by Ray Raphael
By contrast, the Federal Convention, driven by the spirit of political compromise, seemed downright patriotic, and quite arguably it was. The full text of Jay’s pamphlet, which deserves to be better known, is available online: http://teachingamericanhistory.org/library/index.asp?document=1791. A lengthy excerpt, including this passage, is accessible on the Web under the title “John Jay and the Constitution,” http://www.columbia.edu/cu/lweb/digital/exhibitions/constitution/address/address.html.
One more quotation from the pamphlet distills Jay’s argument into one sentence: “While reason retains her rule, while men are as willing to receive as to give advice, and as willing to be convinced themselves as to convince others, there are few political evils from which a free and enlightened people cannot deliver themselves.”
4. Principles
1.“Texas Essential Knowledge and Skills for Social Studies: Middle School,” http://ritter.tea.state.tx.us/rules/tac/chapter113/ch113b.html.
2.At http://wiki.answers.com/Q/7_principles_of_the_constitution (accessed April 2, 2012).
3.Jonathan Elliot, The Debates in the Several State Conventions on the Adoption of the Federal Constitution (New York: Burt Franklin, 1888), 3:608; and Founders’ Constitution, 1:268 (chap. 8, doc. 21), both cited in Gordon Wood, Creation of the American Republic (Chapel Hill: University of North Carolina Press, 1969), 499–500.
4.Elliot, Debates, 3:66, cited in Wood, Creation of the American Republic, 544.
5.In 1789 James Madison, when suggesting amendments that would later turn into the Bill of Rights, included a proposition that would have made the separation of powers overt: “The powers delegated by this Constitution are appropriated to the departments to which they are respectively distributed: so that the Legislative Department shall never exercise the powers vested in the Executive or Judicial, nor the Executive exercise the powers vested in the Legislative or Judicial, nor the Judicial exercise the powers vested in the Legislative or Executive Departments.” Congress rejected this proposal. “Separation of powers” was to be inferred from the structure of the Constitution, not stated explicitly (Annals of Congress, 1:453; reprinted in Veit et al., Bill of Rights, 14). The final provision of the Massachusetts Declaration of Rights, drafted by John Adams in 1779 and adopted in 1780 as part of the Massachusetts Constitution, stated: “In the government of this commonwealth, the legislative department shall never exercise the executive and judicial powers, or either of them; the executive shall never exercise the legislative and judicial powers, or either of them; the judicial shall never exercise the legislative and executive powers, or either of them; to the end it may be a government of laws, and not of men” (Schwartz, Bill of Rights, 1:344).
6.The general principle of limited government is often used to support particular limitations on governmental activities. The dissent by Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas, and Samuel Alito in the 2012 Supreme Court decision upholding most provisions of the Affordable Care Act (National Federation of Independent Businesses v. Sebelius) stated: “What is absolutely clear, affirmed by the text of the 1789 Constitution, by the Tenth Amendment ratified in 1791, and by innumerable cases of ours in the 220 years since, is that there are structural limits upon federal power—upon what it can prescribe with respect to private conduct, and upon what it can impose upon the sovereign States. Whatever may be the conceptual limits upon the Commerce Clause and upon the power to tax and spend, they cannot be such as will enable the Federal Government to regulate all private conduct and to compel the States to function as administrators of federal programs” (Legal Information Institute, Cornell University Law School, http://www.law.cornell.edu/supremecourt/text/11–393).
7.Randolph to Washington, February 12, 1791, Washington, Papers (PS), 7:337.
8.Jefferson to Washington, February 15, 1791, Washington, Papers (PS), 7:352 (emphases in the original).
9.Madison to Washington, February 21, 1791, Washington, Papers (PS), 7:395.
10.Hamilton to Washington, February 23, 1791, Washington, Papers (PS), 7:425, 429, 430 (emphases in the original). In Mr. President: How and Why the Founders Created a Chief Executive (New York: Knopf, 2012), I treat this sequence of events in the context of presidential powers. Washington’s veto, had he delivered it, would have been the nation’s first.
11.Hamilton to Washington, February 23, 1791, Washington, Papers (PS), 7:443, 450.
12.In Mr. President, I treat the debate over the national bank in the context of presidential powers. Washington’s veto, had he delivered it, would have been the nation’s first.
13.Veit et al., Bill of Rights, 14; Schwartz, Bill of Rights, 2:712. New Hampshire’s ratification convention proposed the exact same amendment. South Carolina declared that powers “not expressly relinquished” by the states remained with them. New York’s proposed amendment stated that “every power, Jurisdiction, and right, which is not by the said Constitution clearly delegated to the Congress of the United States, or the departments of the Government thereof, remains to the people of the several States, or to the their respective State Governments.” Virginia and North Carolina proposed slightly milder versions, without the intensifying adverbs “expressly” or “clearly.” A committee of Maryland’s convention first echoed Massachusetts: “Congress shall exercise no power but what is expressly delegated by this Constitution,” and then proclaimed this amendment was necessary to “restrain … the general powers given to Congress” under the sweeping first clause in Article I, Section 8, which gave Congress authority to “provide for the common Defence and general Welfare” of the nation, as well as the potentially expansive “necessary and proper” clause that closed that section. Even the critical clause in Article V that declared the Constitution and the laws passed by Congress “the supreme Law of the Land” needed to be “restrained,” the Maryland committee held. While the committee’s proposal never came to a vote in the full convention, this passage demonstrates an extreme desire to expressly limit the powers of the federal government. Veit et al., Bill of Rights, 15, 16, 19, 21–22; Schwartz, Bill of Rights, 2:732, 757, 760, 842, 911–12, 968.
14.Annals of Congress, 1:453, 790 (June 8 and August 18, 1789); also in Veit et al., Bill of Rights, 14 and 197.
15.Ibid., 1:797 (August 21, 1789); also in Veit et al., Bill of Rights, 199, with the roll-call vote omitted.
16.Later, as we will see in chapter 5, Madison would modify this stance, but at the time Congress approved his amendment, that is the meaning he and his colleagues attributed to it. That is the amendment Thomas Tudor Tucker had hoped to alter.
17.“Laws and Ordinances … of the City of Albany, MDCCLXXIII,” http://www.nysm.nysed.gov/albany/doc/laws.html. For a valuable discussion of the ideal of the “well-regulated society” reigning from late colonial times until the years following the Civil War, see William J. Novak, The People’s Welfare: Law and Regulation in Nineteenth-Century America (Chapel Hill: University of North Carolina Press, 1996).
18.“Determinatus,” Boston Gazette, January 8, 1770, in The Writings of Samuel Adams, ed. Harry Alonzo Cushing (New York: G. P. Putnam’s Sons, 1906), 2:5.
19.With the prospect of peace, Alexander Hamilton used a different rationale to argue that the good of the whole could take precedence over the liberty “to do as you please.” In 1782, as the fighting neared an end and the bankrupt nation was trying to recover, he argued that timely regulations would help promote commerce, not restrain it. “Commerce, like other things, has its fixed principles, according to which it must be regulated. If these are understood and observed, it will be promoted by the attention of government; if unknown, or violated, it will be injured” (“The Continentalist No. V,” April 18, 1782, in Hamilton, Papers, 7:76).
20.Madison, Papers, 9:348–53.
21.Martin’s comment is from Yates’s note for June 27 (Farrand, Records of Federal Convention, 1:441). In this case Martin was arguing against proportional representation and the presidential veto, but he still contended that thos
e features endangered the “public good” because the will of the people, represented by ten smaller states, could be negated.
22.In The Federalist No. 1, even while supporting liberty and trying to appease fears that the new federal government might be too strong, Alexander Hamilton warned against “an over-scrupulous jealousy of danger to the rights of the people” and predicted that an obsession with liberty could undermine the nation and its people. “A dangerous ambition more often lurks behind the specious mask of zeal for the rights of the people than under the forbidden appearance of zeal for the firmness and efficiency of government. History will teach us that the former has been found a much more certain road to the introduction of despotism than the latter, and that of those men who have overturned the liberties of republics, the greatest number have begun their career by paying an obsequious court to the people; commencing demagogues, and ending tyrants.” That is precisely why people needed government, Hamilton argued—a government such as provided by the newly minted Constitution, which he was urging people to accept. Although he was only one participant in the struggle for ratification and later debates over the meaning of the Constitution, and although some of his contemporaries might have disagreed with his statement here, and although his argument could be seen as a way to denigrate his opposition, Hamilton’s strong pronouncement demonstrates that the ongoing discussion concerning liberty and government did not always favor liberty at the expense of government, as Americans commonly assume today.
23.Consider James Wilson’s argument, offered early in the deliberations of the Federal Convention, for the direct popular election of federal representatives: “He wished for vigor in the Govt., but he wished that vigorous authority to flow immediately from the legitimate source of all authority. The Govt. ought to possess not only 1st. the force, but 2dly. the mind or sense of the people at large” (Madison, Notes of Debates, June 6). For a broader discussion of this idea in the period 1776–80, see Donald S. Lutz, Popular Consent and Popular Control: Whig Political Theory in the Early State Constitutions (Baton Rouge: Louisiana State University Press, 1980).
24.Madison, Notes of Debates, May 31. To keep citizens at some distance, Sherman wanted federal representatives to be chosen by state legislatures, as they were under the Articles of Confederation, rather than by the people. Gerry admitted he had been “too republican heretofore,” but now, after the uprising in his home state of Massachusetts, he had been “taught by experience the danger of the levilling spirit.”
25.Madison, Notes of Debates, May 31. Wilson, unlike most other delegates, also favored popular election of senators and the president.
26.Madison, Notes of Debates, June 12 (Randolph), July 19 (Morris), and June 26 (Madison). Even in the lower house of Congress, the relationship between the people and their representatives was not intended to be too direct. In late colonial and Revolutionary America, lower public bodies such as New England town meetings, as legal embodiments of “the people,” typically issued specific instructions to their representatives in higher bodies, telling them what actions they should initiate and how to vote on specific issues (see chapter 1). The Constitution said nothing about citizens issuing instructions, but the silence was noticed. Ratification conventions in four states (Virginia, New York, North Carolina, and Rhode Island) proposed amendments to guarantee the people’s right “to instruct their representatives,” and the First Federal Congress, when considering amendments that would eventually become the Bill of Rights, debated the right to issue instructions. Virginia’s John Page tied the right of instructions directly to the fundamental notion of popular sovereignty: “Our Government is derived from the people, of consequence the people have a right to consult for the common good; but to what end will this be done, if they have not the power of instructing their representatives? Instruction and representation in a republic appear to me to be inseparably connected.” But Pennsylvania’s Thomas Hartley, like the framers of the Constitution, preferred to give representatives full discretion: “Representation is the principle of our government; the people ought to have confidence in the honor and integrity of those they send forward to transact their business…. [H]appy is that Government composed of men of firmness and wisdom to discover, and resist popular error.” For the better part of a day, congressmen declared for a representative government, in which elected leaders were free to deliberate and decide on their own, or for a pure democracy, in which the people led and leaders followed, or something in between, in which people maintained the right to issue instructions, but representatives could reject them with good cause. Perhaps this debate should have occurred during the Federal Convention, but because no framer treated the notion of popular sovereignty quite so literally, the issue never arose. The matter was finally settled in the Federalist-dominated First Federal Congress, when the motion for an amendment to guarantee the right of instructions failed by a vote of ten to forty-one. The debate over instructions in the First Federal Congress, on August 15, 1789, is in Annals of Congress, 1:759–76. For more on instructions, see Michael Zuckerman, Peaceable Kingdoms: New England Towns in the Eighteenth Century (New York: Knopf, 1970), 166, 212–13; Ray Raphael, “The Democratic Moment: The Revolution and Popular Politics,” in The Oxford Handbook to the American Revolution (New York: Oxford University Press, 2012); Ray Raphael, “Instructions: The People’s Voice in Revolutionary America,” Common-Place 9:1 (October 2008), http://www.common-place.org/vol-09/no-01/raphael/. Some states continued to attempt to instruct their senators, but this practice faded away in the first years of the nineteenth century.
27.Whereas the opening of the Preamble, “We the People,” is a sincere expression of popular sovereignty, too much is made of the last minute decision by the Committee of Style and its designated draftsman, Gouverneur Morris, to change the text from the Committee of Detail’s original draft—“We the people of the States of New Hampshire, Massachusetts, Rhode-Island and Providence Plantations …” and so on, listing the states north to south—to the more succinct “We the People of the United States.” This was not a dramatic ideological pronouncement in favor of democratic nationalism, but rather a political necessity. Rhode Island, which had refused to send delegates, might refuse to ratify the proposed Constitution, as might other states. In that case, the original preamble would become a farcical reminder of the lack of unanimity and the Constitution would need to be amended to take account of the missing state or states. The listing of the separate states made no sense, so it simply had to go.
28.Yale Law School professor Akhil Reed Amar, for example, claims that “the abiding heart and spirit of the document [the Constitution] lay in the structure of its rules for political participation and political power, and these rules were … generally populist.” Through mechanisms the framers established, Amar says, the people keep their government in check (Akhil Reed Amar, America’s Constitution: A Biography [New York: Random House, 2005], 159). In his reading, which downplays the intentional filtrations, popular sovereignty joins separation of powers and checks and balances to form an overarching ideology focused on limiting government. This “democratic” interpretation of the Constitution, though, downplays or ignores key historical contexts. As I argue in Mr. President, 306–7: “The absence of federal property qualifications for the franchise, which some claim was a reflection of democratic principles, was actually a political necessity. Any attempt to impose such uniform standards would have created a host of troublesome problems, such as how to count (or not count) slaves. The absence of property qualifications for national office-holders, allegedly another democratic move, was also a political necessity because of the dissimilarity among state economies; further, it was not deemed necessary, for the framers assumed that only men of means would ever be considered for such positions. The direct election of House members, truly a democratic element, met the minimum standard for republican government, but the framers insured that no other federal office holders would be elected by the people. Instead of insisting th
at presidential electors be chosen by the people, they left the matter in the hands of state legislatures; this was a states’ rights issue, not a democratic one. In sum, the Constitution itself did not ‘pull … America toward a populist presidency,’ in Amar’s words (p. 152); later events did, and as they did, they undermined the basic intentions of the framers. Mass campaigning and pandering to voters, hallmarks of modern democracy and a ‘populist presidency,’ were anathema to the men who wrote the Constitution. Such phenomena they would view as signs of decay, the beginning of the end of true republican government. Gouverneur Morris, when recalling the mood among the framers, later wrote, ‘History, the parent of political science, had told them, that it was almost as vain to expect permanency from democracy, as to construct a palace on the surface of the sea’ (Morris to Robert Walsh, February 5, 1811, Farrand, Records of Federal Convention, 3:418). There is one respect in which the Constitution was indeed democratic. The ratification process called for conventions in each state to legitimate the proceedings in an uncontestable fashion. Here, the framers remained true to the basic premise of popular sovereignty: only the people themselves had the right to establish a constitution. Even this move, though, was motivated in part by the need to bypass state legislatures, which had good reasons to oppose the new Constitution because it usurped the authority of state governments and therefore the political power of each state legislator.”
29.For constitutional arguments through the 1790s in Congress and among the population, see David P. Currie, The Constitution in Congress: The Federalist Period, 1789–1801 (Chicago: University of Chicago Press, 1997), and Larry D. Kramer, The People Themselves: Popular Constitutionalism and Judicial Review (New York: Oxford University Press, 2004).
5. The Father
1.At http://en.wikipedia.org/wiki/James_Madison (accessed January 10, 2012). The titles of two prominent books play on the notion that Madison was uniquely responsible for the Constitution by referring to him as “The Founder” and “The Founding Father”: Marvin Myers, ed., The Mind of the Founder: Sources of the Political Thought of James Madison (Indianapolis: Bobbs-Merrill, 1973), and Robert Allen Rutland, James Madison: The Founding Father (New York: Macmillan, 1987).