Penguin Guide to the United States Constitution: A Fully Annotated Declaration of Independence

by Richard Beeman

  In the meantime, General George Washington, commander in chief of the Continental army, as well as the civilian leaders in the Continental Congress, were left to fight a war and attempt to hold an informal union of the states together without an officially sanctioned frame of government. The task of fighting and winning a war against Great Britain would have been daunting in any circumstance, but armed with the power only to “request” contributions of men, matériel, and money from the individual states, General Washington’s job was made even more difficult. The war effort during those early years was as successful as it was in part because of Washington’s leadership, but also—and equally important—because of the bravery and self-sacrifice of those among his men who, even when the terms of their enlistments were up, stayed to fight on. It benefited as well from the lack of decisiveness of the British army—an army hampered both by a long line of supply, stretching across the Atlantic Ocean, and a hesitant ministry back at home, which on the one hand wished to put down the colonial revolt but on the other was reluctant to make the sort of full-fledged military and naval commitment that would have brought the rebellious colonies to heel.

  America’s commitment to liberty and independence was accompanied by a surge of utopian idealism in 1776, with the state governments enthusiastically pledging to contribute to the common cause. But as the optimism of 1776 confronted the reality of a bloody and protracted war, officials in the Continental government found it increasingly difficult to persuade the states to live up to their obligations.

  America’s eventual victory over the British, who surrendered at Yorktown, Virginia, in October 1781, seemed nearly miraculous; it owed as much to timely French military aid and English indecision as to America’s military prowess. And even after victory had been achieved and the American union under the Articles of Confederation received official sanction from all thirteen states, the task of holding that fragile union of states together proved formidable. It was a task made more difficult still by the fact that the new Continental government had accumulated a substantial debt both to private individuals and foreign nations in the course of the Revolutionary War. Once the war was over and peace had returned, the state governments were even less interested in contributing their fair share to help the Continental government meet its obligations. By 1785 and 1786, with France and Holland clamoring for repayment of the monies owed them, the financial condition of the young American republic seemed even more perilous.

  Nor was the weakness of the central government the only problem. Many of the men who made the journey to Philadelphia in 1787 also believed that the revolutionary state constitutions were seriously defective. Those state constitutions were noble experiments; indeed they were the world’s first written constitutions. But they seemed to many to have given the popularly elected legislatures of the states excessive power at the expense of the executive branch of government. Many of the members of those state legislatures had pursued policies which, though popular in the eyes of the people who elected them, served to undermine the financial stability of the young republic and, in a few cases, the public order as well.

  Fears about the weakness and irresponsibility of the state governments were given frightening expression when, in the late fall of 1786, a discontented group of western Massachusetts farmers, including one Daniel Shays—after whom the uprising came to be named—took up arms in rebellion against the policies of the Massachusetts state government. Although Shays’ Rebellion was quickly put down, men like Virginia’s James Madison and George Washington began to worry that the very fabric of government and society was beginning to tear, and as they watched a somnolent Continental Congress that seemed powerless to accomplish much of anything, that worry turned to despair. General Washington, upon receiving a letter from his friend and neighbor Henry Lee asking him to use his “influence” to set things in the country right, exploded in frustration: “You talk, my good Sir, of employing influence… . Influence is no government… . Let the reins of government be braced and then held with a steady hand, and every violation of the Constitution be reprehended: if defective, let it be amended, but not suffered to be trampled upon whilst it has an existence.”

  Most Americans at that time were too preoccupied with their own lives to worry either about the weaknesses of the Continental government or about an unsuccessful uprising of farmers in Massachusetts; but for those who worried about the fate of America, not as a loose collection of states but rather as a single nation, those developments seemed profoundly troubling. In 1776 most Americans believed that the greatest threat to liberty was to be found in the overriding power of a distant, centralized government. But the men who provided the energy and intellect behind the movement for a new constitution—their hopes and fears shaped by the challenges and frustrations of fighting a long, costly war and of securing peace and public order at home—had come to believe that the lack of “energy” in the Continental government posed an equally formidable threat to liberty. As they prepared to meet in the Pennsylvania State House—the same building in which Americans had declared their independence in 1776—they were in a mood to launch a second revolution in American government.

  CHAPTER THREE

  THE CONSTITUTIONAL CONVENTION OF 1787

  A REVOLUTION IN GOVERNMENT

  THE FIFTY-FIVE MEN WHO GATHERED in the Assembly Room of the Pennsylvania State House in the summer of 1787 faced a formidable task. The thirteen “united states” that comprised the American union under the Articles of Confederation were in fact profoundly disunited. America, by the extraordinary expanse of its territory, the ethnic and religious diversity of its population, and the existence of thirteen independent and sovereign states, each possessing distinct cultural and political traditions and a multitude of varying and competing interests, was by no means inevitably meant to be a single nation.

  As things have turned out, the framers of the Constitution were remarkably successful in their enterprise. The Constitution they drafted has proven a remarkable achievement: It is the world’s oldest written national constitution. It has, for the most part, been successful in striking that difficult balance between the maintenance of public order and security, on the one hand, and the nurturing and protection of personal liberty, on the other. And it has brought remarkable stability to one of the most tumultuous forms of political activity: popular democracy.

  But it didn’t begin that way, nor was the outcome of the Constitutional Convention in any way inevitable. As we look at the work of the Founding Fathers during that summer of 1787, it seems a wonder that things turned out as well as they did.

  As the framers of the Constitution set about their work, they were confronted by a vexing dilemma. The central unifying idea behind America’s rejection of British monarchical rule in 1776 was the belief that governmental power was inherently aggressive, inherently dangerous. The best way to protect liberty, the revolutionaries of 1776 believed, was to keep government relatively weak and keep it close to the people, where those entrusted with power could be closely watched. The very last thing that they wished to do was create a strong central government, distant and isolated from the people of the country. Yet, as we have seen, America’s patriot leaders knew some form of central government was necessary to fight and win a war against one of the world’s great military powers and thus achieve their quest for independence. The first logical—if inadequate—step in creating a workable union among the states was the government under the Articles of Confederation. As the year 1786 drew to a close, with the Continental government facing bankruptcy and with armed insurrection threatening peace and public order in Massachusetts, those political leaders who had led America’s fight for independence began to realize that dramatic action needed to be taken if they were going to preserve the very aim of their quest: the preservation of both liberty and order.

  THE ANNAPOLIS CONVENTION

  These crises in government coincided with the convening of a small group of delegates in Annapolis, Maryland,
on September 11, 1786, to discuss a more “uniform system” of commercial relations among the states. The so-called Annapolis Convention was a strictly extralegal gathering and, in truth, it failed altogether to achieve its stated mission. Only twelve delegates, from five of the thirteen states, turned up, and, lacking a quorum, there was not really much that they could accomplish. But those twelve delegates who went to the trouble to make the trip to Annapolis—among them John Dickinson, Alexander Hamilton, James Madison, and Virginia governor Edmund Randolph—all held far less complacent views about the need for a more energetic Continental government than those serving in the governments of most of the states. Concluding their business on September 14, 1786, the twelve delegates endorsed an address prepared by Hamilton; that address asked “with the most respectful deference” that the states appoint commissioners to meet in Philadelphia in May of the coming year, “to devise such further provisions as should appear to them necessary to render the constitution of the Federal Government adequate to the exigencies of the Union.” This seemed like a modest proposal, but underlying that request was a very ambitious agenda. The men in Annapolis were not interested in minor adjustments to the provisions of the Articles of Confederation; they were, in fact, hoping to launch a revolution in government.

  Their plans for this revolution would first have to gain the approval of the Continental Congress in New York. The Congress received the address from the Annapolis Convention on September 20, and then ignored it for three weeks before finally referring it to a “grand committee” consisting of a delegate from each of the thirteen states. And there the proposal for a convention languished. Some of the inactivity stemmed from the reservations of a few committee members, who thought that the Congress had no right to call such a convention, but the more important reason for the Congress’s inaction stemmed from its inability to get a sufficient number of delegates together to take up the matter at all. More than four more months would pass before, finally, on February 21, 1787, Congress took action. Some of the credit for that first positive step belongs to James Madison; in spite of bouts of illness, he made the trip from Virginia to New York to urge action on the Annapolis proposal. Perhaps more important, even though the Shaysite rebels in western Massachusetts had been dispersed by an imposing military force just two weeks before, the Continental Congress continued to receive news that the Commonwealth of Massachusetts was in a state of rebellion.

  When the Continental Congress finally approved the proposal that a meeting of delegates from each of the states be held in Philadelphia in May, it did so with the understanding that the convention would meet “for the sole and express purpose of revising the Articles of Confederation, and reporting to Congress and the several legislatures such alterations and provisions therein as shall when agreed to in Congress and confirmed by the States, render the federal Constitution adequate to the exigencies of Government and the preservation of the Union.” The congressional delegates, reluctantly agreeing to the idea of a convention, had done everything they could in their resolution of approval to limit the charge of that convention. But those constraints would soon be ignored by a handful of delegates to the Constitutional Convention who had a far more ambitious idea for a federal union in mind.

  THE CONVENTION DELAYED

  It did not begin auspiciously. On May 14, 1787, the day on which the Convention was due to begin, James Madison, who had arrived in Philadelphia eleven days before, found himself in a gloomy mood. Only a handful of delegates had turned up, and indeed eleven more days would pass before the Convention was finally able to get under way with a bare quorum of seven state delegations assembled. General Washington, one of the few who had arrived in Philadelphia on time, began to worry that the Constitutional Convention would fall victim to the same combination of apathy and indolence that had afflicted the Continental Congress. As things turned out, however, that eleven-day hiatus would provide for those few delegates who had bothered to turn up on time a rare opportunity to plan their revolution in government.

  The ringleader was the thirty-seven-year-old Madison. Standing only a few inches over five feet tall, scrawny, suffering from a combination of poor physical health and hypochondria, and painfully awkward in any public forum, Madison nevertheless possessed a combination of intellect, energy, and political savvy that would mobilize the effort to create an entirely new form of continental union.

  Madison was gradually joined, over the days between May 14 and May 25, by a group of delegates from Virginia and Pennsylvania who would combine to concoct a plan not merely to “amend” the Articles of Confederation, but to set the proceedings of the Convention on a far more ambitious course. The first gathering of these reform-minded delegates took place on the evening of May 16, in the home of Benjamin Franklin, where dinner was served in his impressive new dining room along with a “cask of Porter,” which, Franklin reported, received “the most cordial and universal approbation” of all those assembled. The Pennsylvania and Virginia delegates would thereafter meet frequently during the days leading up to May 25, both in the afternoons in the state house itself and in the evenings in City Tavern or the Indian Queen, to craft an entirely new conception of Continental government.

  Franklin’s and Washington’s presence gave the group both dignity and prestige, but it was Madison and James Wilson and Gouverneur Morris of Pennsylvania who provided much of the intellectual leadership. Wilson, a dour but brilliant Scotsman, was perhaps the only person in the Convention who was Madison’s intellectual equal, and he shared Madison’s commitment to creating a truly “national” government based on the consent of the people, not the individual states. Gouverneur Morris was nearly as intellectually brilliant as Wilson; he shared with Wilson a desire for a strong national government, but his personality was very different—more mercurial and outgoing (particularly when it came to his amorous relationships with women). And he was also more openly contemptuous of the excesses of “democracy.” Together these men would forge a radical new plan, the Virginia Plan, which would shape the course of events during that summer of 1787.

  THE CONVENTION GOES TO WORK

  By seizing the initiative, this small group of nationalist-minded politicians was able to set the terms of debate during the initial stages of the Convention, gearing the discussion toward not whether, but how a vastly strengthened Continental government would be constructed. On May 25, 1787, the Convention finally gathered the necessary number of delegates to open its business, and the following Monday, May 28, the delegates agreed to a proposal that would prove invaluable in allowing men like Madison, Wilson, and Morris to move their plan forward. To prevent the “licentious publication of their proceedings,” the delegates agreed to observe a strict rule of secrecy, with “nothing spoken in the house to be printed or otherwise published or communicated.” One consequence of this decision was that the delegates were forced to deliberate throughout that Philadelphia summer—with the average daytime temperature in July and August hovering in the eighties and nineties and the intense humidity for which the city is still famous—with the doors of the Assembly Room closed and its windows shut. The more important consequence, amazingly, at least in terms of twenty-first-century political practices, was that the delegates were scrupulous in adhering to the rule of secrecy. Barely a world of their deliberations leaked out of the Convention during the whole of the summer.

  Virtually all the delegates took it for granted that the rule of secrecy was wholly appropriate; in the words of Virginia’s George Mason, it was “a necessary precaution to prevent misrepresentations or mistakes; there being a material difference between the appearance of a subject in its first crude and undigested shape, and after it shall have been properly matured and arranged.”

  But was such secrecy appropriate to a democratic republic? Our answer today, of course, would be no. Yet the delegates, if they had had to answer the question, would have been quick to remind us that the political values they were serving, while definitely “republican,”
were not “democratic.” As firm believers in republican values, they were committed to creating a political system that rejected any form of hereditary rule, and that was broadly representative of the public at large—but their commitment to republican values did not extend to an endorsement of the notion that all men were equally qualified or equally entitled to play an active part in the creation of a new government.

  Protected from a hostile public reaction by the rule of secrecy, the delegates proceeded to debate the Virginia Plan, the essential features of which were:

  1. The creation of a “national” legislature consisting of two branches, with membership in each branch to be apportioned according either to “Quotas of contribution” or the “number of free inhabitants.” This body would have the power to “legislate in all cases to which the separate States are incompetent” and to “negative all laws passed by the several States.”

  2. The creation of a powerful “National Executive,” to be elected by the national legislature.

  3. The chief executive, together with “a convenient number of the National Judiciary,” would compose a “Council of revision,” which could veto laws passed by either the national legislature or the various state legislatures.

  As the details of the Virginia Plan were revealed to those gathered in the Assembly Room, it became clear that the plan was not a mere revision of the Articles of Confederation but, rather, a bold new start on an entirely new kind of government. The word “national” rather than “federal” was used repeatedly to describe the various branches of the proposed government, and the powers of that government were consistently defined as superior to those of the states. The Virginia Plan also reflected some of the reservations that its authors had with respect to democratic political processes. Of all the branches of the government, only the lower house was to be directly elected by the people; officials in the other branches were to be either indirectly elected or appointed.