CHAPTER II

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.

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