The American Revolution: A History (18 page)

Some of the other luminaries of the Revolution were not present: Samuel Adams was ill; Thomas Jefferson and John Adams were serving as ministers abroad; and Richard Henry Lee and Patrick Henry, although selected by the Virginia legislature, refused to attend the Convention, Henry saying that he “smelt a rat.” The most influential delegations were those of Pennsylvania and Virginia, which included Gouverneur Morris and James Wilson of Pennsylvania and Edmund Randolph, George Mason, and James Madison of Virginia.

The Virginia delegation took the lead and presented the Convention with its first working proposal. This, the Virginia Plan, was largely the effort of the thirty-six-year-old Madison. Short, shy, and soft-spoken, habitually dressed in black, trained to no profession but widely read and possessing an acute and questioning mind, Madison devoted his life to public service. He understood clearly the historical significance of the meeting of the Convention, and it is because of his decision to make a detailed private record of the debates of the Convention that so much is known of what was said that summer in Philadelphia.

Madison’s initial proposals for reform were truly radical. They were not, as he pointed out, mere expedients or simple revisions of the Articles; they promised “systematic change” of government. Madison wanted to create a general government that would no longer be a confederation of independent republics but a national republic in its own right. It would operate directly on individuals and be organized as most of the state governments had been organized, with an executive, a bicameral legislature, and a separate judiciary. This national republic would be superimposed on the states. The states would now stand to the central government, in John Jay’s words, “in the same light in which counties stand to the state, of which they are parts, viz., merely as districts to facilitate the purposes of domestic order and good government.” Thus the radical Virginia Plan provided for a two-house national legislature with the authority to legislate “in all cases to which the states are incompetent” and to veto or “to negative all laws passed by the several states, contravening in the opinion of the National Legislature, the articles of Union.” If the national government had the power to veto all state laws, Madison believed, it could then play the same role the English crown had been supposed to play in the British Empire—that of a “disinterested & dispassionate umpire” over clashing interests.

For many in the Philadelphia Convention, however, this Virginia plan was much too extreme. Most delegates were prepared to grant substantial power to the federal government, including the right to tax, regulate commerce, and execute federal laws. But many refused to allow such a weakening of state authority as the Virginia Plan proposed. Opponents of the nationalists, led by delegates from New Jersey, Connecticut, New York, and Delaware, countered with their own proposal, the New Jersey Plan (so-called because it was introduced by William Paterson of New Jersey). This New Jersey Plan essentially amended the Articles of Confederation by adding to the powers of Congress, but at the same time it maintained the basic sovereignty of the states. With two such opposite proposals before it, the Convention approached a crisis in the middle of June 1787.

During the debate that followed, the nationalists, led by Madison and Wilson, were able to retain the basic features of the Virginia Plan and convince a majority of the states at the Convention to reject the New Jersey Plan. Yet the nationalists had to make some concessions. Instead of granting the national legislature a blanket authority “to legislate in all cases to which the separate States are incompetent,” as the Virginia Plan proposed, the Convention granted the Congress (in Article I, Section 8 of the Constitution) a list of enumerated powers, including the powers to tax, to borrow and coin money, and to regulate commerce. And instead of giving the national legislature the right to veto harmful state laws, the Convention forbade the states from exercising certain sovereign powers whose abuse had helped to create the crisis of the 1780s. In Article I, Section 10 of the final Constitution, the states were barred from carrying on foreign relations, levying tariffs, coining money, emitting bills of credit, passing ex post facto laws, or doing anything to relieve debtors of the obligations of their contracts. In contrast to the extensive fiscal powers given to the Congress, the states were rendered nearly economically incompetent. Not only did the new Constitution prohibit the states from imposing customs duties—the eighteenth century’s most common and efficient form of taxation—but it also denied the states the authority to issue paper money, and thus succeeded in doing what the British government’s various currency acts in 1751 and 1764 had tried and generally failed to do.

The Convention decided on a strong and single executive. The president was to stand alone, unencumbered by an executive council except one of his own choosing. With command over the armed forces, with the authority to direct diplomatic relations, with power over appointments to the executive and judicial branches that few state governors possessed, and with a four-year term of office and perpetually reeligible for reelection, the president was a magistrate who, as Patrick Henry later charged, could “easily become king.” To ensure the president’s independence, he was not to be elected by the legislature, as the Virginia Plan had proposed. Since the Framers believed that few presidential candidates in the future would enjoy wide popular recognition throughout the country, they provided for local elections of “electors” equal in number to the representatives and senators from each state. These electors would cast ballots for the president. But if no candidate received a majority—which in the absence of political parties and organized electioneering was normally expected—the final selection from the five candidates with the most votes would be made by the House of Representatives, with each state delegation having one vote.

The Virginia Plan’s suggestion of a separate national judiciary to hold office “during good behavior” was accepted without dispute. The structure of the national judiciary was left to the Congress to devise. The right of this judiciary, however, to set aside acts of the Congress or of the state legislatures was by no means clearly established.

The nationalists in the Convention reluctantly gave way on several crucial issues, particularly on the national legislature’s authority to veto state legislation. But they fought longest and hardest to hold on to the principle of proportional representation in both houses of the legislature, and this dispute almost stalemated the Convention. It was decided that both taxation and representation in the House of Representatives ought to be based on population, and not on the states as such or on landed wealth. The nationalists like Madison and Wilson, however, wanted representation in the Senate also to rest on population. Any suggestion that the individual sovereignty of the states ought to be represented equally smacked too much of the old Articles of Confederation. Hence the nationalists came to regard the eventual “Connecticut Compromise,” by which each state secured two senators in the upper house of the legislature, as a disastrous defeat.

Although Madison and Wilson lost the battles over the congressional veto of state laws and proportional representation in both houses, they and the other Federalists (as those who supported the Constitution shrewdly came to call themselves) had essentially won the war over the basic nature of the central government. Once the New Jersey Plan, which preserved the essentials of the Articles of Confederation, was rejected on June 19 in favor of the Virginia Plan, the opponents, or Anti-Federalists, found themselves forced, as Richard Henry Lee complained, to accept “this or nothing.” And most Anti-Federalists wanted some sort of central government.

Although the Articles of Confederation required that amendments be made by the unanimous consent of the state legislatures, the delegates to the Philadelphia Convention decided to bypass the state legislatures and submit the Constitution to specially elected state conventions for ratification. Approval by only nine of the thirteen states was necessary for the new government to take effect. This transgression of earlier political principles was only one of many to which the Anti-Federalists objected.

THE FEDERALIST–ANTI-FEDERALIST DEBATE

The federal government established by the Philadelphia Convention seemed to violate the principles of 1776 that had guided the Revolutionary constitution-makers. The new Constitution provided for a strong government with an extraordinary amount of power given to the president and the Senate. It also created a single republican state that would span the continent and encompass all the diverse and scattered interests of the whole of American society—an impossibility for a republic according to the best political science of the day. During the debates over ratification in the fall and winter of 1787–88, the Anti-Federalists focused on these Federalist violations of the earlier Revolutionary assumptions about the nature of power and the need for a small homogeneous society in a republican state. They charged that the new federal government resembled a monarchy in its concentration of power at the expense of liberty. Because the society it was to govern was so extensive and heterogeneous, the Anti-Federalists asserted, the federal government would have to act tyrannically. Inevitably, America would become a single consolidated state, with the individuality of the separate states sacrificed to a powerful national federal government. And this would happen, the Anti-Federalists argued, because of the logic of sovereignty. That powerful principle of eighteenth-century political science, which the British had used so effectively against the colonists in the imperial debate, held that no society could long possess two legislatures: it must inevitably have one final, indivisible lawmaking authority. “We shall find it impossible to please two masters,” declared the Anti-Federalists. There could be no compromise: “It is either a federal or a consolidated government, there being no medium as to kind.” Because the Constitution was to be the “supreme law of the land,” the Anti-Federalists had no doubt that the proposed central government “must eventually annihilate the independent sovereignties of the several states.” The doctrine of sovereignty dictated that result.

Despite these formidable Anti-Federalist arguments, the Federalists did not believe that the Constitution repudiated the Revolution and the principles of 1776. They answered the Anti-Federalists not by denying the principle of sovereignty but by relocating it in the people at large. In doing so they forged an entirely new way of thinking about the relation of government to society. It marked one of the most creative moments in the history of political thought.

During the decade since Independence, American political culture had been transformed. Americans, it now appeared clear, had effectively transferred this sovereignty, this final lawmaking authority, from the institutions of government to the people at large. Ever since 1776 the American people, unlike the English, had refused to accept the fact that the election of their representatives eclipsed their existence; in the Americans’ view the people “out of doors” continued to act outside of all the official institutions of government. During the 1780s the people had organized various committees, conventions, and other extralegal bodies in order to voice grievances or to achieve political goals. By doing so, they had continued common practices that had been used during the Revolution itself. Vigilante and mob actions of various kinds had done quickly and efficiently what the new state governments were often unable to do—control prices, prevent profiteering, and punish Tories. Everywhere people had extended the logic of “actual” representation and had sought to instruct and control the institutions of government. Unlike the British in relation to their House of Commons, the American people never surrendered to any political institution or even to all political institutions together their full and final sovereign power.

By 1787–88 all this activity by the people outside of government tended to give reality, even legal reality, to this idea that sovereignty in America resided and remained in the people at large, and not in any specific institutions of government. Only by believing that sovereignty was held by the people outside of government could Americans make theoretical sense of their recent remarkable political inventions—their conception of a written constitution that was immune from legislative tampering, their special constitution-making conventions, their processes of constitutional ratification, and their unusual ideas of “actual” representation. This idea of sovereignty remaining in the people at large rather than being deposited in any institution of government opened up entirely new ways of thinking about government.

To meet the Anti-Federalist arguments against the Constitution, the Federalists were now determined to exploit this new understanding of the ultimate power of the people at large. True, they said, the Philadelphia Convention had gone beyond its instructions to amend the Articles of Confederation. It had drawn up an entirely new government, and it had provided for the new Constitution’s ratification by special state conventions. Had not Americans learned during the previous decade that legislatures were not competent to create or to change constitutions? If the federal Constitution was to be truly a fundamental law, then, the Federalists argued, it had to be ratified “by the supreme authority of the people themselves.” Hence it was “We the people of the United States,” and not the states, that ordained and established the Constitution.

By locating sovereignty in the people rather than in any particular governmental institution, the Federalists could now conceive of what previously had been a contradiction in politics—two legislatures operating simultaneously over the same community—the very issue over which the British Empire had broken. Thus they could answer the principal Anti-Federalist objection to the Constitution—that the logic of sovereignty would dictate that the national Congress would become the one final supreme indivisible lawmaking authority. Only by making the people themselves, and not their representatives in the state legislatures or in the Congress, the final supreme lawmaking authority could the Federalists explain the emerging idea of federalism, that unusual division of legislative responsibilities between the national and state governments in which neither is final and supreme. This idea became the model for similar divisions of legislative power elsewhere in the world.