest the minds of anxious public creditors. With the power
to lay and collect taxes, to raise and support a military and naval
establishment, and to regulate commerce, Congress had ample means to pay
the public debt, to enforce its claims, and to offer protection to trade
and industry. Not less significant to property-owners were the brief
clauses in the new Constitution which sharply forbade States to emit
bills of credit, to make anything but gold and silver legal tender in
payment of debts, and to make laws impairing the obligation of
contracts.
[Map: Distribution of Votes in Ratification of the Constitution
The New England States (Based on the map of Dr. O. G. Libby)]
But what guaranty was there that States would observe these
prohibitions? The power to coerce a State was nowhere conferred. The
militia, to be sure, could be called out to execute the laws; and the
United States guaranteed to every State a republican form of government
and promised protection against domestic violence. Congress could deal
surely and effectively with any future Shays if it were invited to do
so. But what if a State passed a law violating the obligation of
contracts? The answer is contained in the clause which reads: "This
Constitution, and the Laws of the United States which shall be made in
Pursuance thereof; and all Treaties made, or which shall be made, under
the Authority of the United States, shall be the supreme Law of the
Land; and the Judges in every State shall be bound thereby, any Thing in
the Constitution or Laws of any State to the Contrary notwithstanding."
This and the correlative clause which extended the judicial power to all
cases arising under the Constitution, the laws and the treaties of the
United States, may be called the keystone of the whole constitutional
structure. "For the first time in history, courts are called upon by the
simple processes of administering justice, in cases where private right
or personal injury is involved, to uphold the structure of the body
politic." And there were those in the convention who believed that the
principle of judicial control included the power of passing upon the
constitutionality of laws enacted by Congress.
It was still within the power of the old Congress to expedite or block
the ratification of the new Constitution. The document which the
Philadelphia Convention presented was technically only a revision of the
Articles of Confederation, which might be altered only with the consent
of the legislatures of all thirteen States; but the last article of this
new instrument provided that when ratified by conventions (not
legislatures) in nine States, it should go into effect among the States
so acting. In effect, Congress was asked to sanction a secession of nine
States from the old Union which had been declared perpetual. Making a
virtue of necessity, Congress finally yielded and passed the
Constitution on to the States.
[Map: Distribution of Votes in Ratification of the Constitution
The Middle States (Based on the map of O. G. Libby)]
Since the party struggles of Whigs and Tories no campaign of continental
proportions had ever been seen like that which ensued between the
friends and foes of the new Constitution. By their forehandedness and
their clear perception of what they must do, the Federalists, as the
proponents of better government styled themselves, had a slight tactical
advantage. The Anti-Federalists resented the assumption of the name by
their opponents. They were the true friends of federal government, while
the friends of the new Constitution aimed to set up a consolidated
government. The press teemed with letters and essays, allegories and
satires, squibs and pasquinades, expostulating, warning, ridiculing. The
public was invited to heed the admonitions of Cato, Cassius, and many
another worthy Roman.
Although much the same arguments, sober or satirical, were used
everywhere, the campaign had to be fought out in the several States,
each with its own peculiar social, economic, and political conditions.
In Massachusetts the eastern counties, with their dominant commercial
and mercantile interests, favored the Constitution, while the interior
agricultural section, which had fought the battles of the Revolution and
recruited the ranks of Shays' army, opposed it. The interior counties of
New York containing the farming population were Anti-Federal, while the
city and county of New York with its environs--the commercial
section--were Federalist. In Pennsylvania, those who had opposed the
domination of the Scotch-Irish and German radicals in the State
Government now united in advocacy of the new Constitution. Here as
elsewhere the Federal area corresponded closely to the counties where
commercial and mercantile interests were most in evidence. In Virginia,
the old-time social and economic antagonism between east and west,
between the planters and merchants of the tidewater and the small
farmers of the interior, reappeared. Much the same alignment is found in
the Carolinas. Beyond the Alleghanies, the people were a unit in
opposing the Constitution.
Detailed studies of the geographical distribution of votes in the state
conventions, and recent investigations in the archives of the Treasury
Department, sustain the conclusion to which the historian is driven by
the testimony of contemporaries, that the fundamental opposition between
the advocates and opponents of the Constitution was based on
distinctions of wealth. On his first view of the Constitution young John
Quincy Adams wrote in his diary: "It is calculated to increase the
influence, and power, and wealth of those who have any already." A
writer in the _Boston Gazette_ declared that the supporters of the
Constitution consisted generally of the noble Order of Cincinnatus,
holders of public securities, bankers, and lawyers: "these with their
train of dependents form the Aristocratick combination." Over against
this should be put the remark of Alexander Hamilton: that the new
Constitution encountered the "opposition of all men much in debt, who
will not wish to see a government established, one object of which is to
restrain the means of cheating creditors." According to John Adams, the
Constitution was "the work of the commercial people in the seaport
towns, of the planters of the slaveholding states, of the officers of
the Revolutionary army, and the property-holders everywhere."
From November to the following July the campaign continued. Delaware,
New Jersey, and Georgia ratified the Constitution unanimously;
Connecticut by a majority of three to one; and Pennsylvania, by a
majority of two to one. But there is reason to believe that these
majorities in the ratifying conventions did not reflect public opinion
accurately. Massachusetts, Maryland, and South Carolina followed
hesitatingly, each proposing amendments to the Constitution. Toward the
end of June the ninth State, New Hampshire, threw in her lot with the
majority; and on the heels of this news came the intelligence that the
Old Dominion had also ratified. The Constitution was now the law of the
land. In the stanch Federal city of Philadelphia, the Fourth of July was
celebrated with great rejoicing, for in the parlance of the time the
sloop Anarchy was ashore on Union Rock, the old scow Confederation had
put to sea, and the good ship Federal Constitution had come into port
bringing a cargo of Public Credit and Prosperity.
[Map: Distribution of Votes in Ratification of the Constitution
The Southern States, 1787-1790 (Based on the map by Dr. O. G. Libby)]
But until New York ratified the Constitution this rejoicing was
premature. Geographically New York was a pivotal State. A union without
this member was not worthy of the name. The task of the Federalists was
here most difficult. Fully two thirds of the convention were at first
opposed to the Constitution. The leadership of the Federalists fell to
Hamilton. Together with James Madison and John Jay, he contributed to
the newspapers a series of essays in advocacy of the Constitution,
which, under the title _The Federalist_, have become a classic in our
political literature. Just how the Federalists succeeded in overcoming a
hostile majority and in securing a ratification of the Constitution by a
vote of thirty to twenty-seven, remains a mystery to this day.
Half a century later it became the habit of statesmen of the nationalist
school to speak of the Constitution as the work of the people of the
United States. John Marshall declared the Constitution to be "an
expression of the clear and deliberate will of the whole people." As a
matter of fact, no direct popular vote was taken at any stage in its
evolution. The delegates to the Philadelphia Convention were chosen by
the state legislatures; their work was ratified by conventions of
delegates in the several States; and these delegates were chosen in
every State but one on a carefully limited suffrage. New York alone
provided that delegates to the convention should be elected on the basis
of manhood suffrage. Elsewhere property qualifications were imposed
which disfranchised probably about one third of the adult male
population. In all the States a considerable proportion of the voters
abstained from voting. In Boston, where twenty-seven hundred were
qualified to vote, only seven hundred and sixty took the trouble to
vote for delegates to the state convention. A recent writer hazards the
guess that "not more than one fourth or one fifth of the adult white
males took part in the election of delegates to the state conventions."
If this be true, the Constitution expressed something less than the will
of the whole people and perhaps not even of a majority. The making of
the Constitution was clearly the work of a party rather than of the
whole people. In the ranks of the Federalist party were the wealth and
intelligence which made possible concerted and rapid action. The
leadership fell naturally to those who had been accustomed to public
life. From this point of view, the adoption of the Constitution was the
triumph of a "natural aristocracy."
Meantime, Congress nearing its end made testamentary provision for its
heir. After much wrangling and vacillation, it fixed upon New York as
the seat of the new Government and summoned the States to choose
presidential electors, Senators, and Representatives. The new national
legislature was to assemble on the first Wednesday in March, which fell
upon the 4th. To this summons, two States turned a deaf ear. Not having
ratified the new Constitution, North Carolina and Rhode Island were
strangely circumstanced. Of all the States which had entered into the
"firm league of friendship," they alone remained loyal--loyal, but
discredited.
BIBLIOGRAPHICAL NOTE
Full accounts of the work of the Federal Convention may be found
in the histories of Bancroft and Curtis; briefer accounts, in the
volumes already cited, by McMaster, Fiske, McLaughlin, and
Channing. A succinct narrative is given by Max Farrand, _The
Framing of the Constitution_ (1913). A suggestive volume, treating
of the Constitution as the resultant of conflicting economic
interests, is C. A. Beard's _An Economic Interpretation of the
Constitution of the United States_ (1913). Among the special
studies of the ratification of the Constitution may be mentioned,
O. G. Libby, _The Geographical Distribution of the Vote of the
Thirteen States on the Federal Constitution, 1787-1788_ (1888);
McMaster and Stone, _Pennsylvania and the Federal Constitution,
1787-1788_ (1888); S. B. Harding, _The Contest over the
Ratification of the Federal Constitution in the State of
Massachusetts_ (1896); and F. G. Bates, _Rhode Island and the
Formation of the Union_ (1898). The most illuminating notes of the
debates in the Convention were those taken by James Madison, which
are printed in the _Records of the Federal Convention_ (3 vols.,
edited by Farrand, 1911). The most valuable commentary on the
Constitution is still _The Federalist_, written by Madison,
Hamilton, and Jay.