This essay recaps the history and politics of the forming of the US
Constitution. It draws largely from the primary documents collected
The founders began drafting the "Articles of Confederation" (kammen86:pp10-18)
even before the Declaration of Independence was signed. It was
adopted Nov 15, 1777 and went into effect March 1, 1781. In other
words, it was contemporary with the sentiments of the Declaration of
Independence and the Revolutionary War.
0f current relevance:
...no treaty of commerce shall be made whereby the legislative power
of the respective states shall be restrained from imposing such
imposts and duties on foreigners, as their own people are subjected
The Articles admittedly had weaknesses. By Sep 1786, in a meeting
called by George Washington in Annapolis to improve river traffic on
the Potomac, there were calls to improve the Articles (kammen86:pp19-22).
Notably, the calls for change came from property owners with
interstate business concerns, not from the "lower orders" of farmers,
mechanics, and tradesmen.
The states sent delegates with instruction to propose amendments to
the existing articles.
There was soon a conflict between those who took this charge at face
value and those who wanted to propose a whole new scheme. This led
some to leave early and others to refuse to sign.
George Mason to Thomas Jefferson, May 26, 1788
Upon the most mature Consideration I am capable of, and from Motives
of sincere Patriotism, I was under the Necessity of refusing my
signature, as one of the Virginia Delegates; and drew up some general
Objections; which I intended to offer, by Way of Protest; but was
discouraged from doing so, by the precipitate, & intemperate, not to
say indecent Manner, in which the Business was conducted, during the
last Week of the Convention, after the Patrons of this new plan found
they had a decided Majority in their Favour, which was obtained by a
Compromise between the Eastern and the two Southern States, to permit
the latter to continue the importation of Slaves for twenty odd years;
a more favourite Object with them than the Liberty and Happiness of
...There are many other things very objectionable in the proposed
Constitution; particularly the almost unlimited Authority over the
Militia of the several States; whereby, under Colour of regulating,
they may disarm, or render useless the Militia, the more easily to
govern by a standing Army; or they may harass the Militia, by such
rigid Regulations, and intollerable Burdens, as to make the People
themselves desire its Abolition. By their power over elections, they
may so order them, as to deprive the People at large of any Share in
the Choice of their Representatives. (kammen86:p112)
Mason's full statement of Objections in Nov 1787 (kammen86:pp255-258) included:
The Judiciary of the United States is so constructed and extended as
to absorb and destroy the Judiciarys of the several States; thereby
rendering Law as tedious, intricate and expensive, and Justice so
unttainable, by a great part of the Community, as in England and
enabling the Rich to oppress and ruin the Poor.
...The President of the United States has the unrestrained Power of
granting Pardons for Treason; which may be sometimes exercised to
screen from Punishment those whom he had secretly instigated to commit
the Crime, and thereby prevent Discovery of his own Guilt.
...There is no Declaration of any kind for preserving the Liberty of
the Press, the Tryal by Jury in civil Causes; nor against the Danger
of standing Armys in time of Peace.
...This Government will commence in a moderate Aristocracy; it is at
present impossible to foresee whether it will, in its Operations,
produce a Monarchy, or a corrupt oppressive Aristocracy; it will most
probably vibrate some Years between the two, and then remain in the
one or the other.
Various proposals were made.
Virginia's "large state plan" included:
the articles of Confederation ought to be so corrected & enlarged as
to accomplish the objects proposed by their institution; namely,
"common defence, security of liberty and general welfare. (kammen86:p23)
...provision ought to be made for amendment of the Articles of Union
whensoever it shall seem necessary, and that the assent of the
National Legislature ought not to be required thereto. (kammen86:p25)
Charles Pinckney presented a plan May 29, 1787 (kammen86:pp26-30), which is
generally considered the basis for the final Constitution. Kammen
provides these biographical remarks:
Pinckney was a delegate from South Carolina to the Congress of the
Confederation (1784-1787) and to the Convention in Philadelphia. He
was a member of the committee that prepared the rules of procedure,
and he participated frequently and forcefully in the debates
throughout the COnvention. He campaigned vigorously for ratification
in the face of storng opposition from the South Carolina backcountry.
He then served as governor (1789-1792). (kammen86:p26)
[I've noticed the really insightful politicians head straight for the
The debate raged in newspaper articles, pamphlets, state legislatures,
and presumably in taverns and on the streets.
Some assumed nobility.
George Washington to Marquis de Lafayette, Feb 7, 1788
...my Creed is simply,
1st. That the general Government is not invested with more powers
than are indispensably necessary to perform the functions of a good
Government; and consequently, that no objection ought to [be] made
against the quantity of Power delegated to it.
2ly. That these Powers (as the appointment of all Rulers will for
ever arise from, and at short stated intervals, recur to the free
suffrage of the People) are so distributed among the Legislative,
Executive, and Judicial Branches, into which the general Government is
arranged, that it can never be in danger of degenerating into a
monarchy, an Oligarchy, an Aristocracy, or any other despotic or
oppressive form, so long as there shall remain any virtue in the body
of the People.
...Should that which is now offered to the People of America, be
found on experiment less perfect that it can be made, a Constitutional
door is left open for its amelioration. (kammen86:p102)
Some took human failings into account.
George Mason wrote August 15, 1787 that the Senate could "sell the
whole country by means of Treaties." (kammen86:p59).
Thomas Jefferson to John Adams, Nov 13, 1787
I confess there are things in it which stagger all my dispositions to
subscribe to what such an assembly has proposed. (kammen86:p84)
"Brutus" in a series of widely published letters identified specific
failings in the Consitution, article by article. His general thesis
was stated Nov 29, 1787:
The great art, therefore, in forming a good consitution, appears to be
this, so to frame it, as that those to whom power is committed shall
be subject to the same feelings, and aim at the same objects as the
people do, who transfer to them their authority. There is no possible
way to effect this but by an equal, full, and fair representation;
this therefore, is the great desideratum in politics. However fair an
appearance any government may make, though it may possess a thousand
plausible articles and be decorated with ever so many ornaments, yet
if it is deficient in this essential principle of a full and just
representation of the people, it will only [be] like a painted
sepulcher -- For, without this it cannot be a free government; let the
administration of it be good or ill, it still will be a government,
not according to the will of the people, but according to the will of
the few. (kammen86:p325)
The "Federalist Farmer" wrote a series of widely published articles
expressing concern (kammen86:pp261-301). He saw a systematic campaign: "This
consolidation of the states has been the object of several men in this
country for some time past." (kammen86:pg 265)
One Anti-Federalist argument was that the relatively small
membership of the House of Representatives meant that there would be
insufficient direct contact between legislators and their constituents
(except with the wealthy and influential few, of course). And
further, that this concentration of power would inevitably lead to
wealthy persons, and in fact family dynasties holding those seats in
the nominal "house of the people".
Further, they noted that this control is spelled out in the
constitution. Brutus, Nov 29, 1787:
By section 4, article 1, the Congress are authorized, at any time, by
law, to make, or alter, regulations respecting the time, place, and
manner of holding elections for senators and representatives, except
as to the places of choosing senators. By this clause the right of
election itself, is, in a great measure, transferred from the people
to their rulers. One would think, that if any thing was necessary to
be made a fundamental article of the original compact, it would be,
that of fixing the branches of the legislature, so as to put it out of
its power to alter itself by modifying the election of its own members
at will and pleasure. When a people once resign the privilege of a
fair election, they clearly have none left worth contending
A second great theme was that a bill of rights might not in itself
save liberty, but at least it would put it on the same footing as
those centralizing powers which *were* called out explicitly.
The Federalists argued that the States already had declarations of
rights and thus none were needed at the national level. The
Anit-Federalists quickly noted that the Consitution, called the
supreme law of the land, and authorized to deal directly with the
people inside a state, had total control. Several estimated it might
take 30 years or perhaps several generations before the states (and
their declarations of rights) were mere shadows of the federal
A third theme was that the Judical branch had far too much power with
far too much independence, that this was hidden from view by
superficial pleasantries, and that the result would be elimination of
the liberties and the mechanisms of liberty.
Brutus, Jan 31, 1788
The judicial power will operate to effect, in the most certain, but
silent and imperceptible manner, what is evidently the tendency of the
consitution: -- I mean, an entire subversion of the legislative,
executive, and judicial powers of the individual states.
His arguments (kammen86:pp331-360) hinge on these items:
- The need for an independent judiciary was important in the
British system due to the King paying the judges' salary, but not so
important in our system.
- Even the British, and even our own Confederation allowed for
removel due to neglect of duty. The Constitution required the
essentially impossible standard of high crimes.
- As an appellate court, the supreme court needs to review the
law, but the Constitution also gives it right to find the facts,
without any further appeal. It nullifies the jury system.
- As the highest appellate court, it would attract the best and
most expensive lawyers, and thus be out of reach for the common man.
- The court determines both the law and the equity (the common
sense) of the case. That gives it unbounded power to reinterpret the
Constitution as it sees fit, most likely in favor of those of a
kindred spirit and social class.
- The preamble clause "establish justice" implies the states have
been unable to do so, and thus the supreme court must reach into the
states to apply its own insights to local conditions. This in itself
will render the states (and their laws and legislative processes)
The Federalists had carried the day in the Convention, without a
declaration of rights. They included habeus corpus, but allowed the
government to override it in times of insurrection. They thereafter
fought hard against any further declaration of rights. Yet they
eventually had to agree to promise to address this after the
Constitution was enacted. They did so to avoid the even worse option
(in their opinion) of a second Convention where the various concerns
could be addressed systematically.
The maneuvering behind the scenes is illustrated in a letter from
James Madison (Federalist) to Thomas Jefferson (Anti-Federalist) re
Massachussetts, Feb 19, 1788:
...the vote stood 187 against 168; a majority of 19 only being in
favor of the Constitution. The prevailing party comprised however all
men of abilities, of property, and of influence. In the opposite
multitude there was not a single character capable of uniting their
wills or directing their measures. It was made up partly of deputies
from the province of Maine who apprehended difficulties from the New
Govermnment to their scheme of separation, partly of men who had
espoused the disaffection of Shay's; and partly of ignorant and
jealous men, who had been taught or fancied that the Convention at
Phalida. had entered into a conspiracy against the liberties of the
people at large, in order to erect an aristocracy for the rich, the
well-born, and the men of Education. (kammen86:p104)
Among themselves, the Federalists were even more bluntly political.
James Madison to Alexander Hamilton, June 22, 1788
The plan mediated by friends [of] the Constitution is to preface the
ratification with some plain and general truths that can not affect
the validity of the act; and to subjoin a recommendation which may
hold up amendments as objects to be pursued in the constitutional
In other words, the preamble ("We the people") was a public relations
gimmick. The fine print in the articles tells a somewhat different
Again, James Madison to George Washington, Feb 3, 1778
...With all this ability [Anit-Federalists] in support of the cause, I
am pretty well convinced we shall lose the question, unless we can
take off some of the opposition by amendments. I do not mean such as
are to be made conditions of ratification, but recommendations only.
Upon this plan I flatter myself we may possibly get a majority of 12
or 15, if not more (kammen86:pg90)
Thus there was a promise of a bill of rights via amendments. The
Constitution was ratified.
The Bill of Rights started as a widespread demand that the normal
English rights and rights further won in revolution (codified in the
States' consitutions) should be explicitly enumerated in the
Constitution. Right of free speech, free press, no established
religion, no double jeopardy, and requirement of trial by jury came up
Jefferson explained his requirement for formal declaration of rights
to Madison, Mar 15, 1789
There is a remarkable difference between the characters of the
Inconveniences which attend a Declaration of rights, and those which
attend the want of it. The inconveniences of the Declaration are that
it may cramp government in its useful exertions. But the evil of this
is shortlived, moderate, and repairable. The inconveniences of the
want of a Declaration are permanent, afflicting and irrepairable; they
are in constant progression from bad to worse. (378)
Jefferson had earlier explained some specific concerns to Madison, Dec
I will now add what I do not like. First the omission of a bill of
rights providing clearly and without the aid of sophisms for freedom
of religion, freedom of the press, protection against standing armies,
restriction against monopolies, the eternal and unremitting force of
the habeas corpus laws, and trials by jury in all matters of fact
triable by the laws of the land and not by the law of Nations.
...I own I am not a friend to a very energetic government. It is
always oppressive. The late rebellion in Massachusetts has given more
alarm than I think it should have done. Calculate that one rebellion
in 13 states in the course of 11 years, is but one for each state in a
century and a half. No country should go so long without one. Nor
will any degree of power in the hands of government prevent
... If they approve the proposed Constitution in all its parts, I
shall concur in it cheerfully, in hopes that they will amend it
whenever they shall find it work wrong. I think our government will
remain virtuous for many centuries; as long as they are chiefly
agricultural; and this will be as long as there shall be vacant lands
in any part of America. When they get piled upon one another in large
cities, as in Europe, they will become corrupt as in Europe. Above
all things I hope the education of the common people will be attended
to; convinced that on their good sense we may rely with the most
security ofr the preservation of a due degree of liberty
In the summer of 1789 James Madison took the initiative to introduce
and prod Congress to consider the Bill of Rights. If you have been
paying attention, you might note that the chief lobbiest for the
Constitution was charged with preparing amendements to curtail its
power. Any modern attempt at reading nuance into the phrasing must
take this into account, along with Jefferson's admonition to declare
rights "without the aid of sophisms".
According to Kammen, "very little is known about what took place in
the state legislatures during the ratification process. By December
of 1791, however, ten of the amendments had been approved and they
went into effect. The two that did not win approval concerned
congressional regulation of the demographic basis for representation,
and a prohibition against members of Congress voting to change their
own salaries." (kammen86:p383)
In later years, one of the most contentious issues has been whether or
not the Bill of Rights (and the 2nd amendment in particular) was
intended to constitute a mechanism for rebellion against the national
government. For this we turn to the author of the Bill of Rights,
In the 46th Federalist Paper Madison argued that the States need
not fear the power of the new federal government.
First he argued the people were the source of authority for both State
and Nation, and if they wanted to favor one over the other, that was
their choice. He ignored the Anti-Federalist concerns that the
federal assumption of "supreme law" would force the people over time
to abandon states in favor of the nation.
He argued that for the nation to gather resources and attack a
state would require the people to fund their own attack, which "must
appear to every one more like the incoherent dreams of a delirious
jealousy". Again, he ignored Anti-Federalist concerns that the
federal scheme included using the army to assure the collection of
taxes -- the people could not simply refuse to pay for the resources
used to attack themselves.
Most notably, he argued that even if the national army were sent
directly against the state, the people of the state could easily
Extravagant as the supposition is, let it however be made. Let a
regular army, fully equal to the resources of the country, be formed,
and let it be entirely at the devotion of the federal government,
still it would not be going too far to say, that the State
governments, with the people on their side, would be able to repel the
danger. The highest number to which, according to the best
computation, a standing army can be carried in any country, does not
exceed one hundredth part of the whole number of souls, or one
twenty-fifth part of the whole number able to bear arms. This
proportion would not yield, in the United States, an army of more than
twenty-five or thirty thousand men. To these would be ooposed a
militia amounting to near a half million of citizens with arms in
their hands, officered by men chosen from among themselves, fighting
for their common liberties, and assisted and conducted by governments
possessing their affections and confidence. (ham2001, pg 305)
Either Madison was a liar spinning a sales pitch for consolidated
government on behalf of propertied men of influence, or he believed:
- The People are the sole source of authority for government at
any level, be it local, State, or National.
- They are expected to be armed and to use those arms to protect
themselves from armies devoted to one of those governments in
opposition to the People's decisions.
- The Bill of Rights, and specifically the 2nd amendment, was his
(Madison's) way of codifying this right.
No amount of parsing of "well regulated militia" can turn this
position into a federal or state right to so disarm the People that
they can no longer readily win a war of independence from their
Jerome Barron, C. Thomas Dienes. "Constitutional Law in a Nutshell".
Thomson West, 2005. ISBN 0-314-15880-4.
Alexander Hamilton, John Jay, and James Madison. "The Federalist: A
commentary on the Constitution of the United States". Republished by
Modern Library, 2001. ISBN 0-375-75786-4.
Michael Kammen (ed). "The Origins of the American Constitution: A
Documentary History" Penguin Books, 1986. ISBN 0-14-00.87443.
Original source material, including private letters and news articles.
Edward J. Larson, Michael P. WInship. "The Constutional Convention: A
Narratvie History from the Notes of James Madison". MOdern Library,
2005. ISBN 0-8129-7517-0.