Unruly Americans and the Origins of the Constitution

Woody Holton

Hill and Wang

EXCERPT

Thirteen North American colonies left the British Empire in 1776, but that was not really the birth date of the American colossus. History’s wealthiest and most powerful nation-state was not actually launched until the summer of 1787, at the Constitutional Convention in Philadelphia. Revolutionaries the world over have cribbed from the Declaration of Independence, but the successful ones, those who manage to overturn the social order and establish regimes of their own, find their inspiration not in the Declaration but in the Constitution. Anyone seeking the real origins of the United States must begin by asking why it was that, scarcely a decade after the free inhabitants of thirteen British colonies proclaimed each of them an autonomous state, they decided to meld those thirteen sovereignties together and launch an empire of their own.

Today politicians as well as judges profess an almost religious reverence for the Framers’ original intent. And yet what do we really know about the motives that set fifty-five of the nation’s most prominent citizens—men like George Washington, Ben Franklin, and Alexander Hamilton—on the road to Philadelphia? The Framers’ motivations remain nearly as obscure today as they were that muggy summer of 1787, when the Constitutional Convention delegates voted to maintain the strictest secrecy—and thwarted eavesdroppers by keeping the fetid chamber’s doors and windows closed and latched.

High school textbooks and popular histories of the Revolutionary War locate the origins of the Constitution in the nasty conflicts that kept threatening to tear the federal convention apart—and in the brilliant compromises that, again and again, brought the delegates back together. Should every state have the same number of representatives in Congress, or should representation be weighted in favor of the more populous ones? Solution: proportional representation in the House of Representatives and state equality in the Senate. Should the national government be allowed to abolish the African slave trade? Solution: yes, but not until 1808. In apportioning congressional representation among the states, should enslaved Americans be considered people, giving their owners bonus representatives? What about in allocating the tax burden among the states—should slaves be counted as people there? Solution to both controversies: count each slave as three-fifths of a person.

Whether the title is Miracle at Philadelphia or The Grand Convention or The Great Rehearsal or The Summer of 1787, it is almost as though the same book has been written over and over again, by different authors, every few years.

The textbooks and the popular histories give surprisingly short shrift to the Framers’ motivations. What almost all of them do say is that harsh experience had exposed the previous government, under the Articles of Confederation (1781–89), as too weak. What makes this emphasis strange is that the Framers’ own statements reveal another, more pressing motive. Early in the Constitutional Convention, James Madison urged his colleagues to tackle “the evils . . . which prevail within the States individually as well as those which affect them collectively.” The “mutability” and “injustice” of “the laws of the States” had, Madison declared shortly after leaving Philadelphia, “contributed more to that uneasiness which produced the Convention, and prepared the public mind for a general reform, than those which accrued to our national character and interest from the inadequacy of the Confederation.”

Madison’s preoccupation with what he later called the “the internal administration of the States” was by no means unique. On the eve of the convention, expressions of concern about the weakness of Congress, numerous as they were, were vastly outnumbered by complaints against the state governments. “What led to the appointment of this Convention?” Maryland delegate John Francis Mercer asked his colleagues. Was it not “the corruption & mutability of the Legislative Councils of the States”?

Once the Constitution had been sent out to the thirteen states for ratification, its supporters affirmed that some of the most lethal diseases it was designed to cure were to be found within those same states. William Plumer of New Hampshire embraced the new national government out of a conviction that “our rights & property are now the sport of ignorant unprincipled State legislators.” In the last of the Federalist Papers—the series of eighty-five newspaper essays that are widely seen as America’s premier contribution to political science—Alexander Hamilton praised the Constitution for placing salutary “restraints” on “the ambition of powerful individuals in single states.”

What was wrong with the state assemblies? Given the modern perception that the Founding Fathers had devoted their lives to the principle of government by the people, it is jarring to read their specific grievances. An essay appearing in a Connecticut newspaper in September 1786 complained that the state’s representatives paid “too great an attention to popular notions.” At least one of those Connecticut assemblymen thoroughly agreed. In May 1787, just as the federal convention assembled, he observed that even the southern states, which under British rule had been aristocratic bastions, had “run into the extremes of democracy” since declaring independence.

What these men were saying was that the American Revolution had gone too far. Their great hope was that the federal convention would find a way to put the democratic genie back in the bottle. Alexander Hamilton, the most ostentatiously conservative of the convention delegates, affirmed that many Americans—not just himself—were growing “tired of an excess of democracy.” Others identified the problem as “a headstrong democracy,” a “prevailing rage of excessive democracy,” a “republican frenzy,” “democratical tyranny,” and “democratic licentiousness.”

During the eighteenth century the primary means of land transportation—other than walking—was the horse. Writers and speakers often expressed their anxiety about the changes occurring in their fellow Americans by calling them “unruly steeds.”11 To Silas Deane it seemed that “the reins of Government” were held with too “feeble a hand.”

What had persuaded the Framers and many of the most prominent Americans of the postwar era that the Revolution had gotten out of hand? Consider the case of James Madison, “the father of the Constitution.” Madison is widely credited with writing the “Virginia Plan,” the Constitutional Convention’s first draft. Having addressed the convention more often than all but one other delegate, he went on to become one of the two principal authors of the Federalist Papers, the best-known brief for ratification. When it became clear that roughly half the electorate would refuse to accept the Constitution until it contained a bill of rights, it was Madison who drew up those first ten amendments.

In seeking to explain the desperate urgency with which Madison championed the new national government, his biographers have made much of the fact that in 1784 he asked his friend Thomas Jefferson, the official American envoy to King Louis XVI of France, to rummage through the bookstalls on the left bank of the Seine and ship him a crateful of works on Renaissance and Enlightenment history and philosophy. We can easily imagine Madison’s delight as one of his slaves pried open the chest, revealing everything from Plutarch’s Lives of the Noble Greeks and Romans to Barthélemy de Felice’s thirteen-volume Code de l’humanité, ou La legislation universelle, naturelle, civile et politique.

One reason historians have always found Madison such an appealing character is that he himself was something of a bookworm. Short and sickly, he more than once predicted that he would not live long. (As it turned out, he made it to the then-extraordinary age of eighty-five.) It is difficult to imagine him mustering sufficient stamina for a modern political campaign and easy to conceive of him as something of a monk. Yet one subject seemed to fuel Madison with a limitless energy and to draw him from the tranquillity of his study. This was his disgust with the state governments that emerged from the Revolutionary War. Madison’s desperate desire to rein in the thirteen state governments was not born in a contemplative philosophical vacuum; it reflected his own day-to-day experience as a political animal.

Madison’s political career began in earnest in 1776, when his Orange County, Virginia, neighbors sent him to the convention that wrote the state’s first constitution. Elected to the founding session of the House of Delegates a short time later, he was defeated the very next year. No matter, for his real passion was for politics on a national scale. In 1780 his former colleagues in the assembly gave him his first year-long term in Congress, and he served until the three-term limit in the Articles of Confederation forced him out, whereupon he immediately got himself reelected to the Virginia legislature.

The Articles permitted former congressmen to reclaim their seats after a three-year hiatus, and as soon as Madison’s three years were up, he was back in Congress. In the summer of 1787 this “feeble,” “sickly” man would muster the energy not only to address the Constitutional Convention on scores of occasions but to take copious notes on nearly every speech given by every other delegate, a task to which he applied himself six days a week for nearly four months.

By the spring of 1786, when Madison received Jefferson’s “literary cargo,” he no longer had any illusions about what he would find in those books. He did not need a crateful of ancient and modern philosophy and history to figure out why the young republic had lost its way, for he had already formed his opinions in the course of day-to-day political struggles. What Madison was looking for as he performed his research was persuasive historical evidence for what his own practical experience had already taught him: that the state constitutions were fatally flawed. In his view, the Founders had rescued white Americans from kingly despotism only to subject them to something worse: the tyranny of “the major number of the constituents.”

What really alarmed Madison was the specific legislation the assemblies had adopted. More than anything else, it was the desire to overturn these state laws that set him on the road to Philadelphia. Nor was he alone. Another Constitutional Convention delegate, Pennsylvania’s Gouverneur Morris, enumerated various kinds of iniquitous state laws he hoped his colleagues would guard against in the new national charter, concluding that “experience evinces the truth of this remark without having recourse to reading.”

What had the thirteen assemblies done wrong? The “evils which had more perhaps than any thing else, produced this convention,” Madison told his colleagues in Philadelphia, were the states’ countless “Interferences” with “the security of private rights, and the steady dispensation of Justice.”

All this talk about “rights” and “Justice” may seem today like glittering generalities. Actually, the transgressions that the Founding Fathers laid at the feet of the thirteen state legislatures were quite specific. Most glaringly, representatives had shown excessive indulgence to debtors and taxpayers. They had refused to force farmers to pay what they owed.

Insects, drought—even invading armies—fearsome as they all are, have rarely been what rural Americans dread most. That distinction belongs to the farmers’ creditors—not only the men and women who have lent them cash but the merchants who have supplied them with tools and other merchandise on credit and the government officials who press them to pay their back taxes. In the wake of the Revolutionary War the thirteen legislatures had ridden to the farmers’ rescue. They had allowed debtors to satisfy their creditors with property—even pine barrens and “old Horses”—instead of hard money (gold and silver). In some cases public officials had temporarily shut down the legal system that was the neglected creditor’s only recourse. Worst of all, Congress and every state assembly had funded the war effort partly by printing paper money. They emitted far more currency than the economy could bear, and the result was runaway inflation. In several states a person who owed £1,000 could get out of the debt with money that was actually worth only £1. Even after peace was declared in 1783, seven state legislatures printed additional currency.

The state governments also had debtors of their own to worry about. In most states thousands of citizens were behind on their taxes. Just like private debtors, delinquent taxpayers had received too much indulgence from state officials, the Framers believed. What may have seemed like a strictly state-level concern actually had national implications, since Congress relied upon the states for its own funding. The Articles of Confederation delegated the power of raising “Continental” funds to the thirteen state assemblies. To many Americans it seemed the states had botched this task. They knew why, too: representatives were reluctant to load their constituents down with burdensome federal taxes.

Tax relief crippled government operations. Even worse, it prevented public officials from meeting their single largest obligation, namely servicing the enormous debts they had amassed during the war. When Congress and the states failed to redeem the war bonds or even pay interest on them, Madison declared in Federalist Number 10, the owners of the securities were not the only ones who suffered. By begetting a “prevailing and increasing distrust of public engagements,” this terrible “injustice” had doomed the state and federal governments themselves.

For men like Madison, writing the Constitution was like appealing an unfavorable jury verdict to a higher court. If the thirteen state legislatures could not muster the fortitude to crack down on delinquent debtors and taxpayers, they reasoned, they would create a national government that could.

The Framers believed the only way to prevent state assemblymen from giving the taxpayer a free ride was to get them out of the business of collecting—or not collecting—“Continental” taxes. Article I, Section 8 gave the national government what it had never had before, its own power to tax. Article I, Section 10 imposed a similar crackdown on private debtors. It prohibited the states from rescuing farmers by issuing paper money or by “impairing the obligation of contracts” using any of the other devices they had discovered during the 1780s.

As a result of the protection that Section 10 afforded creditors, more people proclaimed that clause “the best in the Constitution” than any other in the document. Section 10 was even touted as “the soul of the Constitution.” Virginia governor Edmund Randolph pronounced Section 10 “a great favourite of mine.” “Nothing, in the whole Federal   Constitution, is more necessary than this very section,” a New Jersey Federalist claimed. Two prominent Pennsylvanians, attorney James Wilson and physician Benjamin Rush, independently reached the conclusion that even if the Constitution did nothing more than ban paper money, that alone would still, in Rush’s words, be “eno’ to recommend it to honest men.”

Rush was exaggerating, of course, but suppose for a moment that the Constitution had contained no other provisions besides those found in Sections 8 and 10 of Article I. The danger would have remained that the new national government would itself go easy on debtors and taxpayers—or at least look the other way when the states did so. It was largely in order to eliminate these possibilities that the Framers made the Constitution considerably less responsive to the popular will than any of the states. Only one element of the new government, the House of Representatives, would be elected directly by the people, and its initiatives could be derailed by the senators (who would not be chosen directly by the voters until 1913), the president, or the Supreme Court. Whereas most state legislators and even governors had to run for reelection every year, presidents would serve for four years and senators for six. As long as they committed no crimes, judges could remain in office for life.

Even the one element of the national government that would be elected directly by the people, the House of Representatives, would be considerably less responsive to the voters than any of the state assemblies. The reason was that every congressman would represent many more voters than state legislators did. The best way to shield the government from popular pressure, Madison believed, was to “extend the sphere” of both individual election districts and the overall polity. Expanding legislative constituencies would enhance the likelihood that representatives would be wealthy men. Larger districts would also offer congressmen a measure of protection against grassroots pressure. Finally, as Madison famously pointed out in Federalist Number 10, the new national government would embrace much greater diversity than any of the states. With a wide variety of interests and proposals jockeying for popular support, none was likely to attract a majority. Thus members of Congress would be free to make their own decisions.

A month before writing Federalist Number 10, Madison privately summarized it, employing an expression he did not dare use in that public essay: “Divide et impera, the reprobated axiom of tyranny, is under certain qualifications, the only policy, by which a republic can be administered on just principles.” “Divide et impera” is Latin for “divide and conquer.”
 
 
Excerpted from Unruly Americans and the Origin of the Constitution by Woody Holton. Copyright © 2007 by Woody Holton. Published in October 2007 by Hill and Wang, a division of Farrar, Straus and Giroux, LLC. All rights reserved.