Founding America: Documents from the Revolution to the Bill of Rights

by Jack N. Rakove (editor)

  By then, many national leaders recognized that the Articles would not give Congress the range of powers that the war had revealed it needed. Congress could only issue recommendations and requisitions to the states. It could not enact laws binding individuals to obey its decisions. And it lacked independent sources of revenue or the authority to levy taxes. The states generally did the best they could to comply with congressional decisions. But the impression inevitably took hold that a federal union that depended on the good faith of its member states was a government in name only.

  In 1781 Congress sent its first proposed amendment of the Articles to the states: a request to be able to levy an impost (duty) on selected imports (p. 194). Like the original Confederation, this amendment required the unanimous approval of the states. And like all subsequent efforts to amend the Articles, this amendment failed to surmount that hurdle. In 1783 Congress proposed a new set of amendments designed to answer its need for revenue; these also failed (p. 213). In 1784, with the country slipping into a postwar recession and British goods flooding American markets while American ships were excluded from British harbors, Congress submitted two more proposals asking the states to grant it authority over foreign commerce (p. 217). These also failed.

  By 1786 some national leaders were wondering whether the promise of the Revolution was being jeopardized by the disagreements of peacetime. Some took a long view. They thought that a population exhausted by a long and costly war could not be expected to undertake fresh projects of political reform. Others, however, worried that a union that seemed to be drifting into a condition of “imbecility” could not survive indefinitely. Britain used the non-compliance of the states with various provisions of the peace treaty to justify retaining key frontier posts at Niagara, Oswego, and Detroit. Spanish authorities in New Orleans closed the Mississippi River to American navigation, preventing frontier farmers from exporting their produce and sparking a sharp sectional dispute in Congress. West Indian ports remained closed to American merchantmen. Under these and other pressures, a single union of thirteen states might break up into two or three regional confederations, each pursuing its narrow interests.

  The road to constitutional reform began in Virginia. In January 1786 the Virginia legislature adopted a resolution inviting the other states to send commissioners to a convention where they could discuss the need to vest commercial powers in Congress. Its own delegation to this meeting included James Madison, who had spent nearly four continuous years at Congress before the term-limits provision of the Articles of Confederation sent him back to Virginia. Eight states appointed commissioners to attend this meeting at Annapolis. But when the appointed time came in September, only a dozen delegates from five states appeared—too few to proceed to business. But those present included Madison, Alexander Hamilton from New York, and John Dickinson (the principal drafter of the Confederation) from Delaware. Rather than confess defeat and adjourn, those present invited the states to appoint delegates to attend a second convention to meet in Philadelphia in May 1787. Its agenda would not be limited to commerce, but extend instead to the general woes of the Confederation.

  In retrospect, the Annapolis conference appears to have been a bold move launched by a determined and artful group of reformers. At the time, it was more akin to a desperate gamble. The Annapolis delegates could not be confident that the states would respond favorably. They had to worry that their invitation, like their meeting itself, could be interpreted as yet another insult to Congress, because the Articles of Confederation contained no provision authorizing the meeting of such conventions. And should a general convention actually assemble, they had no assurance it would be able to reach agreement. Some knowing observers, like John Jay (Congress’s secretary of foreign affairs) thought the Philadelphia meeting might prove useful for discussion only. Yet at the same time, once the idea of a general convention had been proposed, it naturally acquired its own momentum and logic. All the other expedients had failed. Madison, Hamilton, and their allies no longer believed that the cause of reform could wait indefinitely. Some Americans had begun to speculate that the revolutionary union of thirteen states could break up into smaller confederacies, and that this in turn could create fresh opportunities for the empires of Europe to meddle in American affairs.

  In the intervening months, the movement for general constitutional reform gathered strength. Virginia was the first state to act and appoint a delegation. In February 1787 the Continental Congress added its own endorsement of the convention. Eventually, twelve of the thirteen state legislatures appointed delegates. The lone holdout was Rhode Island, a determinedly “anti-federal” state since its veto had killed the impost amendment of 1781. But the fact that Rhode Island did not even send a delegation to Philadelphia had a liberating effect on the convention, persuading it to abandon the rule requiring alterations to the Confederation to be approved by all thirteen state legislatures.

  Madison’s preparations for the convention decisively shaped its agenda. Three elements of his program of reform proved critical to the deliberations that began in late May (see p. 317). First, Madison believed in empowering the national government to enact, execute, and adjudicate its own laws, without having to rely on the states to carry out its decisions. This in turn required reconstituting the Union as a normal government, with independent legislative, executive, and judicial departments. Second, the legislative power of this government should be extensive, potentially including the authority to overturn state laws. Third, as a matter of justice, Madison favored allocating seats in both houses of the new legislature on the basis of population or wealth, replacing the “one state, one vote” rule of the Confederation. All of these ideas were incorporated in the Virginia Plan that Governor Edmund Randolph presented on May 29 (p. 335).

  The delegates generally accepted Madison’s first principle but delayed judgment on the second until they had resolved the third. Disputes over the apportionment of representation among the states preoccupied the convention for seven weeks. In July it managed to strike a compromise to count slaves for purposes of representation in the lower house of Congress according to the three-fifths ratio. But compromise on the upper house proved impossible. Small states insisted on retaining the “one state, one vote” rule of the Confederation ; delegates from large states argued that this was fundamentally unjust. Finally, on July 16, after weeks of heated debate, the convention narrowly approved (five states to four, with one delegation, that of populous Massachusetts, divided), the equal state vote for the Senate.

  This decision so discouraged some large-state delegates that they briefly debated whether to proceed. No one, however, was anxious to abandon the project of reform, and the longer the meeting went on, the more inclined many delegates were to portray the decision on the Senate as being as much of a compromise as the decision on the House of Representatives. In the weeks after this vote, the delegates turned their attention to the other two parts of Madison’s program. In place of the broad grant of legislative authority envisioned by the Virginia Plan, they gradually developed a list of enumerated powers, including most notably an almost unfettered power of taxation and the right to regulate interstate and foreign commerce.

  The most difficult issue the framers faced as the convention moved toward adjournment was the design of the presidency. In the eighteenth century, executive power was still essentially monarchical power, and it was difficult to design an effective national executive on republican principles. Moreover, the framers were genuinely uncertain about the best means of selecting the president. Active debate on the presidency thus continued into the final fortnight of deliberation in September. As it continued, the authority of the novel office the framers were creating grew stronger, but the uncertainties about its political character persisted.

  The convention concluded its work on September 17,1787. Three of the forty-two delegates still in attendance refused to sign the completed Constitution, but the others fully supported its ratification. To achieve
that goal, they had also designed a new procedure. Rather than require approval by all thirteen legislatures, the convention instead proposed to submit the Constitution to special, popularly elected conventions in each state. The approval of nine, not thirteen, would be sufficient for the new government to take effect. State conventions were asked to approve the Constitution in its entirety (p. 410).

  Over the next eleven months, Americans extensively debated the Constitution—in the press, in taverns and churches, in popular meetings, and, most important, in the state conventions. The debate was wide-ranging and multifaceted. The Anti-Federalist opponents of the Constitution seized upon numerous clauses and provisions that they saw as laying a basis for eroding the residual authority of the states and the rights and liberties of citizens. Its Federalist supporters argued that the Continental Congress and the Confederation it represented were on the brink of collapse, and that a reinvigorated national government was essential to prosperity and security. Over time, they pointedly answered many of the specific charges that Anti-Federalists leveled against individual clauses.

  In many ways this debate rivaled the great discussion of resistance and independence that preoccupied the colonists in the period 1774-1776. It focused public discussion across the country and encouraged the development of alliances that crossed state lines. More important, both the debates in Philadelphia that produced the Constitution and those that led to its ratification allowed Americans to rethink the experiment they had launched in 1776 when they first began writing new constitutions. Then, the urgency of the war and inexperience had made it difficult to consider the problems of republican government in a sustained way. Now, in a time of peace, the country had a decade’s experience of self-government on which to draw. Of course, the conclusions they reached often varied. But by July 1788 eleven states had ratified the Constitution, and only two—North Carolina and Rhode Island—initially rejected it.

  Had opinion polling existed in this period, it might well have revealed that a majority of Americans either opposed the Constitution outright or deeply distrusted the power it would place in the national government. In securing victory, Federalists capitalized on the strong support they enjoyed in the nation’s major port cities and on their control of the press. By contrast, Anti-Federalists found it dif ficult to get their ideas widely disseminated. Their opposition was poorly coordinated, and it suffered as well from a lack of concerted leadership. Perhaps most important, Anti-Federalists faced the dilemma of having to defend a failing Confederation and a Congress that could barely muster a quorum against a bold vision of the American future supported not only by the nation’s greatest men, notably George Washington and Benjamin Franklin, but also some of its most effective younger leaders, like Madison and Hamilton.

  From the outset of this debate, moderate Anti-Federalists proposed various amendments to make the Constitution safer for both the states and their citizens. Many of these proposals required changes in the structure of the national government or the powers it exercised. Others supported the adoption of additional articles restating the fundamental rights of citizens. In conventions where the fate of the Constitution was uncertain—notably Massachusetts, Virginia, and New York—Federalists grudgingly agreed to recommend amendments for the first post-ratification Congress to consider. These concessions were necessary to secure the approval of these key states, but Federalists were careful to insist that ratification precede amendment, not the other way around. Similarly, some Anti-Federalists thought a second convention should be held to revise the Constitution in light of the criticisms leveled against it. But Madison, Hamilton, and other Federalist leaders thought that would lead to political chaos, because the delegations sent to such a convention would come armed with all kinds of instructions limiting the room for compromise.

  In the winter of 1789, the eleven ratifying states held elections for the new government. Everyone knew that George Washington would be the first president. More dramatic was the success Federalists enjoyed in the elections to Congress. Solid Federalist majorities would control both houses, and this seemed to deflate the expectation that the Constitution would soon be amended. In Virginia, however, Madison had publicly committed himself to the cause of amendments, not because he believed they were necessary in themselves, but to reconcile moderate Anti-Federalists to the Constitution. Once the new Congress met, he took upon himself the task of convincing Congress that the promises of 1788 had to be honored (pp. 613-627). Many members remained skeptical, but with Madison’s prodding, twelve amendments were sent to the states for ratification in September 1789. Two years passed before the ten that we now call the Bill of Rights were ratified.

  Twenty-five years had passed since the colonists first opposed the Stamp Act and invoked constitutional arguments rooted in Anglo-American history. Two revolutions had occurred since. One led to a war of national liberation that allowed the United States to assume its place among the other politically independent nations of the earth. The other took the form of a constitutional revolution that recast received ideas of government in a radically new form. For most Americans, these results have been so long accepted, and seem so familiar, that it is difficult to recall just how innovative they were at the time—and how much they depended on the contingencies of history. The colonists did not set out in 1765 or even in 1774 to establish an independent nation. Only a series of miscues by a poorly informed and miscalculating government in London made independence the inescapable consequence of colonial resistance. So, too, the whole idea of a written constitution as supreme law was not something that many Americans grasped or fully comprehended when they started writing new charters in 1776. In many ways, it was an accidental byproduct of the situation in which Britain had placed them, and it took the better part of a decade for Americans to think through the implications of what they were doing. The great constitutional debate of 1787 and 1788 provided the occasion for that reconsideration to take place. But that debate, too, came about only because individual states, like tiny Rhode Island, had thwarted every effort to amend the Articles of Confederation. Had any of those proposed amendments succeeded, the case for calling a special convention like the one that met at Philadelphia in May 1787 would have been far more difficult to make. Political change might then have taken a very different form, more modest and incremental.

  But even the greatest historical events are often shaped by accidents and circumstances. The deeper question is this: What do those who have the chance to participate in such events do when the opportunity, accidental or not, presents itself? The documents presented in this book illustrate how the Revolutionary generation seized the day. More than two centuries later, we are still wrestling with the consequences of their decisions.

  Jack N. Rakove is W. R. Coe Professor of History and American Studies and Professor of Political Science at Stanford University, where he has taught since 1980. He was educated at Haverford College, the University of Edinburgh, and Harvard, where he earned his Ph.D. in 1975. He is the author of four books on the American Revolutionary era, including The Beginnings of National Politics: An Interpretive History of the Continental Congress ( 1979), James Madison and the Creation of the American Republic ( 1990, 2001 ), and Original Meanings: Politics and Ideas in the Making of the Constitution, which received the 1997 Pulitzer Prize in History. His edited books include James Madison: Writings ( 1999), The Federalist: The Essential Essays (2003), and The Unfinished Election of 2000 (2001). He writes frequently on issues relating to the original meaning of the Constitution.

  Publisher’s Note: The editor has made no attempt to modernize the spelling or punctuation in the documents collected in this volume. When these texts were written, rules of spelling and punctuation differed from what they are today. For one, consistency was not as important: “controling” and “controlling,” “incroachments” and “encroachments,” “percieved” and “perceived” can all be found in the same document. Similarly, the word “it’s” sometimes appears as a posse
ssive where we now use “its.” Retaining these and other odd spellings and “incorrect” punctuation preserve these important American documents in their original character.

  THE IMPERIAL DISPUTE

  Thomas Hutchinson: The Address of the Governor (January 6, 1773 )

  PAGE 5

  Benjamin Franklin: Rules by Which a Great Empire May Be Reduced to a Small One (September 11, 1773)

  PAGE 12

  Thomas Jefferson: A Summary View of the Rights of British America (July 1774)

  PAGE 20

  BECAUSE THE DECLARATION OF Independence of 1776 was directed against King George III, it is often assumed that the American Revolution was a struggle against the evils of monarchy. In fact, the central dispute between Britain and its colonies was concerned with another issue entirely: Did Parliament have any authority to legislate for America, or were the colonists obliged to obey only those laws enacted by their own representative assemblies? That was the great issue that was first agitated during the Stamp Act controversy of 1765-1766 and the dispute over the Townshend duties enacted in 1767.

  After the Townshend duties were repealed, this dispute largely subsided. But it was unexpectedly revived in Massachusetts in January 1773, when Governor Thomas Hutchinson rashly opened the winter session of the legislature with a speech explaining why Americans were not exempt from the jurisdiction of Parliament. Hutchinson was responding to recent attacks on his own administration launched by the Boston Committee of Correspondence. His speech was meant to quiet the opposition. Instead, it plunged Massachusetts into still greater turmoil, as John Adams and James Otis rebutted the governor’s position in responses prepared for the two houses of the legislature.