The Genius of America (10 page)

From the perch of history, the framers' judgment about their own efforts seems very wise. The historian Bernard Bailyn put it this way: “The Founders of the American nation were one of the most creative groups in modern history . . . Since we inherit and build on their achievements, we now know what the established world of the eighteenth century flatly denied, but which they [the framers] broke through convention to propose—that absolute power need not be indivisible but can be shared among states within a state and among branches of government, and that the sharing of power and balancing of forces can create not anarchy but freedom.”

But in September of 1787, this was not the view shared by all Americans. And this was very significant, for not only did Americans have to live under the new Constitution, they had, as we discuss in the next chapter, to support its ratification in order for it to go into effect.

Some Americans believed that the convention had gone too far by not just repairing the Articles of Confederation. To this group of critics, the convention had exceeded its authority by creating a new, powerful, national government. Other groups of Americans simply thought the states should have more power than the Constitution provided, an argument that would continue until 1861 and beyond. Many also thought that the convention had not gone far enough in the protection of individual rights, that despite elected representatives, separation of power and checks and balances, the new governmental institutions and processes were still no guarantee against actions that trampled on individual liberties. “You are not to enquire how your trade may be increased nor how you are to become a great and powerful people, but how your liberties can be secured; for liberty ought to be the direct end of your government,” thundered Patrick Henry of Virginia in opposition to ratification at the Virginia ratification convention in 1788.

Ratification was far from assured. In the end, it would require an extraordinary effort by many of the framers in the constitutional conventions of their own states. And in the spirit of the whole constitutional project, it would require yet one more compromise by Madison and his colleagues. That compromise produced something they originally thought unnecessary. It produced the first ten amendments to the Constitution, the Bill of Rights.

3

THAT POOR LITTLE THING—THE
EXPRESSION
WE THE PEOPLE

Is it not the glory of the people of America, that, whilst they have paid a decent regard to the opinions of former times and other nations, they have not suffered a blind veneration for antiquity.

—J
AMES
M
ADISON
, 1787

P
ATRICK
H
ENRY, THE
revolutionary hero whose “give me liberty or give me death” speech fueled the war for independence, now opposed the new Constitution that had been drafted in Philadelphia. Three words explained his enmity. Those three words are the most resonant in American history. If schoolchildren learn anything about their Constitution these days, they learn these three words as a statement of the nation's unity and egalitarian democracy. Those words are
We the People
.

Yet to Patrick Henry, those words proved that the Constitution was the framers' grab for national political power that would, if ratified, recklessly endanger Americans' liberty. Why else, he thought, would they weaken the power of states, which to this point had so well protected the freedom of their citizens? “Is this,” Henry asked of the new Constitution, “an association of a number of independent states, each of which retains its individual sovereignty?” Clearly no, he answered. The proposed new government, Henry roared, was “most clearly a consolidated government.” To prove his point, he cited the first three words of the new Constitution's preamble, which were, he noted, “that poor little thing—the expression, We the People, instead of the states of America.”

“We the People of the United States, in Order to form a more perfect Union . . .”

To modern Americans, the phrase has lost its original radicalness. We don't see why it inflamed Patrick Henry. But indeed the proposed new Constitution did inflame him and “a great number” of other Americans, as Madison put it. They fought to kill the Constitution and in the process spurred one of history's greatest debates about democracy.

That debate accomplished a great deal beyond just the ratification of the Constitution itself. Supporters mounted a defense in which they laid out a new philosophy of government. They acknowledged, ultimately, that Henry was right in his description of the new government but wrong in his criticism. This new government was more centralized and covered a far larger territory than any democracy had ever previously covered. That was true. But supporters of the Constitution were able to convince Americans that this document laid out a system that was not only possible but necessary. To assuage the fears, raised by Henry and other opponents, that this centralized government would threaten liberty, the framers also addressed what in retrospect can only be seen as their biggest mistake at Philadelphia. And in making this adjustment they offered the first tangible demonstration of the genius of the new system. It could adapt to political need. It could channel lofty dreams and base politics into one process. And out of that process, driven by the individual interests and even selfish purposes of each citizen, could emerge something larger, even better, than the sum of what went in. In this case, what emerged to ensure ratification of the Constitution was its first ten amendments, what we now call the Bill of Rights.

T
HE
P
EOPLE
W
ILL
D
ECIDE

“You are called upon to deliberate upon a new Constitution for the United States of America,” announced Alexander Hamilton to the people of New York and the new nation on October 27, 1787, in the first of a series of missives, known now as
The Federalist Papers
, that he, Madison and John Jay wrote to persuade the people to support the new Constitution. It was the people of the United States, not the state legislatures, who were to judge the value of the proposed new Constitution through “Conventions of Delegates chosen in each state by the People thereof.”

The framers' decision to submit the Constitution to the people was groundbreaking, “the most audacious and altogether unqualified appeal to the notion of popular sovereignty and majority rule that had ever been made, even in America.” No other nation had ever submitted its Constitution to its people. Nor had Americans submitted the Declaration of Independence or most of their state constitutions to popular vote (only Massachusetts and New Hampshire had sought popular approval). This decision for popular ratification was somewhat ironic given the framers' skeptical view of human nature and the divisions at the convention over whether the people could be trusted to directly select the president and members of Congress.

But, in fact, circumstance made them feel there was no real choice.

The ratification of the Constitution is a wonderful example of the way in which the framers merged their lofty visions with pragmatic politics. That is a lesson we need to keep drawing from their experience. Good ideas alone are no substitute for wise action rooted in reality. Looking back on their work, we have no way of knowing whether the framers' lofty vision grew out of their understanding of pragmatic politics, or whether their lofty vision was articulated just to rationalize their pragmatic politics. Perhaps it is a distinction without a difference, but it certainly applies to the decision to submit the Constitution to ratification by convention in each state. Madison declared that a constitution's legitimacy was rooted in the approval of its people. Perhaps these were lofty ideals speaking. Governor Edmund Randolph offered a more practical reality. There was little chance state legislatures would ratify a new Constitution that so reduced their power. They decided to go around the state legislatures and appeal directly to the people.

A D
IVIDED
P
EOPLE

But in the fall of 1787, the people were divided. The convention had been conducted behind closed doors. The debates, which Madison recorded and we can now study, were unknown to Americans. (Madison's notes on the convention were published more than fifty years later.) The framers had carefully argued over every clause, in private, but had done virtually nothing to share their thinking or prepare other Americans for what they had done. They had invented a new form of democracy designed to allow the people to govern themselves. But they had not explained it to the people. This certainly would not be the last time in American politics when leaders faced a backlash when they left the people out of the process.

Most Americans favored a strengthening of the Articles of Confederation, which is what they thought the convention was doing. But they were far less certain about the proposed new government that actually emerged. This was not a mere reform but an extraordinary shift of political power from individual states to a new national government. While the framers saw this shift as the only means of protecting the liberty of Americans from the current chaos, many Americans were not convinced.

This produced an extraordinary ratification debate—a clash of ideas, to say nothing of occasional fists, egos, self-interests, agendas and visions, on a continental scale. It was one of the most vigorously contested electoral processes in the nation's history. “There were some fifteen hundred official delegates to the twelve state ratifying conventions, where every section of every clause and every phrase of the Constitution was raked over.” And while the voting mandate was restricted throughout the country to free adult males who owned property, several states liberalized their property ownership requirements to allow more men to vote.

The opponents, the Anti-Federalists, understood that the proposed Constitution was favored by many of America's most trusted citizens. To defeat or amend it would require extraordinary exposition. For more than a year the words flowed relentlessly. “Judging from the newspapers,” wrote Madison, “one would suppose that the adversaries were the most numerous and most in earnest.” (Of course, many articles in support of the new Constitution were also published, the most famous being
The Federalist Papers.
)

One of the most articulate opponents, Samuel Bryan, entered the fray in Pennsylvania on October 5, 1787, and his numerous columns, under the name Centinel, were published in newspapers throughout the country. The new government, he wrote, was a means for America's elite (defined in various ways) to impose their views on the rest of America. Through this, America would lose its democratic character, and Americans their liberty. “The proposed plan of government . . . is a most daring attempt to establish a despotic aristocracy among freemen, that the world has ever witnessed.” Despite the claims that the new government was of the people and for the people, it was too complex and, no matter where it was to be located (the federal District of Columbia was not created until 1790), too distant to allow for their participation, at a time well before cars, trains, planes, telegraphs, telephones and e-mails.

Beyond these broad thoughts, the Anti-Federalists had no unifying agenda. “They had no plan whatever,” noted Madison. “They looked no farther than to put a negative on the Constitution and return home.” Nor did they all have the same motives. The Federalist James Wilson caricatured an Anti-Federalist as a self-interested American “who either enjoys, or expects to enjoy, a place of profit under the present establishment.” For some that was surely true. But for many their motivation was as well intentioned as the Federalists. In general, opposition to the proposed Constitution represented a profound fear of its then unique centralization of power, a depersonalizing distancing of government from its citizens and the potential for abuse from both. It is an argument that has recurred repeatedly through American history. Even today Americans debate between Paine's vision of simple government and Madison's complex system of checks and balances.

The goal for most opponents was to stop the proposed transfer of political power from the states to the new national government. They argued against the Constitution in general, as well as against many of its specific provisions. How could liberty be protected over such a large territory? Why was there no “bill of rights” to guard Americans from what the framers themselves had argued was the inevitable tyrannical nature of majorities? Why a single executive, and why make him commander in chief of the army and navy, too? Onward the objections rolled through the vice presidency, the possibility of a standing army, Congress's power to alter the state's power over congressional elections, the power of taxation, the small size of the House of Representatives (only sixty-five members for the entire nation of around three million people, not counting the half million or so slaves), the Senate's power to confirm executive appointees and the requirement that the Senate consent to treaties. Some wanted a new convention, and some wanted to amend the proposed Constitution in various substantive ways. Some wanted amendments before ratification. Others were willing to support ratification if the Federalists promised to support postratification amendments.

Dissenting delegates to Pennsylvania's ratification convention captured broadly most of the Anti-Federalists' concerns. “We dissent because it is the opinion of the most celebrated writers on government, and confirmed by uniform experience, that a very extensive territory cannot be governed on the principles of freedom, otherwise than by a confederation of republics” and because of “the omission of a Bill of Rights, ascertaining and fundamentally establishing those unalienable and personal rights of men, without the full, free, and secure enjoyment of which there can be no liberty, and over which it is not necessary for a good government to have the controul.”