These Truths

by Jill Lepore

  Anti-Federalists, including former delegates to the convention, also contested the three-fifths clause. Luther Martin called it a “solemn mockery of and insult to God” and said that the clause “involved the absurdity of increasing the power of a state . . . in proportion as that state violated the rights of freedom.”56 Madison defended this decision, insisting that there was no other way to count slaves except as both persons and property, since this “is the character bestowed on them by the laws under which they live.”57

  Ratification proved to be a nail-biter. By January 9, 1788, five states—Connecticut, Delaware, Georgia, New Jersey, and Pennsylvania—had ratified. The debate that began in mid-January at the convention in Massachusetts grew heated. “You Perceive we have some quarilsome spirits against the constitution,” Jane Franklin reported to her brother from Massachusetts. “But,” she reassured him, “it does not appear to be those of Superior Judgment.”58 After Federalists promised they’d propose a bill of rights at the first session of the new Congress, Massachusetts, in a squeaker, voted in favor of ratification by a vote 187 to 168 in February. In March, Rhode Island, which had refused to send any delegates to the constitutional convention, refused to hold a ratifying convention. Maryland ratified in April, South Carolina in May, New Hampshire in June. That made nine states in favor, meeting the minimum required.

  Practically, though, the approval of Virginia and New York was essential. At Virginia’s convention, Patrick Henry argued that the Constitution was an assault on the sovereignty of the states: “Have they made a proposal of a compact between states? If they had, this would be a confederation: It is otherwise most clearly a consolidated government. The question turns, sir, on that poor little thing—the expression, We, the people, instead of the states, of America.”59 But Federalists eventually prevailed, by a vote of 89 to 79, on June 25, 1788.

  On the Fourth of July, James Wilson, with full-throated passion, spoke at a parade in Philadelphia, while a ratifying convention met in New York. “You have heard of Sparta, of Athens, and of Rome; you have heard of their admired constitutions, and of their high-prized freedom,” he told his audience. Then he asked a series of rhetorical questions. But were their constitutions written? The crowd called back, “No!” Were they written by the people? No! Were they submitted to the people for ratification? No! “Were they to stand or fall by the people’s approving or rejecting vote?” No, again.

  Three weeks later, New York ratified by the smallest of margins: 30 to 27.60 By three votes, the Constitution became law. And yet the political battle raged on. The day after the vote, Thomas Greenleaf, the only Anti-Federalist printer in Federalist-dominated New York City, arrived home in the evening to find that a band of Federalists had fired musket balls into his house. He loaded two pistols, put them in a chest near his bed, and went to sleep, only to be awakened in the middle of the night by men shouting outside his house. When a mob began breaking down his door, smashing windows, and throwing stones, Greenleaf shot into the crowd from a second-story window, tried to reload, then decided to run. After he and his wife and children made a narrow escape out the back door, the mob swarmed his house and office and destroyed his type and printing press, a bad omen for a nation founded on the freedom of speech.61

  Ratification had been an agony. It might very easily have gone another way. An unruly new republic had begun.

  III.

  THE FIRST CONGRESS convened on March 4, 1789, in New York’s city hall, where the German printer John Peter Zenger had been tried in 1735, where a black man named Caesar had met his fate in 1741, and where the Stamp Act Congress had deliberated in 1765, each another trial for freedom. Renamed Federal Hall, the building was refitted to its new purpose, enlarged, improved, and made majestic, with Tuscan columns and Doric pillars, according to a plan designed by the French architect Pierre Charles l’Enfant, who, when the federal government moved to the banks of the Potomac, would one day design the nation’s capital. In L’Enfant’s hands, city hall grew to three times its original size, its aesthetic founding a new architectural style: Federal. Above a grand new balcony, facing Wall Street, a giant eagle, carrying thirteen arrows, appeared to burst out of the clouds. A new cupola boasted half-circle windows, eyes to the sky.62

  George Washington was inaugurated on the balcony of Federal Hall, formerly New York’s city hall. For all its pomp, Federal Hall was a monument to republicanism: the building opened its doors to the people. The Constitution requires that “Each House shall keep a Journal of its Proceedings, and from time to time publish the same.” The Congressional Record was published, because it had to be, but Congress decided to make its proceedings public in an altogether different way. Pennsylvania’s 1776 Constitution had decreed that “the doors of the house . . . shall be and remain open for the admission of all persons who behave decently,” and the House of Representatives followed this precedent, opening its doors from its first session. The representatives’ hall, arched and octagonal, was two stories tall, with large galleries for spectators.63

  The new president wasn’t inaugurated until April 30; the delay was due to the time it took to conduct the first presidential election. Washington had run unopposed, but there remained the matter of counting the votes. Exactly how the new president was to assume his office was not immediately clear. The Constitution calls only for a president to take an oath, swearing to “preserve, protect and defend the Constitution of the United States.”

  Hours before Washington’s inauguration was scheduled to take place, a special congressional committee decided that it might be fitting for the president to rest his hand on a Bible while taking the oath of office. Unfortunately, no one in Federal Hall had a copy of the Bible on hand. There followed a mad dash to find one. At midday, above a crowd assembled on Wall Street, Washington took his oath standing on a balcony, below that eagle bursting from the clouds.

  He pledged, and then he kissed his borrowed Bible. After Washington was sworn in, he entered Federal Hall and delivered a speech that had been written by Alexander Hamilton. The Constitution does not call for an inaugural address. But Washington had a sense of occasion. He began by addressing his remarks to “Fellow-Citizens of the Senate and the House of Representatives.” He was speaking to Congress, in that arched, octagonal room, but he invoked the people. “The preservation of the sacred fire of liberty, and the destiny of the Republican model of Government,” Washington said, are “staked on the experiment entrusted to the hands of the American people.”64

  Nearly everything Washington did set a precedent. What would have happened if he had decided, before taking that oath of office, to emancipate his slaves? He’d grown disillusioned with slavery; his own slaves, and the greater number of slaves owned by his wife, were, to him, a moral burden, and he understood very well that for all the wealth generated by forced, unpaid labor, the institution of slavery was a moral burden to the nation. There is some evidence—slight though it is—that Washington drafted a statement announcing that he intended to emancipate his slaves before assuming the presidency. (Or maybe that statement, like Washington’s inaugural address, had been written by Hamilton, a member of New York’s Manumission Society.) This, too, Washington understood, would have established a precedent: every president after him would have had to emancipate his slaves. And yet he would not, could not, do it.65 Few of Washington’s decisions would have such lasting and terrible consequences as this one failure to act.

  THE CONSTITUTION DOESN’T say much about the duties of the president. “The President shall be Commander in Chief of the Army and Navy of the United States,” according to Article II, Section 2, and “he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices.” But the Constitution doesn’t call for a cabinet. Nevertheless, the first Congress established several departments, to which Washington appointed secretaries: the Department of State, headed by Jefferson; the Department of the Treas
ury, headed by Hamilton, and the Department of War, headed by Henry Knox.

  Congress’s most pressing order of business was drafting a bill of rights. Madison, having prepared a bill “to make the Constitution better in the opinion of those who are opposed to it,” presented a list of twelve amendments to the House on June 8. He had wanted the amendments written into the constitution, each in its proper place, but instead they were added at the end.66

  While Madison’s proposed amendments were debated and revised, Congress tackled the question of the national judiciary. Article III, Section 1, decrees that “The judicial Power of the United States, shall be vested in one supreme Court,” but the details were left to Congress. On September 24, 1789, Washington signed the Judiciary Act, which established the number of justices, six; defined the authority of the court, which was narrow; and created the office of attorney general, to which Washington appointed Edmund Randolph.

  Under the Constitution, the power of the Supreme Court is quite limited. The executive branch holds the sword, Hamilton had written in Federalist 78, and the legislative branch the purse. “The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever.” All judges can do is judge. “The judiciary is beyond comparison the weakest of the three departments of powers,” Hamilton concluded, citing, in a footnote, Montesquieu: “Of the three powers above mentioned, the judiciary is next to nothing.”67

  The Supreme Court had no rooms in Federal Hall. Instead, it met—when it met—in a drafty room on the second floor of an old stone building called the Merchants’ Exchange, at the corner of Broad and Water Streets. The ground floor, an arcade, served as a stock exchange. Lectures and concerts were held upstairs. On the first day the court was called to session, only three justices showed up, and so, lacking a quorum, court was adjourned.68

  The day after Washington signed the Judiciary Act, Congress sent Madison’s twelve constitutional amendments to the states for ratification. Meanwhile, Congress took up other business, and was immediately confronted with the question of slavery. On February 11, 1790, a group of Quakers presented two petitions, one from Philadelphia and one from New York, urging Congress to end the importation of slaves and to gradually emancipate those already held. In the octagonal room in Federal Hall, after representatives from Georgia and South Carolina rose to condemn the petitions, Madison moved to put the petitions to a committee. The next day, Congress received a petition from the Pennsylvania Abolition Society urging Congress to “take such measures in their wisdom, as the powers with which they are invested will authorize, for promoting the abolition of slavery, and discouraging every species of traffic in slaves”; its signatories included Benjamin Franklin.

  After several hours of debate—before spectators in the galleries—Congress voted 43 to 11 to refer all three petitions to a committee (seven of the eleven “no” votes came from Georgia and South Carolina). On March 8, the day scheduled for the committee report, southern delegates succeeded in delaying it. James Jackson of Georgia gave a two-hour speech, in which he said that the Constitution was a “sacred compact,” and William Loughton Smith of South Carolina spoke for another two hours, opposing emancipation by insisting that if blacks were free they would marry whites, “the white race would be extinct, and the American people would be all of the mulatto breed.”69

  Not so many miles away from New York, men, women, and children who had once been owned by some of the people who were engaged in this debate were engaged in a debate of their own. Harry Washington, who had left New York for Halifax in 1783, wondered whether he ought to move his family to a new colony, in West Africa. The first expedition to Sierra Leone had sailed from London in May of 1787, just as the delegates to the constitutional convention were straggling into Philadelphia. As some four hundred emigrants prepared to sail, the African-born writer and former slave Quobna Ottobah Cugoano had warned them that “they had better swim to shore, if they can, to preserve their lives and liberties in Britain, than to hazard themselves at sea . . . and the peril of settling at Sierra Leone.” They sailed all the same. Across the Atlantic, they’d founded a capital and elected as their governor a runaway slave and Revolutionary War veteran from Philadelphia named Richard Weaver. Five months later, plagued by disease and famine, 122 of the settlers had died. Even worse, and exactly as Cugoano had predicted, some were kidnapped and sold into slavery all over again. But for some, Sierra Leone was home. Frank Peters, kidnapped as a child, had spent most of his life as a field slave in South Carolina until he joined the British army in 1779. Two weeks after he arrived in Sierra Leone, at the age of twenty-nine, an old woman found him, held him, and pressed him close: she was his mother.70

  Harry Washington decided, in the end, to join nearly twelve hundred black refugees from the United States who boarded fifteen ships in Halifax Harbor, bound for the west coast of Africa, along with black preachers Moses Wilkinson and David George. Before the convoy left the harbor, each family was handed a certificate “indicating the plot of land ‘free of expence’ they were to be given ‘upon arrival in Africa.’” But when Washington reached Sierra Leone, he found that the colony’s new capital, Free-town, was plagued by disease and weighed down by a poverty enforced by exorbitant rents. “We wance did call it Free Town,” Wilkinson complained bitterly, but “we have a reason to call it a town of slavery.”71

  In New York, a slave town, the congressional committee charged with responding to the antislavery petitions finally presented its report. The Constitution forbade Congress from outlawing the slave trade until the year 1808 but provided for taxing imported goods, the committee reported, and that authority included the power to tax the slave trade heavily enough to discourage and even to end it. Madison, quiet of voice, stood to speak. He urged the committee to eliminate this allowance on revising the report. It had been a tiny window, the smallest of openings. Madison slammed it shut. The final report concluded, “Congress have no authority to interfere in the emancipation of slaves, or in the treatment of them within any of the States; it remaining with the several States alone to provide any regulations therein, which humanity and true policy may require.” A resolution to accept the report passed 29 to 25, along sectional lines. It effectively tabled the question of slavery until 1808.72

  Franklin, from his deathbed, attempted to protest. Earlier, he’d tried to reassure his sister, “As to the Pain I suffer, about which you make yourself so unhappy, it is, when compar’d with the long life I have enjoy’d of Health and Ease, but a Trifle.”73 But this was the merest dissembling. He was in agony. Writing in the Pennsylvania Gazette, he offered an attack on slavery, signing his essay “Historicus”—the voice of history.74

  He died two weeks later. He was the only man to have signed the Declaration of Independence, the Treaty of Paris, and the Constitution. His last public act was to urge abolition. Congress would not hear of it.

  THE DIVIDE OVER slavery, which had nearly prevented the forming of the Union, would eventually split the nation in two. There were other fractures, too, deep and lasting. The divide between Federalists and Anti-Federalists didn’t end with the ratification of the Constitution. Nor did it end with the ratification of the Bill of Rights. On December 15, 1791, ten of the twelve amendments drafted by Madison were approved by the necessary three-quarters of the states; these became the Bill of Rights. They would become the subject of ceaseless contention.

  The Bill of Rights is a list of the powers Congress does not have. The First Amendment reads, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” Its tenets derive from earlier texts, including Madison’s 1785 “Memorial Remonstrance against Religious Assessments” (“The Religion then of every man must be left to t
he conviction and conscience of every man”), Jefferson’s 1786 Statute for Religious Freedom (“our civil rights have no dependence on our religious opinions any more than our opinions in physics or geometry”), and Article VI of the Constitution (“no religious test shall ever be required as a qualification to any office or public trust under the United States”).75

  Yet the rights established in the Bill of Rights were also extraordinary. Nearly every English colony in North America had been settled with an established religion; Connecticut’s 1639 charter explained that the whole purpose of government was “to mayntayne and presearve the liberty and purity of the gospel of our Lord Jesus.” In the century and a half between the Connecticut charter and the 1787 meeting of the constitutional convention lies an entire revolution—not just a political revolution but also a religious revolution. So far from establishing a religion, the Constitution doesn’t even mention “God,” except in naming the date (“the year of our Lord . . .”). At a time when all but two states required religious tests for office, the Constitution prohibited them. At a time when all but three states still had an official religion, the Bill of Rights forbade the federal government from establishing one. Most Americans believed, with Madison, that religion can only thrive if it is no part of government, and that a free government can only thrive if it is no part of religion.76