Birth of a Nation

Constitution Series 1787-1987: The labor that brought forth our Constitution. First in a series in this Bicentennial year.

Much of what we are today we owe to the Constitution drafted 200 years ago to replace the original Articles of Confederation. Suppose the Constitution had not been adopted. What would we be like?

Geographically, the original area east of the Mississippi might still be together, although I think it unlikely. Even before 1787, separatist movements agitated Vermont, Maine, Kentucky, and Tennessee. Almost certainly the United States would not include the West, although Texas-like revolutions might have created other English-speaking republics.

Politically, a weak eastern confederation and several independent nations in a balkanized West might well have had quite a different history. Doubtless there would have been wars, but nothing quite like the Civil War; and today parts of the old South might well be like South Africa. North America would not have had much voice in world affairs, and in particular, the First World War might have turned out differently, precluding both Lenin and Hitler but doubtless admitting other, unimagined horrors.

Economically, the great American common market would probably never have emerged, thereby minimizing capitalism, moderating industrialization, discouraging immigration, and perhaps perpetuating something of a colonial economy.

Morally, our political and economic liberalism, today a beacon for the world, would almost certainly have shone less brightly, if at all. The framers feared mercantilist state governments manipulating the economy and political rights for private advantages. Their horrible example was Rhode Island, where, for the year before the Philadelphia Convention at which the Constitution was hammered out, a populist legislature had been destroying liberty. First it printed paper money so its politically dominant farmers could defraud their creditors. When the paper quickly depreciated and merchants refused to accept it, the legislature made refusal a felony and established special courts with specially selected judges to force acceptance. For the hapless butcher or miller caught in this trap, punishment was jail and permanent loss of civil rights, especially the right to vote.

The framers believed such populism was spreading. First Rhode Island, then Shays' Rebellion in Massachusetts which had the same goals, and then what? Virginia perhaps, where Patrick Henry sounded pretty much like the Rhode Islanders? Or Maryland with Sam Chase? Or North Carolina with Willie Jones? The framers visualized, correctly, I believe, a future of petty populist tyrannies in state governments. The Constitution they devised thus became the bulwark of civil and economic liberty against such abuse, not only for America but for the world.

This great achievement did not come easily. Looking back at, say, the year 1785, it seems astonishing that the Constitution was ever born. In that year, many states were controlled by people who were later Antifederalists, that is, partisans of provincial political establishments.

Furthermore, while the faction that later became Federalist had controlled Congress in the early 1780s, it had twice failed to institute its main reform—a national tariff to make the national government financially independent of the irresponsible states. Yet in two years, 1787–1788, the Constitution was written, ratified, and put into operation. The great historical question is: How did the framers and their political friends manage to bring about a permanent triumph for centralization and liberty?

Their way was paved in 1786 by the Annapolis Convention. Many people, including many who were later Antifederalists, believed that Congress ought to have more authority over interstate and foreign commerce. Five states responded to Virginia's appeal for delegates to a convention in Annapolis to consider commercial revisions of the Articles of Confederation. While five states were too few to propose any substantive reforms, the assembly did call for another convention in Philadelphia the next May to revise the Articles generally.

This time 12 states—all but Rhode Island—sent delegates. What made the difference between Annapolis and Philadelphia? The two great political issues of 1786.

One was a projected commercial treaty between Spain and the Confederation. It would have given American ships unlimited access to Spanish ports while closing the Mississippi (that is, charging exploitative tariffs) for a period of perhaps 20 years. These terms were highly advantageous to New England seamen and devastating to western farmers. Such a treaty couldn't pass under the Articles because five states could stop it. But the southern states were appalled and wanted commercial regulations that would put an end to such proposals forever. Virginia took the lead, therefore, to invite the other states to Philadelphia and to force Congress to endorse the convention.

The other political event was Shays' Rebellion—not much as rebellions go, but devastating to Americans who could not understand why voters would rise up against a republican government. Actually, the rebellion was easy to understand. In 1785 Massachusetts had raised taxes to pay off war debts, thereby causing many sheriff's sales among subsistence farmers in the west, who had no cash to pay taxes. So they tried to stop the sales. Their intent was generally misunderstood—George Washington, for example, even thought the British were stirring up the rebellion. Regardless of the Shaysites' motivations, however, New England states were distressed enough to send delegates to Philadelphia.

The most remarkable feature of the 55 delegates who came to Philadelphia was that they were almost entirely of one political faction, the nationalists, soon to be called Federalists. They were men who, like Washington and Benjamin Franklin, wanted a strong central government for military and diplomatic reasons or who, like James Wilson (Pennsylvania) or Alexander Hamilton (New York), wanted it for commercial and trading reasons or who, like James Madison (Virginia) and Rufus King (Massachusetts), wanted it for reasons of domestic order in a liberal society.

If we were to have a constitutional convention today, both parties would be well represented. But in 1787 only nationalists came. Leaders of the provincials took no interest in the convention and, in a number of notable cases, rejected opportunities to attend. They were reluctant to legitimize a convention that they correctly believed was a gathering of nationalists. And they saw no danger in boycotting: amendment of the Articles required unanimity, and twice a national tariff had been vetoed by one state (first Rhode Island, then New York). Presumably at least one state would veto any serious amendment from Philadelphia. So it was safe for the provincials to stay home.

Consequently, only two effective provincials were in attendance at Philadelphia: Elbridge Gerry (Massachusetts) and Luther Martin (Maryland). They took an active part in debate and sponsored several improvements crucial for ratification, but they were not able to convert anyone else to their provincialism. (There were several other provincials present: Robert Yates and John Lansing, both of New York, went home after a month when they saw how things were going; John Mercer (Maryland) dropped in for only a week in August; and Virginians George Mason and Edmund Randolph refused to sign the Constitution, though they took a strongly nationalist position right up to September and Randolph supported the Constitution in the Virginia ratifying convention.)

Not surprisingly, therefore, the convention ultimately framed a remarkably centralizing constitution. Think of the range between an alliance of independent governments such as NATO, where all the important decisions for the alliance are made by the member governments, and a unitary government such as France, where all the important local decisions are made by the national government. The United States under the Articles was very close to the alliance end of the scale, while the United States of the Constitution was more than halfway to the unitary end. This is what the nationalists of 1787 intended, and this is what they achieved.

James Madison, then an ardent nationalist, devised the plan for the Constitution. He had served in both the Virginia legislature and the Congress, and he saw a great difference in the average quality of members. The former was full of back-country farmers, easily misled by paper-money demagogues, while the latter contained a national elite who, as he wrote to Washington, would never consider paper money.

In planning for the convention, therefore, Madison devised a system in which state officials had no voice at all. It consisted of a national legislature where the states would be represented according to population (not equally, as under the Articles), with the lower house popularly elected, the upper house elected by the lower, and an executive and judiciary chosen by both houses together. The national government was to be supreme in its sphere and, moreover, was to have an unconditional veto over state laws.

The Virginia delegation adopted Madison's plan with only slight revisions. Had the whole convention also followed Madison closely, the United States would have immediately been as centralized as France. But, while the framers probably did agree with Madison, debate revealed that the harshest features would have to be modified to make the plan palatable to state officials for ratification.

For one thing, Virginia's insistence on unequal representation did not sit well with the small states, who much appreciated their veto in Congress, For the first half of the convention this was the main point at issue. It generated dramatic debate: Gunning Bedford (Delaware) threatened to look "elsewhere" (read: England) for support and Gouverneur Morris (Pennsylvania) replied with the threat of unification by the sword. But in the end the dispute was compromised with equality of states in the Senate and inequality in the House.

Looking back, it seems that compromise was more or less inevitable. The small states were in fact the most clearly nationalistic: Delaware was the first state to ratify, New Jersey the third; Georgia, the fourth, ratified unanimously, while Connecticut, the fifth, ratified by a huge majority. Charles Pinckney (South Carolina) remarked cynically: "Give New Jersey an equal vote and she will dismiss her scruples and concur in the national system." He was right. William Paterson (New Jersey) was not an incipient Antifederalist—he just wanted a loud voice. Hence the obvious compromise: equal representation in the Senate, unequal in the House.

The only other really difficult issue was the method of selecting the president. Madison wanted most of all to exclude state officials from the selection process. The obvious alternative was Congress, which would make it a kind of parliamentary government. But Pennsylvania in fact had such a government, and the Pennsylvania delegates believed that it resulted in populist tyranny. (In parliamentary governments it often happens that the executive is elected by a coalition that wins just over half the voters in half the districts; hence he represents about one-fourth of the voters, surely not majority rule.)

Pennsylvania's Gouverneur Morris and James Wilson both urged some other means of electing the president, by popular vote or by an electoral college of some sort. Morris probably invented the method adopted, the electoral college, a fine compromise that left open the choice of electors, possibly by state legislatures (as happened at first) and possibly by popular vote (as happened later), and that had Congress choose in the absence of a collegial majority.

These two alterations gave state governments some role. Furthermore, the national legislative veto of state laws was softened to a national judicial veto only in the case of conflict of laws, which was in the long run about as potent but in the short run was less offensive to state pride.

Thus modified and of course fleshed out with institutional detail (including a direct prohibition of state paper money), the Virginia plan became the proposed Constitution.

It is astonishing enough that the Federalists were able to maneuver state legislatures into sending delegates to a convention. It is even more astonishing that they gathered together the partisan collection that wrote a strictly Federalist Constitution. But what is most astonishing of all is that they were able to get this partisan document ratified.

The first step toward ratification was the adoption of a winning procedure. From the beginning, the Virginia plan provided for ratification by state conventions rather than state legislatures—another Madisonian device to exclude state officials who had a vested interest in the status quo. Under the Articles of Confederation, amendments required unanimity and Rhode Island, certainly, and New York, probably, would have vetoed the new Constitution.

To initiate their proposal, therefore, the framers had to bypass unanimity. This they did by starting over as if the Articles had never existed. The Articles were said to be flawed because they had been ratified by legislatures elected for other purposes. Now the new Constitution was to be ratified by specially selected conventions, which they counted as direct ratification by the people. In changing the procedure it was also reasonable to change the majority. Some—for example, Washington—thought 7 out of 13 of the states was sufficient. Others thought 9 out of 13 was conventional, a number often used in Congress, and 9 out of 13 was adopted.

This procedure made the Federalists' task feasible although still difficult. Some ratifications came easily. Pennsylvania Federalists, fearing (incorrectly, as it turned out) that they would lose the fall election, provided for a special election for the ratifying convention even before Congress had transmitted the Constitution. Antifederalists naturally resented this unseemly haste, but the Federalists won and ratified by a large majority in December, only three months after the Constitution was signed. Speedy as Pennsylvania was, its satellite, Delaware, had ratified first, unanimously. New Jersey ratified unanimously in December, and Connecticut followed with a 2-to-1 majority early in January. These two states were apparently eager to avoid New York's tariffs. Georgia also ratified unanimously in December because, at war with Indians instigated by Spain, Georgians wanted military aid.

Five easy pieces. Then Federalist momentum slowed down. Two other easy states were in the offing: Maryland and South Carolina. But for local political reasons they delayed their conventions until spring. All the other states were difficult. Strong Antifederalist opposition had developed in the autumn.

In Massachusetts, the commercial and market-oriented east was strongly Federalist, but the subsistence-farming west was unconcerned about national problems. Similarly in New Hampshire—except that the northwest was Federalist out of fear about the border. Virginia and North Carolina were also divided east and west, though as it turned out Virginia had a Federalist majority and North Carolina initially rejected the Constitution. Rhode Island was not expected to ratify, and in New York the city and its environs were enthusiastically Federalist, while upstate, where they lived substantially tax-free on the tariffs collected in the city, Anti-federalism was very strong. Six difficult states, and the Federalists, by the terms they had themselves set, had to get at least two of them.

As it turned out they got four. And the trick was that in the very course of ratification they changed the agenda. In effect they amended the proposal to render it more palatable. For comparison, imagine a referendum today. About noon on election day the sponsors of a referendum realize it might fail; so they announce that, on their honor, they will change it, after it has been passed, to satisfy the main complaints. Thereupon it passes and indeed later they change it. An unbelievable scenario. But that is about what happened.

When Massachusetts Federalists realized that Antifederalists had a majority in the ratifying convention, they proposed that the convention ratify and recommend amendments, which they promised to pass in the first Congress. The Massachusetts convention then ratified! The same promise worked in Virginia and New Hampshire, and possibly also in New York, though in New York, the 11th state to ratify, the main motivation seems to have been a fear of being excluded.

So the Federalists had 11 ratifications by July 1788, less than two years after Annapolis; Congress and presidential electors were chosen in the fall of 1788; and the new government was in operation in the spring of 1789. This Federalist triumph gave us a fairly centralized Constitution that was able to withstand even civil war. To whom do we owe this legacy?

First of all, I believe, to George Washington. He sponsored a two-state meeting on Potomac navigation, which was the beginning of the call for the Annapolis Convention, which in turn led to the Philadelphia Convention. As this sponsorship indicates, he was, from 1784 onward, a strong proponent of a better national government. More importantly, he came to Philadelphia, acted as president of the convention, and gave the Constitution his strong endorsement. Voters identified it with him, which is almost certainly one of the main reasons it was ratified.

The second main figure was, in my opinion, James Madison. He came to Philadelphia with a plan, persuaded the other Virginians to sponsor something close to it, and devoted the summer to managing it through the convention.

Other framers who played an important part in developing features of the Constitution were:

• Gouverneur Morris, who spoke most frequently, served more steadily on committees, and probably invented more clauses than any other delegate—and he wrote the final draft, so we owe its sonorous phrasing to him;

• the three delegates from Connecticut, Roger Sherman, William Samuel Johnson, and Oliver Ellsworth, who pressed for the compromise on representation in the House and Senate;

• Elbridge Gerry and Nathaniel Strong of Massachusetts, who provided the swing votes on the crucial issue of representation—had this vote gone the other way, the convention might well have recessed, never to reassemble;

• James Wilson of Pennsylvania, who, along with Gouverneur Morris, was the strongest voice in the convention for the inclusion of democratic features.

During the ratification campaign there were, of course, many important Federalist leaders. But among the debaters, Madison and Alexander Hamilton stand out. The Federalist Papers, which they wrote with the help of John Jay, is America's contribution to world literature on politics.

And finally the voters. Looking at elections both before and after the ratification elections, it seems that Antifederalists might have been a majority in the era. But for the ratification itself, the Constitution won—and we owe that to the good sense of the ordinary citizens of 11 states.

William Riker is Wilson Professor of Political Science at the University of Rochester. His most recent book is The Art of Political Manipulation.