History: US Constitution

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Table of Contents

• 1. The US Constitution
  • 1.1. Articles of Confederation
  • 1.2. Constitutional Convention, 1787
  • 1.3. The Debate
    • 1.3.1. People are good; trust me
    • 1.3.2. People are bad, but we can work with that
  • 1.4. Ratification
  • 1.5. Bill of Rights
• 2. References

1. The US Constitution

This essay recaps the history and politics of the forming of the US Constitution. It draws largely from the primary documents collected in kammen86.

1.1. Articles of Confederation

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 to... (kammen86:p14)

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.

1.2. Constitutional Convention, 1787

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 the People.

...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 rules committee.]

1.3. The Debate

The debate raged in newspaper articles, pamphlets, state legislatures, and presumably in taverns and on the streets.

1.3.1. People are good; trust me

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)

1.3.2. People are bad, but we can work with that

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 for. (kammen86:p329)

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 government.

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) moot.

1.4. Ratification

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 mode. (kammen86:p118)

In other words, the preamble ("We the people") was a public relations gimmick. The fine print in the articles tells a somewhat different story.

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.

1.5. Bill of Rights

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 repeatedly.

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 20, 1787

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 insurrection.

... 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

(kammen86:pp90-93)

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, James Madison,

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 defend themselves:

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:

1. The People are the sole source of authority for government at any level, be it local, State, or National.

2. 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.

3. 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 government(s).

2. References

barron2005

Jerome Barron, C. Thomas Dienes. "Constitutional Law in a Nutshell". Thomson West, 2005. ISBN 0-314-15880-4.

ham2001

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.

kammen86

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.

larson05

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.