32. “Virginia Plan,” 29 May 1787, MP 10:17; Buckley, Once and Future King, 8–9.
33. HP 4:181–95, for Hamilton’s speech on June 18. For the frustrating and confusing debates about executive power in the convention, see Bowen, Miracle at Philadelphia, 40–54; Beeman, Plain, Honest Men, 107–22; Berkin, Brilliant Solution, 116–48; and Ron Chernow, Alexander Hamilton (New York, 2004), 231.
34. Lincoln made his remarks in the Cooper Union speech on February 27, 1860. Just as he had political reasons to detect an incipient American nationalism in 1776, it was important for him to believe that the founders agreed with his view that slavery must and would end.
35. The Madison quotation is in Max Farrand, ed., The Records of the Federal Convention of 1787, 4 vols. (New Haven, Conn., 1937), 1:486–87. On the role of slavery in the convention, see Paul Finkelman, Slavery and the Founders: Race and Liberty in the Age of Jefferson (London, 1996), 1–30; and my effort in Founding Brothers: The Revolutionary Generation (New York, 2000), 81–119. For the current version of the neoabolitionist argument condemning the framers, see David Waldstreicher, Slavery’s Constitution: From Revolution to Ratification (New York, 2009).
36. Beeman, Plain, Honest Men, 176–85, and Rakove, Original Meanings, 73–74, 92–93, are especially good on the three-fifths clause. It is important to recognize that it was intended not as a moral statement about the lesser human value of slaves but as a political compromise about how to count them as part persons, part property for the purpose of representation in the House and then in the Electoral College. The political advantage it gave the southern states in presidential elections is the main reason that Jefferson was referred to as “the Negro president” after his narrow victory in the election of 1800.
37. Farrand, Records of the Federal Convention, 1:605; 2:221–23, 364–66; Ellis, Founding Brothers, 91–93.
38. Dickinson’s observation was made in notes he kept at the convention but never delivered. Quoted in James H. Hutson, Supplement to Max Farrand’s “The Records of the Federal Convention of 1787” (New Haven, Conn., 1987), 158.
39. Beeman, Plain, Honest Men, 146–62, provides the best synthesis of this extended moment.
40. GW to AH, 10 July 1787, PWCS 5:257.
41. Beeman, Plain, Honest Men, 188–97.
42. JM to TJ, 6 September 1787, MP 10:163–66.
43. GW to Lafayette, 18 September 1787, PWCS 5:334; in a similar vein, GW to Henry Knox, 19 August 1787, PWCS 5:297.
44. Buckley, Once and Future King, 32–45, also makes a case for Morris, as does Richard Brookhiser in Gentleman Revolutionary: Gouverneur Morris, the Rake Who Wrote the Constitution (New York, 2003), 78–93.
45. JM to Jared Sparks, 8 April 1831, in Farrand, Records of the Federal Convention, 3:499. For the fullest discussion of Morris’s editorial changes, see Brookhiser, Gentleman Revolutionary, 90–93.
46. Franklin’s speech is reproduced in Edmund S. Morgan, ed., Not Your Usual Founding Father: Selected Readings from Benjamin Franklin (New Haven, Conn., 2006), 286–87.
CHAPTER 6: THE GREAT DEBATE
1. JM in Congress, 6 April 1796, MP 16:295–96.
2. The authoritative scholarly study of the ratification process is Pauline Maier, Ratification: The People Debate the Constitution, 1787–88 (New York, 2010). The documents for each state ratifying convention are published in DHRC, a massive editorial project nearing completion.
3. The fullest account of the referendum on independence in the spring and summer of 1776 is Pauline Maier, American Scripture: Making the Declaration of Independence (New York, 1997), 217–34. I offer a more succinct version of the story in American Creation: Triumphs and Tragedies at the Founding of the Republic (New York, 2007), 49–51.
4. This is a huge claim, I realize, but the only serious alternative is the Lincoln-Douglas debates in 1858, and they could never have happened if the debates over ratification had gone the other way.
5. The decision of the Virginia legislature is described in GW to JM, 5 November 1787, MP 10:242–43.
6. GW to JM, 10 October 1787, MP 10:189.
7. Maier, Ratification, 25–49.
8. JM to Edmund Pendleton, 28 October 1787, MP 10:223–24.
9. Maier, Ratification, 74–75; Jeffrey L. Pasley, “The Tyranny of Printers”: Newspaper Politics in the Early American Republic (Charlottesville, Va., 2001), 33–43.
10. One delegate to the Pennsylvania convention, Robert Whitehill, claimed that only one in twenty residents in the western counties of the state had even read the Constitution. DHRC 2:65–72.
11. GW to Lafayette, 18 September 1787, and GW to Benjamin Harrison, 24 September 1787, PWCS 5:334, 339.
12. See the letters, PWCS 5:297, 365–66, 366–68, 368–69; 6:95–97; JM to GW, 18 October 1787, MP 10:196–97.
13. GW to Charles Carter, 7 December 1787, PWCS 5:492.
14. Remarks on Signing the Constitution, 17 September 1787, HP 4:253.
15. To the Daily Advertiser, 20 July 1787, HP 4:229–32.
16. AH to GW, 11–15 October 1787, and GW to AH, 18 October 1787, HP 4:280–81, 284–85; Ron Chernow, Alexander Hamilton (New York, 2004), 245.
17. “Conjectures About the New Constitution,” 17–30 September 1787, HP 4:275–76.
18. JJ to JA, 16 October 1787, JP 3.
19. JJ to GW, 3 February 1787, JP 3.
20. JM to TJ, 6 September 1787, MP 10:163–64.
21. TJ to JM, 20 June 1878, MP 10:64.
22. JM to William Short, 24 October 1787, MP 10:220–22.
23. JM to Edmund Randolph, 21 October 1787, MP 10:199–200.
24. The fullest state-by-state assessment is in JM to Ambrose Madison, 8 November 1787, MP 10:243–44.
25. JM to Archibald Stuart, 30 October 1787, MP 10:232.
26. JM to Ambrose Madison, 30 September 1787, MP 10:179–80.
27. JM to TJ, 24 October 1787, MP 10:208.
28. Madison is a much-studied thinker, and for this moment in his career three books strike me as seminal: Marvin Meyers, The Mind of the Founder: Sources of the Political Thought of James Madison (Hanover, N.H., 1981); Lance Banning, The Sacred Fire of Liberty: James Madison and the Founding Federal Republic (Ithaca, N.Y., 1995); and Drew R. McCoy, The Last of the Fathers: James Madison and the Republican Legacy (Cambridge, U.K., 1989). My interpretation here tends to deviate from the mainstream because his most distinguished biographers see him primarily as a political philosopher. I see him as a political strategist, whose ideas were developed in specific contexts, usually in response to arguments he sought to counter and, in this case, political developments that he had not anticipated. His greatest gift was intellectual agility, not consistency.
29. Maier, Ratification, 155–211; Hancock’s speech on recommended amendments is in Bernard Bailyn, ed., The Debate on the Constitution, 2 vols. (New York, 1993), 1:941–42. The proposed amendments are best discussed in Saul Cornell, The Other Founders: Anti-Federalism and the Dissenting Tradition in America, 1788–1828 (Chapel Hill, N.C., 1999), 30–31. I embrace Cornell’s estimate of 124 proposed amendments by the state ratifying conventions. There were actually more than 200 amendments, but many were duplications.
30. My interpretation of the Antifederalists—again, the term is misrepresentative—aligns itself with the landmark essay by Cecelia Kenyon, “Men of Little Faith: The Anti-Federalists on the Nature of Representative Government,” WMQ 12 (January 1953): 3–43; a somewhat updated version of the same interpretation is in James H. Hutson, “Country, Court, and Constitution: Antifederalism and the Historians,” WMQ 35 (October 1981): 337–68. See also Herbert J. Storing, What the Anti-Federalists Were For (Chicago, 1981). The central impulse of the Antifederalists was not democracy but an antigovernment ethos that had proved so effective opposing British policy in the prewar years. It was an inherently oppositional ideology with libertarian implications that distrusted any and all forms of government power. In that sense, it was inherently incompatible with a nation-size republic
. It looked backward rather than forward, though eventually found its fullest expression in the government under the Confederacy in 1861–65. The Tea Party movement that emerged in the twenty-first century is a modern-day echo of the Antifederalist mentality. For a characteristically shrewd assessment of the Federalist Papers, see Bernard Bailyn, “The Federalist Papers,” in To Begin the World Anew: The Genius and Ambiguities of the American Founders (New York, 2003), 100–125.
31. Chernow, Hamilton, 247; Elizabeth Fleet, ed., “Madison’s Detached Memoranda,” WMQ 3 (1946): 563.
32. Editorial note, MP 10:259–60; Editorial note, HP 4:287–301; Elaine Crane, “Publius in the Provinces: Where Was the Federalist Reprinted Outside New York City?,” WMQ 21 (1964): 589–92; Larry D. Kramer, “Madison’s Audience,” Harvard Law Review 112 (January 1999): 611–99. The two-volume published version of the Federalist Papers became available in time to influence the debates in Virginia and New York, but chiefly, and ironically, as a target that focused the fire of the opponents to ratification.
33. GW to AH, 28 August 1788, PWCS 6:480–81.
34. MP 10:263–70, 477.
35. Warren Hope, ed., The Letters of Centinel (Ardmore, Pa., 1998), 69–70.
36. GW to Thomas Johnson, 20 April 1788, and GW to James McHenry, 27 April 1788, PWCS 6:217–18, 235–36. Washington concluded that Maryland’s ratification, followed shortly thereafter by South Carolina’s, “created a moral certainty of adoption…which will make all except desperate men look before they leap into the dark consequences of rejection.” As the Virginia convention gathered in Richmond, he was confident that “Virginia will make the ninth column in the federal Temple.” GW to JM, 8 June 1788, and GW to Jonathan Trumbull, Jr., 12 June 1788, PWCS 6:321, 325.
37. JM to GW, 13 and 18 June 1788, PWCS 6:329, 339.
38. Marshall quoted in Jean Edward Smith, John Marshall: Definer of a Nation (New York, 1996), 118.
39. JM to GW, 18 March 1786, PWCS 5:94–95. On Henry as an orator, see Henry Mayer, Son of Thunder: Patrick Henry and the American Republic (New York, 1986).
40. TJ to JM, 8 December 1784, RL 1:353–54.
41. Smith, John Marshall, 123.
42. DHRC 9:952–53.
43. DHRC 9:959–61.
44. DHRC 9:1028–31.
45. DHRC 9:995–96.
46. DHRC 9:951.
47. DHRC 9:959.
48. DHRC 9:995–96.
49. DHRC 9:1506–15. Madison predicted that Henry would do anything in his power to throw sand into the gears of the new federal government, arguing that Virginia’s representative “will commit suicide on his own authority.” One of Henry’s first acts was to block Madison’s election to the Senate.
50. See Maier, Ratification, 345–400, for the best synthesis of the twists and turns at the New York convention. See also Linda Grant DePauw, The Eleventh Pillar: New York State and the Federal Constitution (Ithaca, N.Y., 1966). Governor Clinton and his followers made a point of rejecting the view that Virginia’s ratification left New York with no realistic options. The new Constitution was going into effect, however, and as an editorial in the New York Packet put it, “Now, those who vote against the New Constitution vote themselves out of the New Federal Union.” New York Packet, 15 July 1788.
51. “An Address to the People of New York on the Subject of the Constitution,” 12 April 1788, JP 3. On Jay’s diplomatic style of debate, see Maier, Ratification, 399.
52. Editorial Note, Jay at the New York Ratifying Convention, JP 3.
53. JM to GW, 21 July 1788, PWCS 6:392–93; JM to AH, 20 July 1788, HP 5:184–85.
54. The circular letter is in DHRC 23:236.
55. GW to JM, 23 September 1788, MP 11:262; GW to JM, 11 August 1788, PWCS 6:437–39.
56. JJ to GW, 21 September 1788, PWCS 6:527–28.
57. GW to Willliam Tudor, 22 August 1788, and GW to John Armstrong, 25 April 1788, PWCS 465, 226.
CHAPTER 7: FINAL PIECES
1. Pauline Maier, Ratification: The People Debate the Constitution, 1787–88 (New York, 2010), 421–32, for the best synthesis of the post-ratification efforts by the opposition in Virginia and New York. For Madison’s assessment of the political backlash from Henry and Clinton, see JM to GW, 17 August, 24 August 1788, PWCS 6:454–55, 468–71.
2. AH to JM, 23 November 1788, AH to Samuel Jones, 21 January 1789, AH to Pierre Van Cortlandt, 16 February 1789, and AH to the Electors of the State of New York, 7 April 1789, HP 5:235–36, 244–46, 254–55, 317–29; H.R. letters printed in the Daily Advertiser, HP 5:262–331.
3. GW to John Armstrong, 25 April 1788, PWCS 6:224.
4. GW to Charles Pettit, 16 August 1788, PWCS 6:448.
5. AH to GW, 13 August 1788, PWCS 6:444.
6. GW to AH, 3 October 1788, HP 5:223.
7. AH to GW, 30 September 1788, HP 5:221–22.
8. Henry Lee to GW, 13 September 1788, PWCS 6:510–12.
9. GW to Lafayette, 28 April 1788, PWCS 6:245.
10. GW to Henry Knox, 1 April 1789, PWR 2:20.
11. AH to James Wilson, 25 January 1789, HP 5:247–49.
12. My interpretation of Madison’s mentality and motives at this propitious moment is based primarily on the correspondence in MP. Helpful secondary accounts include: Richard Labinski, James Madison and the Struggle for the Bill of Rights (Oxford and New York, 2006); Jack N. Rakove, “James Madison and the Bill of Rights: A Broader Context,” Presidential Studies Quarterly 22 (1992): 667–77; and Kenneth Bowling, “ ‘A Barrel to the Whale’: The Founding Fathers and the Adoption of the Bill of Rights,” JER 8 (1988): 223–51. Maier, Ratification, 443–68, provides a comprehensive synthesis.
13. The most accessible version of the circular letter is in RL 1:548–49.
14. JM to Thomas Mann Randolph, 13 January 1789, MP 11:416. See also JM to Tench Coxe, 24 June 1789, MP 12:257.
15. RL 1:590–611, which is the editorial essay that introduces the Jefferson-Madison correspondence in 1788–89, written by James Morton Smith. In my judgment, Smith’s treatment of the issues at stake sets the standard for all scholars attempting to recover Madison’s “original intentions” in drafting the Bill of Rights. If all of Smith’s introductory essays in this three-volume edition were published as a separate book, it would constitute a major new biography of Madison.
16. TJ to JM, 6 February 1788, RL 1:529–30.
17. TJ to Francis Hopkinson, 13 March 1789, JP 12:557–58. Jefferson’s draft of a “Charter of Rights” for France is in JP 15:167–68. For Jefferson’s radical belief in generational sovereignty, see Herbert E. Sloan, Principle and Interest: Thomas Jefferson and the Problem of Debt (New York, 1995), which is a more elegant analysis of this utopian strain in Jefferson’s thought than its title suggests.
18. I have discussed this utopian dimension of Jefferson’s thinking at greater length in American Creation: Triumphs and Tragedies at the Founding of the Republic (New York, 2007), 100–105.
19. JM to TJ, 17 October 1788, RL 1:564.
20. TJ to JM, 18 November 1788, 15 March 1789, RL 1:567, 587.
21. JM to George Eve, 2 January 1789, MP 11:404–5.
22. JM to TJ, 29 March 1789, RL 1:609.
23. Address to the House of Representatives by the President, 5 May 1789, MP 12:132–34; Address of the President to Congress, 30 April 1789, MP 12:121–24.
24. The scale of Madison’s editorial effort can only be appreciated by recovering all 124 amendments proposed by the state ratifying conventions. The best place to find them is Edward Dumbauld’s The Bill of Rights and What It Means Today (Norman, Okla., 1957), 160–65.
25. Helen E. Veit et al., eds., Creating the Bill of Rights: A Documentary Record from the First Federal Congress (Baltimore, 1991), 263, 278.
26. Amendments to the Constitution, 13 August 1789, MP 12:333.
27. JM to Alexander White, 24 August 1789, MP 12:352–53; Maier, Ratification, 453.
28. For this classical view of the Bill of Rights, see Robert Rutland, The
Birth of the Bill of Rights (Chapel Hill, N.C., 1955).
29. Veit, Creating the Bill of Rights, 64.
30. Amendments to the Constitution, 8 June 1789, MP 12:196–97.
31. MP 12:198–99.
32. MP 12:200–203.
33. MP 12:208.
34. Amendments to the Constitution, 17 August 1789, ibid., 344. See also Patrick T. Conley and John P. Kaminski, eds., The Bill of Rights and the States (Madison, Wis., 1992).
35. MP 12:207. See also Rosemary Zagarri, The Politics of Size: Representation in the United States, 1776–1850 (Ithaca, N.Y., 1987).
36. MP 12:201.
37. The ongoing debate over the right to bear arms in our own time is obviously a deeply divisive issue that generates much shouting, foot-stomping, and even death threats. My point here is that for judicial devotees of the “original intent” doctrine, Madison’s motives in 1789 are clear beyond any reasonable doubt. To wit, the right to bear arms derived from the need to make state militias the core pillar of national defense. In order to avoid reaching that conclusion, the majority opinion in Heller, written by Justice Antonin Scalia, is an elegant example of legalistic legerdemain masquerading as erudition. Madison is rolling over in his grave. For the history of the Second Amendment, see Michael Waldman, The Second Amendment: A Biography (New York, 2014), and Saul Cornell and Nathan Kokushanich, eds., The Second Amendment on Trial: Critical Essays on District of Columbia v. Heller (Amherst, Mass., 2013).
38. Veit, Creating the Bill of Rights, 175.
39. Ibid., 199.
40. JM to Richard Peters, 19 August 1789, MP 12:346–48.
41. Several historians have located the birth of American nationalism in the second decade of the nineteenth century. See Curtis Nettles, The Emergence of a National Economy, 1775–1815 (New York, 1962); Steven Watts, The Republic Reform: War and the Making of Liberal America, 1790–1820 (Baltimore, 1987); David Waldstreicher, In the Midst of Perpetual Fetes: The Making of American Nationalism, 1776–1820 (Chapel Hill, N.C., 1997), which emphasizes the role of public rituals in creating a national ethos.
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