III: The Revolution and the Constitution, 1763-89

The long period of “salutary neglect,” in which Great Britain largely left the colonies to govern themselves, came to an end in 1763. Britain defeated France in the Seven Years War (known as the French-Indian War in America), and acquired an immense North American empire, the problem of administering it, and an enormous war debt. As Englishmen on the two sides of the Atlantic grappled with their new situation, they entered upon a long chain of mutual misunderstandings and recriminations. Within a decade, the British came to see a set of rebellious ingrates. The Americans discerned nothing less than a tyrannical plot to enslave them. All of this brought to light the divergent political and constitutional development of the two sides that had been ignored over the previous century.

Britain’s policy got off to a bad start with the Proclamation of 1763, which forbade the colonists from settling beyond the crest of the Appalachian Mountains. The British feared that aggressive, land-hungry Americans would provoke Indian wars, and wanted to restrain them until they could guarantee military security and civil order. In the American perspective, what was the use of having expelled the French from North America if British Americans could not take advantage of it? Throughout the imperial conflict and for decades after—indeed, up to the American Civil War—the question of the organization and settlement of the vast American West was a paramount problem.

Further aggravating the situation was the British intent to maintain a regular army in America to police the frontier. This raised the specter of “standing armies in time of peace” that was now deeply embedded in the imagination of Anglo-Americans. Moreover, the unwillingness of the British to leave police work to the colonial militia showed the contempt with which the Mother Country viewed the colonial contribution to the recently-concluded war—a contempt which would also lead them to underestimate colonial capacity during the War for Independence, and which was part of the general condescension of the British toward colonial culture.

In addition to an army, the British realized that they would have to establish a more effective administration in the colonies, one that was not dependent, as the royal governors were, on appropriations from the tight-fisted colonial assemblies. They sought to establish a “civil list” of reliable imperial officers. Americans also came to believe that, along with the army and bureaucrats, the British would impose bishops of the Church of England. In theory, the Church of England was the established church in most American colonies; in fact, without bishops, the colonists governed their local churches just as they governed their local governments. Although there were no serious plans to send one, there was probably more alarm and ink spilled over the prospect of an Anglican bishop than over any other issue.

All of these plans would take money, and the conflict erupted as Parliament began to try to get it out of the colonists. The first attempt was the Sugar Act of 1764—a tax on molasses from foreign colonies, molasses being the main ingredient in the American manufacture of rum. The Act in fact lowered the duty on imported molasses, which heretofore American importers had evaded by bribing British customs officials. But the ministry expected to collect a greater revenue at the lower rate. What alarmed the colonists was the purpose of the act. It was not merely an effort to regulate imperial trade, part of the general mercantilist policy pursued by European Empires; rather, it was an attempt to raise revenue, which the colonists believed could not be done without the consent of their assemblies. (Ironically, after the American Constitution gave Congress the power to tax imports, opponents of tariffs would argue just the opposite: that tariffs could be for revenue only, and not to protect domestic manufacturing.) As well, offenders against the law (smugglers) would be prosecuted in Vice-Admiralty courts. These were royal “prerogative courts” that did not follow the rules of common law nor provide jury trials. Americans shared the English belief that non-common law courts were hostile to liberty. In addition, the nearest one was in Halifax.

Parliament’s Stamp Act of 1765 provoked an explosive reaction. It required the payment of a duty for nearly every printed document—newspapers, legal deeds, college diplomas, even playing cards. It was in no way connected to imperial trade; it was an “internal tax” designed to raise revenue. It also fell most heavily upon the most vocal, articulate, and politically active colonists: lawyers and publishers. The British ministry was utterly unprepared for the colonial reaction (as was Benjamin Franklin, the agent for several American colonies in London, who hoped to profit by being a stamp tax collector). Colonists published numerous resolutions and remonstrances against the act, and sent delegates to a Stamp Act Congress, the first effective continental congress. Most important, they organized an economic boycott, refusing to purchase British goods.

As a result of the boycott, English merchants persuaded a new Whig ministry to repeal the Stamp Act in 1766. At the same time, Parliament enacted the Declaratory Act, entitled “An Act to Better Secure the Dependency of His Majesty’s Dominions in America Upon the Crown and Parliament of Great Britain.” It emphatically declared that the King-in-Parliament “had, hath, and of right ought to have, full power and authority to make laws and statutes of sufficient force and validity to bind the colonies and people of America, subjects of the crown of Great Britain, in all cases whatsoever.” In a sense, the whole issue of the imperial conflict rested on this point: sovereignty. In the decades since the Glorious Revolution, the British had come to reject the idea of government limited by higher law. The British remained committed to the political outcome of the Glorious Revolution--the supremacy of Parliament—but overlooked the principles behind it, articulated in the Bill of Rights and Locke’s Second Treatise. William Blackstone signaled this change in his Commentaries on the Law of England. This monumental work of jurisprudence, as widely read in America as in Britain, appeared in the same year as the Stamp Act. In it, Blackstone asserted, “The power and jurisdiction of Parliament [is so] transcendent and absolute, that it cannot be confined, either for causes or persons, within any bounds. It hath sovereign and uncontrollable authority in making, confirming, enlarging, restraining, abrogating, repealing reviving, and expounding of laws, concerning matters of all possible denominations--ecclesiastical, or temporal, civil, military, maritime, or criminal: this being the place where that absolute despotic power, which must in all governments reside somewhere, is entrusted by the constitution of these kingdoms.” If there were natural rights, there was no power above Parliament to define or protect them. This was the spirit of the Declaratory Act, and came close to a complete rejection of constitutionalism.

The Americans, on the other hand, adhered to seventeenth-century constitutionalism and rejected the notion of sovereignty altogether. Boston lawyer James Otis illustrated this when he argued against the Writs of Assistance in 1761. Writs of Assistance were general search warrants, which gave the King’s agents unlimited power to seek out violations of the customs laws. The writs ran in the King’s name, so had to be renewed when George III ascended the throne in 1760. Otis made the case that they were contrary to fundamental principles of justice and violated the rights of Englishmen. “It appears to me the worst instrument of arbitrary power, the most destructive of English liberty and the fundamental principles of law, that ever was found in an English law-book,” Otis claimed. He described it as “a kind of power, the exercise of which in former periods of history cost one king of England his head and another his throne.”

Otis referred to a 1610 decision by Edward Coke the great common law judge and parliamentarian, a leader in the resistance against Stuart absolutism. “In many cases the common law will control the laws of Parliament, and sometimes it will declare them totally void, for when an act of the Parliament is contrary to the law and reason, or incompatible, or impossible to execute, the common law will control it and proceed to declare its nullity.” Otis’ appeal to natural law principles made an impression on another Massachusetts lawyer, John Adams. Though the Americans would appeal to natural rights only as a last resort, preferring to rely on the more concrete bases of their colonial charters and traditional rights as Englishmen, the law of Nature and of Nature’s God always lay behind their resistance to parliamentary sovereignty.

After the repeal of the Stamp Act, the British tried new taxes on imports, on the mistaken assumption (sowed in part by Benjamin Franklin) that the colonists would accept “external taxes.” The Americans refused to pay any duty whose aim was to raise revenue, imposed upon them “without their consent.” The British denied the colonists were being taxed without their consent. Colonists, they said, were represented “virtually” by every member of Parliament. Members of the House of Commons did not represent particular districts, constituencies, or electors; rather, each represented the whole Empire. Americans might not vote for members of Parliament, but neither did nine-tenths of Englishmen. The Americans rejected this concept of “virtual representation.” The interests of one part of England might be represented by a member of Parliament from another part of England, but no Englishman could fairly give the consent of colonists three thousand miles away in hugely different circumstances. This system might be satisfactory to the English, but the Americans were more accustomed to a system of “actual representation,” where the franchise was broad and representatives close to the voters. This is not to say that the colonists rejected the idea of virtual representation altogether: women, children, and propertyless males could be said to be virtually represented by colonial voters. But they had taken a step toward a more fully democratic idea of representation in their rejection of British policy.

Nor did the colonists seek representation in the British Parliament, where they would be outnumbered by British members, in addition to the difficulty of representation across an ocean that still required six weeks to cross at best. In the early stages of the imperial conflict, the Americans tried to limit parliamentary authority to particular, imperial ends—regulation of trade, most notably. This idea, known as the “federal theory of empire,” clashed with the British idea of parliamentary sovereignty, for sovereignty was by definition unlimited and indivisible. The federal theory posited the logically impossible situation of two sovereigns in the same space—an imperium in imperio, or empire within and empire. Thus, the Americans resorted to what was known as the “dominion theory of empire,” wherein their only connection to the British was through the King, to whom each colonial assembly was equal to the London Parliament. There was a logic to this theory, since all the colonial charters had been granted by the King, though historically Parliament had participated in colonial regulation and the Americans had accepted it. The dominion theory was a red flag to English Whigs, for it undermined parliamentary supremacy and might give the King new sources of power in the Empire. But George III remained firmly committed to parliamentary supremacy, and never responded to this temptation. The colonists persisted in this theory, eventually claiming that Parliament had never possessed any legitimate power over the colonies. They had submitted to parliamentary imperial regulations only as a matter of convenience and expediency, but never as a right. Thus the Declaration of Independence is addressed only to the King, and does not even mention Parliament by name.

Economic pressure from the colonies continued to limit British policy, and Parliament repealed all of the new duties except the one on tea by 1773. In that year the ministry, combining an effort to assist the East India Company with its attempt to raise colonial revenue, gave the company a monopoly on tea sales in the American colonies. Radicals in Boston dumped the company’s tea into Boston Harbor in the famous “Boston Tea Party” of December, 1773. Push now came to shove in a sustained way. Parliament responded to the Tea Party with a series of measures known as the Coercive or Intolerable Acts. Most important, they closed the Port of Boston, made General Thomas Gage the governor, and placed severe restrictions on colonial and local self-government.

Along with these acts, Parliament passed the Quebec Act, to organize the North American territory won from France in 1763. It included in the colony of Quebec all of the land north of the Ohio River. It provided no representative assembly (the French inhabitants had never had one), and allowed the colonists to support the Roman Catholic Church. It also continued French civil law, though it imposed the English common law of crimes. Though unrelated to the Coercive Acts, it appeared to the colonists as part of that punitive effort and a further step in the conspiracy to destroy their liberties. It touched the most passion-provoking of issues, religion. It evinced a pattern of continental absolutism, of “popery and arbitrary government.” In the colonial imagination, they were fighting the English Civil War or Glorious Revolution all over again, defending representative government and Protestantism. Many in the British government saw it likewise—the Massachusetts rebels being the very descendants of the republicans and Puritans who had decapitated Charles I.

But there was deep support for Massachusetts outside of the colony. In September, 1774, colonies sent delegates to the First Continental Congress. They rejected Pennsylvanian Joseph Galloway’s proposal for an explicit constitutional definition of the Empire. Galloway’s plan sketched a federal system, in which each colony would retain “its present constitution and powers of regulating and governing its own internal police.” For common, imperial matters, it envisioned a President General, appointed by the King, and a Grand Council, chosen by the colonial legislatures. Their body was to be “an inferior and distinct branch of the British legislature,” whose acts would require the assent of Parliament. Instead, the Congress endorsed the grievances of the Bostonians (the Suffolk Resolves), and adopted a continental statement of colonial complaints and rights. The Congress repeated the many grievances of the colonists and the grounds for their rights that had been developing over the past decade. They claimed a right to self-government, particularly consent to taxation, as a natural and God-given right, as their right as Englishmen, and explicitly stated in their colonial charters. In addition, Congress claimed that the toil and sacrifice of their ancestors, who had founded the colonies, gave them a title to self-rule. They complained of the statement of parliamentary sovereignty in the Declaratory Act, of the recent Intolerable Acts, the Quebec Act, and of the curtailment of legislative and judicial independence. But they abjured any desire for independence and claimed to act only in self-defense.

Even after armed conflict began in April, 1775, the Americans were reluctant to take the step to independence. In July the Second Continental Congress issued the “Declaration of the Causes and Necessity of Taking Up Arms,” while simultaneously appealing to the King in the “Olive Branch Petition,” on the belief that George III was being misled by wicked ministers. But the King and ministry were united to settle the controversy by force. Over the winter of 1775-76 a series of atrocities by British troops, together with the radical argument of Thomas Paine in his best-selling pamphlet, Common Sense, shifted American sentiment toward independence as well as toward republican government.

In the summer of 1776, realizing that they could not successfully defend their rights without foreign (particularly French) assistance, and that no foreign power would assist unless they declared independence, the Congress appointed a committee to draft a declaration. This document is the cornerstone of American national identity and the foundation of the Constitution. Thomas Jefferson, the principal draftsman of the declaration, claimed that he had written nothing original, but merely expressed “the common sense of the subject” among his contemporaries. In a sense, this was no undue modesty; the Declaration of Independence was largely a reprise and extension of earlier colonial statements. It is addressed to all mankind, and begins its argument with an appeal to the rights of man. In its most famous part, the second paragraph, it reiterates the theory of natural rights, largely from John Locke. “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their creator with certain unalienable rights, that among these are life, liberty, and the pursuit of happiness.” It asserts the right to revolution when a people suffer tyrannical government, and denounces “the present king of Great Britain” as such a tyrant.

The bulk of the Declaration, usually overlooked, is a list of specific grievances, complaints that the King has violated not only the natural rights of the colonists, but the particular, historical rights of Englishmen. Most of these had to do with the abuse of executive power by the King and his governors, subordinating the rights of colonial legislatures and judiciaries. In keeping with the Dominion Theory of Empire, the Declaration does not so much as mention Parliament by name, instead noting that the King “has combined with others to subject us to a jurisdiction foreign to our Constitution, and unacknowledged by our laws; giving his assent to their acts of pretended legislation.” Several acts of Parliament were then denounced, summarized in the Declaratory Act. It also called attention to concrete rights expressed in their charters, as well as “the circumstances of our emigration and settlement here,” the other commonly cited sources of colonial rights.

Next, the Declaration condemns the recent atrocities of the King’s armed forces— the burning of Norfolk, Virginia and Falmouth (today Portsmouth, Maine). The Declaration also denounced Virginia Governor Dunmore’s promise to slaves that they would gain their freedom if they rose up against their masters (euphemistically put, “He has excited domestic insurrections amongst us”), and the use of mercenaries and Indians—“the merciless Indian savages, whose known rule of warfare is an undistinguished destruction of all ages, sexes, and conditions.” Jefferson’s original draft of the Declaration contained a bold attack on the institution of slavery, attempting to blame the English government for imposing it on the colonists, but this was edited out by the Congress.

Finally, the Americans lament that their appeals to their erstwhile English brethren have gone unnoticed, and that the American people, now “free and independent states,” would regard the English “as we hold the rest of mankind, enemies in war, in peace, friends.” The Declaration of Independence was a kind of social contract for the American people, a statement of fundamental principles of right and justice. But it did not provide a form of government, nor answer the question of what the colonies’ relations to one another would be. It declared the creation of “one people,” yet announced them as “free and independent states.” The “imperial question” of the relationship of the colonies to Britain would now become the “federal question” of their relationship to one another.

The Continental Congress now directed the states to revise their constitutions in accord with their new condition of independence, and also began to consider a continental constitution. The years from 1776 to 1789 were the greatest constitution-making period in human history.

The starting point for the state constitution-makers was republicanism. Republicanism had a broad range of meanings, but at the fundamental constitutional level it meant a government that derived its powers solely from the people, without any aristocratic or monarchical elements. Eighteenth century political science regarded pure republics as unsound: they were prone to faction and demagoguery, volatile and ephemeral. As ancient models of the Greeks showed, they rapidly consumed themselves in civil war or became prey to foreign powers. The fatal problem of republics was that they depended on the virtue of the people—their willingness to sacrifice their private interests for the public good. But the bold step toward independence caused the Americans to undertake a new experiment in republican government. The English constitutional model of mixed government, composed of King, Lords, and Commons, was now denounced as the source of the corruption and oppression from which they had escaped. The flush of revolution convinced many Americans that they possessed the virtue that could make republican government succeed.

In accord with republican principles, states made their constitutions more responsive to the people. The most radical of them, Pennsylvania’s, did away with its upper house and relied on a unicameral legislature. They broadened the suffrage, lowering property qualifications. By the end of the century, Maryland became the first polity in history to provide universal male suffrage; even women (with property) could vote under New Jersey’s revolutionary constitution, which made no sex qualification. Annual elections would keep legislators in touch with the people, and legislatures were reapportioned to make representation more equal. Governors had fewer powers, being seen as monarchical. Pennsylvania’s constitution provided for a plural executive, a committee of delegates from each county. Rejecting the theory of “mixed government,” the state constitutions strove for “separation of powers,” wherein the executive would not influence legislation, for this was the mechanism of corruption in the English system. Not every state went as far as Pennsylvania—Connecticut and Rhode Island, for example, simply removed references to the King from their seventeenth century corporation charter and carried on as usual. But there was on the whole a democratic tendency in the revolutionary era.

Politics under the state constitutions confirmed many of the historical fears of republican government. The fundamental problem was that the legislatures possessed overwhelming power and began to act in an unrestrained fashion. As James Madison put it in Federalist 48, “The legislative department is everywhere extending the sphere of its authority and drawing all power into its impetuous vortex.” Legislatures were unchecked by the state constitutions, because they had written them themselves. Before the Massachusetts constitution of 1780, there was an imperfect sense that a constitution was a “higher law,” the work of the people, created outside of, and superior to, the legislature. In several cases where state judges attempted to protect rights against legislative encroachment—usually involving judicial process and jury trials—they were intimidated by overweening legislators. The most common abuse by legislative power involved property rights. The United States endured an economic depression after the War for Independence, and there was pressure from distressed debtors for relief. The legislatures responded with a variety of devices, inflationary paper money laws especially, that many regarded as violations of private, contractual rights and attempts to use force of numbers to redistribute the wealth. More generally, the laws of the states changed rapidly, sensitive to shifts in public opinion, and this further undermined the security of private rights.

At the same time, the national or continental government was even more defective. The Articles of Confederation were not ratified until 1781. While not completely feckless—it was able to arrange the Treaty of Paris in 1783 and the Northwest Ordinance in 1787—its main value was to provide an object lesson and experience for later constitution-makers. If the main defect of the state constitutions was that they were too close to the people, the Articles’ main weakness was that it was not connected to the people at all. In short, it was not a genuinely republican government, and therefore lacked the essential element of legitimacy. Rather, the Articles established what it called “a firm league of friendship” among the states. The document was entitled “Articles of Confederation and Perpetual Union,” implying unity, but was formed “between the states of New Hampshire, Massachusetts Bay, Rhode Island….,” emphasizing their independence. Article 2 stated quite clearly, “Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this confederation expressly delegated to the United States.”

The state legislatures chose and controlled the delegates to the Congress, and each state had equal voting power. The powers surrendered by the states and granted to Congress principally involved diplomacy, but there was no real basis for national power. The Congress lacked any revenue of its own; it could only request money from the states, and relied on the state to collect the requisitions. Its executive was amorphous; a committee of delegates had power to act when the whole Congress was not assembled. It provided for a complicated judicial process to settle disputes among states, but it was never used. Most important decisions required the assent of nine of thirteen states, and amendment required the unanimous consent of all state legislatures.

Consequently, paralysis usually characterized the government. The weakness of the Confederation made it impossible for the United States to “assume among the powers of the earth the separate and equal station to which the laws of Nature and of Nature’s God entitle them.” It was unable to pay its debts. It could not compel the British to fulfill their promises under the Treaty of Paris, in part because it could not compel the states to fulfill theirs. Nor could the Congress secure a commercial treaty with Britain, nor prevent Spain from using its control of the Mississippi River against the Untied States. It was similarly powerless to stop the states from discriminating against one another in commerce. In the winter of 1787, debtor farmers in the western part of Massachusetts broke out in rebellion (Shays’ Rebellion)—largely because the state constitution of 1780 did not produce the kind of legislative populism seen in other states—and the national government could render no assistance.

By this time there was considerable sentiment for serious constitutional reform. There was widespread consensus that the Articles needed strengthening for the sake of national unity and independence. Several states had already undertaken constitutional reforms: the Massachusetts constitution of 1780 provided an alternative to the radical republicanism of earlier constitutions. The devices of “mixed government,” called “checks and balances” in a republican setting, made a comeback. The value of bicameralism as a means of improving legislative deliberation and the utility of gubernatorial power also increased. In several states, judges attempted to hold legislatures to the written constitution, in cases that presaged judicial review. Massachusetts introduced the important feature of a special constitutional convention, a body of delegates elected by the people to draft the constitution, apart from the legislature, and a convention to ratify the document.

After an effort by several states to negotiate common rules for commerce on the Chesapeake Bay, the Continental Congress called for all of the states to send delegates to a Philadelphia Convention to devise “alterations and provisions [to the Articles] as shall… render the federal Constitution adequate to the exigencies of government and the preservation of the Union.” Twelve states (Rhode Island demurred) sent fifty-five delegates who began work in May of 1787.

The agenda was set by the Virginia delegation, which proposed a set of resolutions that would have radically consolidated national power. It included a bicameral legislature, in which representation in both houses would be apportioned according to population. It would have power “to legislate in all cases to which the separate states are incompetent, or in which the harmony of the United States may be interrupted by the exercise of individual legislation; to negative all laws passed by the several states… and to call forth the force of the Union against any member of the union failing to fulfill its duty under the articles thereof.” It provided for a parliamentary executive, chosen by the legislature, and a council of revision, to include the executive and national judges, to review acts of Congress. It called for a higher authority, outside of the Congress, to enact future amendments, and proposed that the people in special conventions should ratify the amendments that they proposed.

Delegates from the less populous states knew that such a plan could never be accepted back home, and so made a counter-proposal, known as the New Jersey Plan. Rather than the sweeping grant of legislative power that the Virginians sought, it granted specific powers to the old Confederation, specifically that of raising revenue by tariffs. Most important, it would retain the equal power of states in the national legislature. The genuine desire of the small-state men for a real national government was evident in their sixth resolution, that “all acts of the United States in Congress… and all treaties made and ratified under the authority of the United states, shall be the supreme law of the respective states… and that the judiciary of the several states shall be bound thereby in their decision, any think in the respective laws of the individual states to the contrary notwithstanding,” and allowing the national executive to use armed force to compel recalcitrant states or individuals. This would be incorporated into the Constitution as the “supremacy clause,” one of the most important bases of national power.

The question of the structure of the national legislature provoked the widest disagreement at the convention. The populous states sought a legislature elected directly by the people, apportioned by population. The small states wanted what the Articles of Confederation provided, equal state representation chosen by the legislatures. The deadlock was broken by the Great Compromise. The House of Representatives reflected the wishes of the large states, being elected by the people according to population. The Senate was essentially the old Confederation Congress—equal state representation chosen by the state legislatures. This was the primary foundation of the Constitution as a federal system. With the lower house elected directly by the people, the new government was now genuinely republican, and thus promised to be more effective. Bicameralism would provide for more mature and deliberate consideration than in the annually elected state legislatures. Senators especially, with six-year terms and indirect election, would be insulated from public opinion. Moreover, the interests of the states would be protected by the upper chamber.

The Congress was granted a number of specific powers in Article I, section 8, including the power to tax and to regulate interstate commerce. Some were pointedly specific, such as the power “to provide for the punishment of counterfeiting the securities and current coin of the United States.” But it was also granted the power “to make all laws which shall be necessary and proper for carrying into execution the foregoing powers”—the so-called “elastic” or “necessary and proper” clause. The question of how strictly the enumerated powers should be read would be a crucial issue in the ratification debate, and for years thereafter. While certain powers were explicitly withheld from Congress in Article I, section 9, the implication of the document was that all powers not granted in the Constitution were withheld. The states, on the other hand, gave up specific powers in Article I, section 10—the usual ones having to do with foreign policy, but also the power to “make anything but gold and silver coin a tender in the payment of debts” and to “pass any law impairing the obligation of contracts,” in order to curtail state violations of property rights. Here the implication was that states reserved all powers not granted to Congress or foresworn by the states in the Constitution. In other words, the states remained general governments, with the “police power”—the general power to legislate on matters of safety, health, welfare, and morals. The national government’s powers were limited to the ends and objects specified in the Constitution. This would be reiterated explicitly in the Tenth Amendment.

Several specific policy matters produced compromises in the document. States wary of Congress’ power over imports and exports allowed it to impose tariffs by a simple majority vote, but won a prohibition on taxes on exports. Treaties required a two-thirds vote in the Senate for ratification. Slavery posed several moral and political problems for the convention. Antislavery men were reluctant to recognize the institution, and thus the words “slave” and “slavery” were not used in the Constitution. Slaves were referred to as “persons held to service or labor in one state, under the laws thereof.” Congress was forbidden to end the international slave trade for twenty years, a provision that was unamendable before then. The enumeration of slaves for purposes of representation and taxation posed another problem. Northerners would have liked to count them for taxation but not representation, while southerners would have liked to count them for representation but not taxation. In the end, five slaves were counted as three persons when representation in the House and direct taxes were apportioned. This provision greatly augmented the power of the slave states and did them no harm, since direct taxes were almost never levied--the southern states gained extra representation, but never paid extra taxes, on account of their slaves. Finally, the Constitution provided that fugitive slaves would be returned to their owners, although it did not specify how or by whom the return would take place. The antislavery framers of the Constitution believed that slavery was a declining institution, and that the problem would take care of itself. In the meantime, they made what compromises they must in order to keep the union together, lest the hope of liberty for anyone be lost.

The Constitution provided for a strong executive--a single president, with power to veto bills, make appointments, and issue pardons. He was to serve a four-year term, could be re-elected without limit, but could be impeached and removed by Congress. The chief problem regarding the office was the mode of selection. Thus Article II outlined a complex process where the president would be elected indirectly, by an electoral college, a body of men chosen however the state legislatures might direct. The college was also a federal institution, weighted to give more power to the smaller states. If anyone failed to garner a majority of electoral votes, the president would be chosen by the House of Representatives. This process was even more federalized than the electoral college, with each state casting one vote. And it was widely expected that, after George Washington, few men would be able to win wide enough support to be elected by the college, and that most would be chosen by the House. National political parties eventually made regular first-ballot elections the norm. The Constitution provided for a separate and independent judicial branch. It provided for a Supreme Court, and “such inferior courts as Congress may from time to time ordain and establish.” The justices and judges would be appointed by the President, with the approval of the Senate; they would enjoy life tenure “during good behavior,” and their salaries could not be reduced. Article III offered a potentially enormous grant of judicial power, defining the jurisdiction of the federal courts as extending “to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made under their authority,” including all controversies between citizens of different states. On the other hand, the composition of the lower courts was left entirely to Congress—it might ordain and establish none at all. The Constitution also narrowly limited the original jurisdiction of the only court that it required (the Supreme Court), and allowed Congress to control its appellate jurisdiction. There was thus a vast range between the potential power of the federal judiciary and the actual power that Congress might grant.

The convention also provided an amendment process. Two thirds of the Congress or two-thirds of the states could propose amendments, which would be ratified by three-fourths of the states, either by legislatures or by special conventions. All amendments turned out to be proposed by Congress, and all but one (the Twenty-First) ratified by the legislatures. This provision was particularly important because it allowed the advocates of the Constitution (the Federalists) to assuage their opponents (the Antifederalists) by promising that defects in the document could be amended. This was especially useful with regard to the Antifederalist complaint that the Constitution lacked a Bill of Rights.

When the convention finished its work in September, 1787, it submitted the document to the Confederation Congress. If there was any merit to the charge that the convention had acted illegally, writing a whole new Constitution instead of simply amending the Articles, it made little impression on the Congress whose powers the convention had allegedly usurped. The Congress submitted the document to the state legislatures, who had the option of calling for ratification conventions to approve it. Every state legislature but Rhode Island did so and all but one of these conventions (North Carolina) ratified the Constitution within a year.

The most serious complaint by the Antifederalists was that the United States was too vast a territory to be governed as a republic. Republics had to be small and relatively homogenous, with their governments close to the people. A country like the United States could only be ruled as an empire. If the Antifederalists had won this argument, the Constitution would have been defeated, for republicanism remained the touchstone of American politics in 1787. But James Madison explained that the size of America would actually improve republican government. In Federalist 10, Madison argued that the great defect of republics was faction, or self-seeking interest groups, and majority tyranny, as seen in many American states. Tyrannical majorities were more easily assembled in small settings; it would be much more difficult to put together a majority faction in a larger country. “Extend the sphere, and you take in a greater variety of parties and interests; you make it less probably that a majority of the whole will have a common motive to invade the rights of other citizens,” he wrote. “In the extent and proper structure of the Union, therefore, we behold a republican remedy for the diseases most incident to republican government.” Much in the same way that Madison saw religious pluralism preventing sectarian oppression, or in the way that Adam Smith saw self-interested economic behavior making everyone more prosperous, Madison argued that the vices of republicanism could be turned against themselves for the common good. And the American political system, if it could not dispense with the need for public virtue altogether, at least would depend on it to a less dangerous degree. Madison’s argument underscored the fact that America would be a modern, liberal, commercial republic.

In the Federalist Papers and other local venues of debate, the Federalists were able to convince the people that the Constitution would provide a government strong enough to protect rights, but not so strong as to overwhelm them. They also promised that the First Congress would propose a Bill of Rights to amend the Constitution. The Federalists on occasion had to resort to strong-arm tactics, as in getting the Pennsylvania legislature to call a ratification convention, and it is true that only a minority of American adults could vote for delegates to the conventions, but the United States Constitution was the most democratically debated and ratified national document in the history of the world to that point. For behind the debate were deeply held national principles that united Federalist and Antifederalist, and enabled the parties to work together after the ratification conflict. These principles had developed out of English seeds and grown in colonial soil before the Revolution. They flowered in the Declaration of Independence and state constitutions, and the Constitution is best understood as pruning and preserving them.

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