Jefferson and Hamilton
Page 29
The history of the Constitutional Convention was one of repeated compromises between various interests. Moreover, recognizing the difficulties that they would face in securing ratification, the Nationalists did not go as far as most would have liked. Nevertheless, the consolidationists achieved what they had long sought. Preserving the broad outlines of the Virginia Plan, the Constitution provided for an omnipotent national government, including an executive who was vested with breathtaking powers. It did not vest Congress with the authority to overrule state laws, but it accomplished the same end by prohibiting the states from exercising many sovereign powers. Despite the convention’s supposed secrecy, Hamilton learned in August in New York that the proposed new government was being given “a higher tone,” and he asked Rufus King to let him know when the end was near, as he wished to sign the final document. Hamilton was in his seat on the convention’s last day, and he told his colleagues that while the Constitution could hardly be “more remote” from that which he had wished, he would sign it. It offered a “chance of good” and the best hope for preventing “anarchy and Convulsion,” he said.40
Drafting the Constitution was the easy part. Ratification was far more difficult. Two impost amendments had already failed, and they were less inflammatory to many than the Constitution. Though to make ratification easier, the Philadelphia Convention stipulated that only nine states, acting through “Conventions,” not state legislatures, need consent.
Deep divisions were soon apparent. The Constitution gained its strongest support in the urban centers and eastern counties of most states; the backcountry nearly everywhere opposed ratification. The supporters called themselves Federalists, the foes Anti-Federalists. Even the critics were divided. Some wanted to reject the Constitution and keep the Confederation, some wanted a second convention to try again to write a new constitution, some preferred to amend the Articles of Confederation, and some wished to amend the proposed Constitution. On the other hand, the Federalists were unanimous in wishing to ratify the Constitution “as it now stands.”41
The Federalists faced a tough battle, but they entered the fight with several advantages. They offered a concrete solution to an obvious problem. Washington, the most revered and trusted American, had signed the Constitution, as had numerous other leading citizens. The nation’s press, the mass medium of the day, overwhelmingly supported the Constitution. Furthermore, having waged a long fight to rid the country of the Articles, and having sat together for four months in the Constitutional Convention, the Federalists emerged from Philadelphia united, organized, and primed for the contest. They cleverly orchestrated the flow of ratifying conventions to establish a bandwagon effect. Within one hundred days of the Convention’s adjournment, five states had ratified the Constitution, and eight of the necessary nine had given their approval by early spring.
New York’s convention was one of the last to meet, but the battle in New York had commenced even before the Constitutional Convention ended. In July, Lansing and Yates left Philadelphia in disgust once the Constitution took shape. Once they filled Governor Clinton in on what the Constitution would almost certainly look like, he publicly predicted “a mischievous issue” from Philadelphia and was also probably behind a bevy of wild rumors in the press about what to expect. That was too much for Hamilton. He responded with an essay attacking the Articles and assailing the governor as one who had a “greater attachment to his own power than to the public good.”42 Clinton’s defenders countered with vitriol of their own. One essay, signed by “Inspector,” insinuated in a New York newspaper that Hamilton had “palm[ed]” himself off on Washington, whom he had served until the general realized that his aide was “a superficial, self-conceited coxcomb.”43 Another scribbler wrote of a fictitious immigrant from the Caribbean named “Tom Shit”—clearly meant to be Hamilton—who was the illegitimate offspring of a white father and a black mother. “Tom” peddled advice to a “Mrs. Columbia” about how to run her plantation, including the admonition that she appoint a superintendent for life rather than for a brief tenure.44
Hamilton responded to neither assault, although he asked Washington to clarify matters about his service as an aide. The general did so, and added that he had the “highest esteem and regard” for his former aide.45 One reason that Hamilton may not have responded to the scurrilous attacks was that he had his hands full with The Federalist Papers, a massive undertaking that he conceived and engineered. To sway the thinking of New Yorkers, Hamilton proposed the publication of dozens of thoughtful essays on nearly every aspect of the existing Articles and the proposed Constitution. Over a period of several months, eighty-five solemn and reflective newspaper essays were penned, then collected and published as a book. Hamilton persuaded Madison, a member of Congress—which now was meeting in New York City—and John Jay to write some of the essays, and they contributed twenty-nine and five, respectively. Wielding his breathtakingly quick pen, Hamilton, as “Publius,” churned out fifty-one essays in seven months, sometimes producing as many as three a week even as he tended to his legal practice. It was a Herculean effort totaling more than one hundred thousand words.
Half of Hamilton’s essays covered ground that he had plowed innumerable times during the past few years, as he expanded on the imperfections of the Articles and the troubles that America faced. As always, he spoke not of problems, but of the United States having arrived at the “last stage” of “the crisis.”46 The nation would be better off with a stronger, more energetic national government, he asserted, and he emphasized how consolidation would result in abundant military might. Never mentioning national strength for the purpose of expansion, Hamilton couched his arguments in terms of finding remedies for “a nation incapacitated by its constitution to prepare for defence.”47
Hamilton did not see the world through rose-colored glasses. A realist in touch with the darker side of human nature, he understood that commercial rivalries had spawned conflicts since the beginning of time, and that have-not nations always wanted what others had. He knew, too, that “private passions,” including “bigotry,” hatreds, “interests, hopes and fears,” sowed bellicose designs among kings and the “leading individuals” in society. In addition, the “cries of the nation,” the combative fervor of the people, sometimes “dragged their monarch into war.” The world had shrunk. Europe was not as far away as it once had been, and its colonies were even closer. A weak and divided America was at risk, and would face “dangers real, certain, and formidable.” But the America that would exist under the proposed Constitution would be secure. Its security would not come from the powerful new central governments having created “STANDING ARMIES.” Commerce was always the driving force in the creation of national wealth, and national wealth was crucial to national power. The restoration of public credit would enhance commerce. So, too, would the construction of a robust navy capable of defending “an ACTIVE COMMERCE.” A central government that regulated all commerce could retaliate against those who discriminated against the United States, leading in turn to the inevitable expansion of American trade. A sturdy and thriving commerce would produce American prosperity and power, rendering unnecessary “Extensive military establishments.” It would also permit America to “soar to … greatness.” In time, the United States would “dictate the terms of the connection between the old and the new world!”48
In his latter Federalist essays, Hamilton turned to an in-depth examination of each branch of the proposed federal government, but a theme coursed through these pieces that was quite unlike what he had said with greater candor at the Convention. For public consumption, Hamilton insisted that the Constitution had not been cobbled together so as to assure rule by one “favourite class of men.” The notion that the “wealthy and well born” would predominate at the federal level was “chimerical.” With three branches, and each selected by distinct “class[es] of electors,” no class or faction—neither farmers, financiers, merchants, nor manufacturers—could control the government.49
Hamilton appeared to hold his nose when writing about the legislative branch. Among the best things he could say about the proposed Congress was that democratic excess would be kept in check through separation of powers and the grand size of the republic. The judiciary was the least noticed of the branches, but Hamilton explicitly understood that the Nationalists had fashioned judicial review as a redoubt against “the encroachments and oppressions of the representative body.” Of course, that was the last thing he wished to accentuate. Therefore, Hamilton cannily emphasized the supposed weaknesses, not the strengths, of the judiciary. It would have “no influence over either the sword [wielded by the executive] or the purse” brandished by Congress. Therefore, judges would lack the “capacity to annoy or injure” and would “take no active resolution whatever.” As if judges who were unelected and held a lifetime appointment would never resort to judicial activism, the Supreme Court, as Hamilton grandly portrayed it, would have “neither FORCE NOR WILL.”51
Hamilton envisaged The Federalist as crucial for securing ratification in New York, but it would be a stretch to conclude that these remarkable essays played a substantive role. Nor was The Federalist a significant factor in other states, as few newspapers outside New York featured the essays, and those that did published only one or two.52 The real significance of the undertaking by Hamilton and his collaborators came years later when political scientists and historians enshrined the essays for generations of students, and judges drew on their content as the bedrock for legal judgments.
Governor Clinton may have blundered in not calling the New York assembly into special session to take up the question of the Constitution. Had he done so, the convention probably would have met early in 1788. Instead, the assembly did not meet until January 1789, at which time it scheduled the election of delegates to the ratification convention for late April and the convention’s beginning date for June 17. The Anti-Federalists scored their most lopsided win in New York, capturing forty-six seats to the Federalists’ nineteen. However, by the time the delegates gathered in bright, summery Poughkeepsie, a town of 2,500 about halfway between Manhattan and Albany, eight states had already ratified the Constitution.
New York’s convention met for five weeks in the town’s stone courthouse. Although between fifty and sixty delegates were always present, two or three on each side took on the lion’s share of speaking and debating. Hamilton, Jay, and Chancellor Robert R. Livingston, who had served with Jefferson on the committee that drafted the Declaration of Independence, took charge for the Federalists. Melancton Smith, a lawyer, merchant, and congressman, together with John Lansing were the spear carriers for the other side. The sessions were characterized by lengthy speeches, sharp debate, and tough cross-examinations. Hamilton frequently took the floor. An adversary said that his speeches were “very long” and vehement and that he did not always stay on the subject. That tendency had been pointed out by Georgia’s William Pierce, a colleague at the Constitutional Convention, who observed that Hamilton rambled when speaking. Pierce also concluded that, while eloquent, Hamilton’s voice was “too feeble” for him to be considered a great orator. Pierce was additionally put off by the New Yorker’s mien. There was an imperious streak to Hamilton’s demeanor, which he did not trouble to hide. Pierce thought Hamilton “tinctured with stiffness and sometimes with a degree of vanity that is highly disagreeable.” These criticisms notwithstanding, Pierce contradicted himself by judging Hamilton a “blazing Orator.”53 In Poughkeepsie, Hamilton not only mustered his talents but also, as in The Federalist, at times camouflaged his real thoughts. In Philadelphia, for instance, he had said that the states should be eliminated as they “are not necessary for any of the great purposes of commerce, revenue, or agriculture.” In New York’s Ratification Convention, he declared that the states “are absolutely necessary to the system.”54
Nine months into the battle over ratification, it is unlikely that the speechifying changed any minds in Poughkeepsie. Other things did, however. Only a week into the convention, some delegates may have been influenced by word of New Hampshire’s ratification, carried to Poughkeepsie by a courier whose services had been paid for by Hamilton. New Hampshire was the ninth state to approve the Constitution, which meant that ratification had been achieved. Nevertheless, far more delegates were swayed by the news of Virginia’s ratification, which arrived a week later, and by word in mid-July that Congress had set December and January dates for the selection of presidential electors and their meetings to elect the president of the United States. After a month of deliberation, the primary question that faced the delegates had become, Would New York remain in the Union? Few New Yorkers wanted to separate from the United States, and more than a few eagerly hoped that New York City might be the national capital. In fact, on July 17, Hamilton ratcheted up the pressure on the Anti-Federalists by predicting that New York City might secede from the state if the convention did not ratify the Constitution.
But while the furious floor fights and soaring oratory provided good theater, it appeared that from the beginning a majority of the Anti-Federalists were prepared to ratify the Constitution if they could secure acceptable amendments. That certainly was their focus during the final days of the convention, and on July 26 the delegates voted for ratification, a series of “recommendatory amendments,” and a convention of the states to consider the amendments to the Constitution that had been proposed by the several state ratification conventions. The vote was 30–27, the smallest margin of victory in any of the eleven conventions that ratified the Constitution.55
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Aside from among the most fervent Nationalists, no sense of crisis had existed in America when Jefferson sailed for Europe in mid-1784. He had departed thinking that the Articles of Confederation was “a wonderfully perfect instrument,” and three years later he believed that the only change it needed was an amendment enabling Congress to regulate national commerce. Jefferson did not learn of the Philadelphia Convention until it had been sitting for a month. At the same moment he became aware of the convention, Jefferson also discovered that his young friend Madison favored granting the federal government the authority to override state laws “in all cases whatsoever.” “I do not like it,” Jefferson immediately wrote to Madison. However, his initial uneasiness about the convention was placated by word that Washington and Franklin were in attendance. Their presence made the convention “an assembly of demigods,” persuading him that untoward changes would not be forthcoming.56
It was mid-November before Jefferson saw a copy of the proposed Constitution. Parts of what he read, he immediately d
eclared, “stagger all my dispositions to subscribe” to it. He told assorted correspondents that the House of Representatives was “woefully inadequate,” the “President seems a bad edition of a Polish king,” and whoever became president would inevitably be “an officer for life.” Quite the contrary of Hamilton, he predicted that the method of electing presidents was certain to make elections a carnival of “intrigue, of bribery, of force, and even of foreign interference.” As one who was convinced that “energetic government” is “always oppressive,” Jefferson thought it would have been better to have empowered Congress to enact imposts and to have “left direct taxation exclusively to the states.” Indeed, it would have been better to have simply made only slight modifications to the Articles of Confederation. The Constitution, he said, was filled with “very good articles … and very bad,” the latter having been included because too many delegates had been spooked by Shays’ Rebellion. Though he did not belabor it, Jefferson, like Hamilton, understood the judiciary’s potentially awesome power, and he did not like it. He must have been appalled that unelected justices who served for life could negate the will of the people as expressed by Congress, for he said it would have been better had Congress been given the authority to override the courts, as it could override presidential vetoes. He complained vociferously about the lack of a bill of rights, remarking that its omission was the document’s “most glaring” defect. But he vowed to stay out of the ratification fight. Not only would it probably be over before his thoughts reached America, but also, after an absence of more than three years, he was a stranger to domestic politics. The “happiest turn the thing could take,” Jefferson continued, would be for nine states to ratify the Constitution so that a new government could be put in place, but for a “respectable … opposition” to surface so that amendments would have to be added.57