Module 2
The Constitution
A. The Problem of Liberty
When the Constitutional Convention was held in Philadelphia in 1787, its
members were all white men. They were not chosen by popular election, and a few
famous men, such as Patrick Henry of Virginia, refused to attend. One state, Rhode
Island, sent no delegates at all. They assembled in secret and there was no press coverage.
The delegates met to remedy the defects of the Articles of Confederation, under which
the rebellious colonies had been governed; but instead of fixing the Articles, they wrote
an entirely new constitution. Then they publicized it and said that it would go into effect
once it had been ratified—not by state legislatures, but by popular conventions in at least
nine states.
Suppose you think we should have a new constitutional convention to remedy
what you and others think are defects in the present document. As you will see later in
this chapter, opinions about how our Constitution might be improved are quite diverse.
Some critics want the Constitution to create an American version of the parliamentary
system of government one finds in the United Kingdom. Others would rather that it
weaken the federal government—for example, by requiring that the budget be balanced
or setting a limit on tax revenue each year.
The goal of the American Revolution was liberty. It was not the first revolution
with that object (nor was it the last), but it was perhaps the clearest case of a people
violently altering the political order, simply to protect their liberties. Subsequent
revolutions had more complicated or utterly different objectives. The French Revolution
in 1789 sought not only liberty, but “equality and fraternity.” The Russian Revolution
(1917) and the Chinese Revolution (culminating in 1949) chiefly sought equality and
were scarcely concerned with liberty as we understand it.
Slowly but surely opinion shifted. By the time war broke out in 1775, a large
number of colonists (though perhaps not a majority) had reached the conclusion that the
colonies would have to become independent of Great Britain if their liberties were to be
assured. The colonists had many reasons for regarding independence as the only solution,
but one is especially important: they no longer had confidence in the English constitution.
This constitution was not a single document, but rather a collection of laws, charters, and
traditional understandings that proclaimed the liberties of British subjects. In the eyes of
the colonists, these liberties were violated regularly, despite their constitutional
protection. Clearly, then, the English constitution was an inadequate check on the abuses
of political power. The revolutionary leaders sought an explanation of the constitution’s
insufficiency, and they found it in human nature.
“A lust for domination is more or less natural to all parties,” one colonist wrote.1
Men will seek power, many colonists believed, because they are ambitious, greedy, and
easily corrupted. John Adams denounced the “luxury, effeminacy, and venality” of
English politics; Patrick Henry spoke scathingly of the “corrupt House of Commons”;
and Alexander Hamilton described England as “an old, wrinkled, withered, worn-out
hag.”2 This was in part flamboyant rhetoric designed to whip up enthusiasm for the
conflict, but it was also deeply revealing of the colonial mindset. Their belief that English
politicians—and, by implication, most politicians in general—tended to be corrupt was
the colonists’ explanation of why the English constitution was not an adequate guarantee
of the liberty of the citizens. This opinion was to persist and, as we shall see, profoundly
affect the way the Americans went about designing their own governments.
The liberties the colonists fought to protect were, they thought, widely
understood. They were based not on the generosity of the king or the language of statutes
but on a “higher law” embodying “natural rights” that were ordained by God,
discoverable in nature and history, and essential to human progress. These rights, John
Dickinson wrote, are “born with us; exist with us; and cannot be taken away from us by
any human power.”3 There was general agreement that the essential rights included life,
liberty, and property long before Thomas Jefferson wrote them into the Declaration of
Independence. (Jefferson changed “property” to “the pursuit of happiness,” but almost
everybody else went on talking about property.)
What almost no one recalls, but which are an essential part of the Declaration, are
the next 27 paragraphs, in which Jefferson listed, item by item, the specific complaints
the colonists had against George III and his ministers. None of these items focused on
social or economic conditions in the colonies; all spoke instead of specific violations of
political liberties. The Declaration was in essence a lawyer’s brief, prefaced by a stirring
philosophical claim that the rights being violated were unalienable—that is, based on
nature and Providence, and not on the whims or preferences of people. Jefferson, in his
original draft, added another complaint—that the king had allowed the slave trade to
continue and was inciting slaves to revolt against their masters. Congress, faced with so
contradictory a charge, instead decided to include a muted reference to slave
insurrections and omit all reference to the slave trade.
The Revolution was more than the War of Independence. It began before the war,
continued after it, and involved more than driving out the British army by force. The real
Revolution, as John Adams explained afterward in a letter to a friend, was the “radical
change in the principles, opinions, sentiments, and affections of the people.”4 This
radical change had to do with a new vision of what could make political authority
legitimate and personal liberties secure. Government by royal prerogative was rejected;
instead, legitimate government would require the consent of the governed. Political
power could not be exercised on the basis of tradition, but only as a result of a direct
grant of power contained in a written constitution. Human liberty existed before
government was organized, and government must respect that liberty. The legislative
branch of government, in which the people were directly represented, should be superior
to the executive branch.
Written constitutions, representatives, and bills of rights are so familiar to us now
that we don’t realize how bold and unprecedented those innovations were in 1776.
Indeed, many Americans did not think they would succeed; such arrangements either
would be so strong that they would threaten liberty or so weak that they would permit
chaos. The 11 years that elapsed between the Declaration of Independence and the
signing of the Constitution in 1787 were years of turmoil, uncertainty, and fear. George
Washington headed a bitter, protracted war effort without anything resembling a strong
national government to support him. The supply and financing of his army were based on
a series of hasty improvisations, most dministered badly and few supported adequately by
the fiercely independent states. When peace came, many parts of the nation were a
shambles. At least a quarter of New York City was in ruins, and many other communities
were nearly devastated. Though the British lost the war, they still were powerful on the
North American continent, with an army available in Canada (where many Americans
loyal to Britain had fled) and a large navy at sea. Spain claimed the Mississippi River
Valley and occupied what are now Florida and California. Men who had left their farms
to fight came back to discover themselves in debt with no money and heavy taxes. The
paper money printed to finance the war was now virtually worthless.
The 13 states had formed only a faint semblance of a national government with
which to bring order to the nation. The Articles of Confederation, which went into effect
in 1781, created little more than a “league of friendship” that could not levy taxes or
regulate commerce. Each state retained its sovereignty and independence, each state
(regardless of size) had one vote in Congress, 9 (of 13) votes were required to pass any
measure, and the delegates who cast these votes were picked and paid for by the state
legislatures. Congress did have the power to make peace, and thus it was able to ratify a
treaty with England in 1783. It could coin money, but there was precious little to coin; it
could appoint key army officers, but the army was small and depended for support on
independent state militias; it was allowed to run the post office, then, as now, a thankless
job that no one else wanted. In 1785, John Hancock was elected to the meaningless office
of “president” under the Articles and never showed up to take the job. Several states
claimed the unsettled lands in the West, and they occasionally pressed those claims with
guns. Pennsylvania and Virginia went to war near Pittsburgh, and Vermont threatened to
become part of Canada. There was no national judicial system to settle these or other
claims among the states. To amend the Articles of Confederation, all 13 states had to
agree.
Many of the leaders of the Revolution, such as George Washington and
Alexander Hamilton, believed a stronger national government was essential. They
lamented the disruption of commerce and travel caused by the quarrelsome states and
deeply feared the possibility of foreign military intervention, with England or France
playing one state off against another. A small group of men, conferring at Washington’s
home at Mount Vernon in 1785, decided to call a meeting to discuss trade regulation.
That meeting, held at Annapolis, Maryland, in September 1786, was not well attended
(no delegates arrived from New England), and so another meeting, this one in
Philadelphia, was called for the following spring—in May 1787—to consider ways of
remedying the defects of the Confederation.
B. The Constitutional Convention
The delegates assembled at Philadelphia at the Constitutional Convention, for
what was advertised (and authorized by Congress) as a meeting to revise the Articles;
they adjourned four months later, having written a wholly new constitution. When they
met, they were keenly aware of the problems of the confederacy, but far from agreement
as to what should be done about those problems. The protection of life, liberty, and
property was their objective in 1787, as it had been in 1776, but they had no accepted
political theory that would tell them what kind of national government, if any, would
serve that goal.
They had read ancient and modern political history, only to learn that nothing
seemed to work. James Madison spent a good part of 1786 studying books sent to him by
Thomas Jefferson, then in Paris, in hopes of finding some model for a workable
American republic. He took careful notes on various confederacies in ancient Greece and
on the more modern confederacy of the United Netherlands. He reviewed the history of
Switzerland and Poland and the ups and downs of the Roman republic. He concluded that
there was no model; as he later put it in one of the Federalist papers, history consists only
of beacon lights “which give warning of the course to be shunned, without pointing out
that which ought to be pursued.”5 The problem seemed to be that confederacies were too
weak to govern and tended to collapse from internal dissension, whereas all stronger
forms of government were so powerful as to trample the liberties of the citizens.
Madison and the others did not need to consult history, or even the defects of the
Articles of Confederation, for illustrations of the problem. These could be found in the
government of the American states at the time. Pennsylvania and Massachusetts
exemplified two aspects of the problem. The Pennsylvania constitution, adopted in 1776,
created the most radically democratic of the new state regimes. All power was given to a
one-house (unicameral) legislature, the Assembly, the members of which were elected
annually for one-year terms. No legislator could serve more than four years. There was
no governor or president, only an Executive Council that had few powers. Thomas Paine,
whose pamphlets had helped precipitate the break with England, thought the
Pennsylvania constitution was the best in America, and in France philosophers hailed it
as the very embodiment of the principle of rule by the people. Though popular in France,
it was a good deal less popular in Philadelphia. The Assembly disenfranchised the
Quakers, persecuted conscientious objectors to the war, ignored the requirement of trial
by juries, and manipulated the judiciary.6 To Madison and his friends, the Pennsylvania
constitution demonstrated how a government, though democratic, could be tyrannical as a
result of concentrating all powers into one set of hands.
But if the government of Pennsylvania was thought too strong, that of
Massachusetts seemed too weak despite its “conservative” features. In January 1787, a
group of ex–Revolutionary War soldiers and officers, plagued by debts and high taxes
and fearful of losing their property to creditors and tax collectors, forcibly prevented the
courts in western Massachusetts from sitting. This became known as Shays’s Rebellion,
after one of the officers, Daniel Shays. The governor of Massachusetts asked the
Continental Congress to send troops to suppress the rebellion, but it could not raise the
money or the manpower. Then he turned to his own state militia, but discovered he did
not have one. In desperation, private funds were collected to hire a volunteer army, which
marched on Springfield and, with the firing of a few shots, dispersed the rebels, who fled
into neighboring states.
Shays’s Rebellion, occurring between the aborted Annapolis and the coming
Philadelphia Conventions, had a powerful effect on opinion. Delegates who might have
been reluctant to attend the Philadelphia meeting, especially those from New England,
were galvanized by the fear that state governments were about to collapse from internal
dissension. George Washington wrote a friend despairingly: “For God’s sake, if they [the
rebels] have real grievances, redress them; if they have not, employ the force of
government against them at once.”7 Thomas Jefferson, living in Paris, took a more
detached view: “A little rebellion now and then is a good thing,” he wrote. “The tree of
liberty must be refreshed from time to time with the blood of patriots and tyrants.”8
Though Jefferson’s detachment might be explained by the fact that he was in Paris and
not in Springfield, others, like Governor George Clinton of New York, shared the view
that no strong central government was required. (Whether Clinton would have agreed
about the virtues of spilled blood, especially his, is another matter.)
The Philadelphia Convention attracted 55 delegates, of whom only about 30
participated regularly in the proceedings. One state, Rhode Island, refused to send
anyone. The convention met during a miserably hot Philadelphia summer, with the
delegates pledged to keep their deliberations secret. The talkative and party-loving
Benjamin Franklin was often accompanied by other delegates to make sure that neither
wine nor his delight in telling stories would lead him to divulge delicate secrets.
Those who attended were for the most part young (Hamilton was 30; Madison,
36) but experienced. Eight delegates had signed the Declaration of Independence, 7K had
been governors, 34 were lawyers and reasonably well-to-do, a few were wealthy. They
were not “intellectuals,” but men of practical affairs. Thirty-nine had served in the
ineffectual Congress of the Confederation; a third of all delegates were veterans of the
Continental Army. Some names made famous by the Revolution were conspicuously
absent. Thomas Jefferson and John Adams were serving as ministers abroad; Samuel
Adams was ill; Patrick Henry was chosen to attend but refused, commenting that he
“smelled a rat in Philadelphia, tending toward monarchy.”
The key men at the convention were an odd lot. George Washington was a very
tall, athletic man who was the best horseman in Virginia and who impressed everyone
with his dignity, despite decaying teeth and big eyes. James Madison was the very
opposite: quite short with a frail body, and not much of an orator, but possessed of one of
the best minds in the country. Benjamin Franklin, though old and ill, was the most
famous American in the world as a scientist and writer, and always displayed shrewd
judgment, at least when sober. Alexander Hamilton, the illegitimate son of a French
woman and a Scottish merchant, had so strong a mind and so powerful a desire that he
succeeded in everything he did, from being Washington’s aide during the Revolution to
serving as a splendid secretary of the treasury during Washington’s presidency.
Unlike his English rival, Thomas Hobbes, Locke did not believe that an all-
powerful government was necessary or that democracy was impossible. Hobbes had
argued that in any society without an absolute, supreme ruler there is bound to be
ceaseless violent turmoil—a “war of all against all.” Locke disagreed. In a “state of
nature,” Locke argued, all men cherish and seek to protect their life, liberty, and property.
But in a state of nature—that is, a society without a government— the strong can use
their liberty to deprive the weak of their own liberty. The instinct for self-preservation
leads people to want a government that will prevent this exploitation. But if the
government is not itself to deprive its subjects of their liberty, it must be limited. The
chief limitation, he said, should derive from the fact that it is created, and governs, by the
consent of the governed. People will not agree to be ruled by a government that threatens
their liberty; therefore, the government to which they freely choose to submit themselves
must be a limited government designed to protect liberty.
The resolution of political issues, great and small, often depends crucially on how
the central question is phrased. The delegates came to Philadelphia in general agreement
that the Articles of Confederation contained defects that ought to be remedied. Had they,
after convening, decided to make their business that of listing these defects and debating
alternative remedies for them, the document that emerged would in all likelihood have
been very different from what in fact was adopted. But immediately after the convention
had organized itself and chosen Washington to be its presiding officer, the Virginia
delegation, led by Governor Edmund Randolph but relying heavily on the draftsmanship
of James Madison, presented to the convention a comprehensive plan for a wholly new
national government. The plan quickly became the major item of business at the meeting;
it, and little else, was debated for the next two weeks.
When the convention decided to make the Virginia Plan its agenda, it had
fundamentally altered the nature of its task. The business at hand was not to be the
Articles and their defects, but rather how one should go about designing a true national
government. The Virginia Plan called for a strong national union organized into three
governmental branches: the legislative, executive, and judicial. The legislature was to
comprise two houses, the first elected directly by the people and the second chosen by the
first house from among the candidates nominated by state legislatures. The executive was
to be chosen by the national legislature, as were members of a national judiciary. The
executive and some members of the judiciary were to constitute a “council of revision”
that could veto acts of the legislature; that veto, in turn, could be overridden by the
legislature. There were other interesting details, but the key features of the Virginia Plan
were two: (1) a national legislature would have supreme powers on all matters on which
the separate states were not competent to act, as well as the power to veto any and all
state laws; and (2) at least one house of the legislature would be elected directly by the
people.
As the debate continued, the representatives of New Jersey and other small states
became increasingly worried that the convention was going to write a constitution in
which the states would be represented in both houses of Congress on the basis of
population. If this happened, the smaller states feared they would always be outvoted by
the larger ones, and so, with William Paterson of New Jersey as their spokesman, they
introduced a new plan. The New Jersey Plan proposed to amend, not replace, the old
Articles of Confederation. It enhanced the power of the national government (though not
as much as the Virginia Plan), but it did so in a way that left the states’ representation in
Congress unchanged from the Articles—each state would have one vote. Thus not only
would the interests of the small states be protected, but Congress itself would remain to a
substantial degree the creature of state governments.
With the tide running in favor of a strong national government, the supporters of
the small states had to shift their strategy. They now began to focus their efforts on
ensuring that the small states could not be outvoted by the larger ones in Congress. One
way was to have the members of the lower house elected by the state legislatures rather
than the people, with each state getting the same number of seats rather than seats
proportional to its population. The debate was long and feelings ran high, so much so that
Benjamin Franklin, the oldest delegate present (at 81 years of age), suggested that each
day’s meeting begin with a prayer. It turned out that the convention could not even agree
on this: Hamilton is supposed to have objected that the convention did not need “foreign
aid,” and others pointed out that the group had no funds with which to hire a minister.
And so the argument continued.
Finally, a committee was appointed to meet during the Fourth of July holidays to
work out a compromise, and the convention adjourned to await its report. Little is known
of what went on in that committee’s session, though some were later to say that Franklin
played a key role in hammering out the plan that finally emerged. That compromise, the
most important reached at the convention, and later called the Great Compromise (or
sometimes the Connecticut Compromise), was submitted to the full convention on July 5
and debated for another week and a half. The debate might have gone on even longer, but
suddenly the hot weather moderated, and Monday, July 16, dawned cool and fresh after a
month of misery. On that day, the plan was adopted: five states were in favor, four were
opposed, and two did not vote.
The Great Compromise reconciled the interests of small and large states by
allowing the former to predominate in the Senate and the latter in the House. This
reconciliation was necessary to ensure that a strong national government would receive
support from small as well as large states. It represented major concessions on the part of
several groups. Madison, for one, was deeply opposed to the idea of having the states
equally represented in the Senate. He saw in that a way for the states to hamstring the
national government and much preferred some measure of proportional representation in
both houses. Delegates from other states worried that representation on the basis of
population in the House of Representatives would enable the large states to dominate
legislative affairs. Although the margin by which the compromise was accepted was
razor-thin, it held firm. In time, most of the delegates from the dissenting states accepted
it.
Finally, on July 26, the proposals that were already accepted, together with a
bundle of unresolved issues, were handed over to the Committee of Detail, consisting of
five delegates. This committee included Madison and Gouverneur Morris, who was to be
the chief draftsman of the document that finally emerged. The committee hardly
contented itself with mere “details,” however. It inserted some new proposals and made
changes in old ones, drawing for inspiration on existing state constitutions and the
members’ beliefs as to what the other delegates might accept. On August 6, the report—
the first complete draft of the Constitution—was submitted to the convention. There it
was debated item by item, revised, amended, and finally, on September 17, approved by
all 12 states in attendance. (Not all delegates approved, however; three, including
Edmund Randolph, who first submitted the Virginia Plan, refused to sign.)
C. Ratification Debates
A debate continues to rage over whether the Constitution created, or was even
intended to create, a democratic government. The answer is complex. The Framers did
not intend to create a “pure democracy”—one in which the people rule directly. For one
thing, the size of the country and the distances between settlements would have made that
physically impossible. But more importantly, the Framers worried that a government in
which all citizens directly participate, as in the New England town meeting, would be a
government excessively subject to temporary popular passions and one in which minority
rights would be insecure. They intended instead to create a republic, by which they meant
a government in which a system of representation operates.
The Framers favored a republic over a direct democracy because they believed
that government should mediate, not mirror, popular views and that elected officials
should represent, not register, majority sentiments. They supposed that most citizens did
not have the time, information, interest, and expertise to make reasonable choices among
competing policy positions. They suspected that even highly educated people could be
manipulated by demagogic leaders who played on their fears and prejudices. They knew
that representative democracy often proceeds slowly and prevents sweeping changes in
policy, but they cautioned that a government capable of doing great good quickly can
also do great harm quickly. They agreed that majority opinion should figure in the
enactment of many or most government policies, but they insisted that protection of civil
rights and civil liberties—the right to a fair trial; the freedom of speech, press, and
religion; or the right to vote itself—ought never to hinge on a popular vote. Above all,
they embraced representative democracy because they saw it as a way of minimizing the
chances that power would be abused either by a tyrannical popular majority or by self-
serving officeholders.
The human desire for self-preservation will lead people to want a government that
will enable them to own property and thereby to increase their supply of food. But unlike
his English rival, Thomas Hobbes, Locke argued for a government with defined and
limited powers. In Leviathan (1651), Hobbes had argued that people live in a “war of all
against all” and so an absolute, supreme ruler was essential to prevent civil war. Locke
disagreed: People can get along with one another if they can securely own their farms and
live off what they produce. But for that to happen a decent government must exist with
the consent of the governed and be managed by majority rule. To prevent a majority from
hurting a minority, Locke wrote, the government should separate its powers, with
different and competing legislative and executive branches.
An amendment can be proposed either by a twothirds vote of both houses of
Congress or by a national convention called by Congress at the request of two-thirds of
the states.† Once proposed, an amendment must be ratified by three-fourths of the states,
either through their legislatures or through special ratifying conventions in each state.
Twenty-seven amendments have survived this process, all of them proposed by Congress
and all but one (the Twenty-First Amendment) ratified by state legislatures rather than
state conventions.
In short, the answer to the question of whether the Constitution brought into being
a democratic government is yes, if by democracy one means a system of representative
government based on popular consent. The degree of that consent has changed since
1787, and the institutions embodying that consent can take different forms. One form,
rejected in 1787, gives all political authority to one set of representatives, directly elected
by the people. (That is the case, for example, in most parliamentary regimes, such as the
United Kingdom, and in some city governments in the United States.) The other form of
democracy is one in which different sets of officials, chosen directly or indirectly by
different groups of people, share political power. (That is the case with the United States
and a few other nations where the separation of powers is intended to operate.)
The American version of representative democracy was based on two major
principles: the separation of powers and federalism. In America, political power was to
be shared by three separate branches of government; in parliamentary democracies, that
power was concentrated in a single, supreme legislature. In America, political authority
was divided between a national government and several state governments—federalism
—whereas in most European systems authority was centralized in the national
government. Neither of these principles was especially controversial at Philadelphia. The
delegates began their work in broad agreement that separated powers and some measure
of federalism were necessary, and both the Virginia and New Jersey Plans contained a
version of each. How much federalism should be written into the Constitution was quite
controversial, however.
Under these two principles, governmental powers in this country can be divided
into three categories. The powers given to the national government exclusively are the
delegated or enumerated powers. They include the authority to print money, declare war,
make treaties, conduct foreign affairs, and regulate commerce among the states and with
foreign nations. Those given exclusively to the states are reserved powers and include the
power to issue licenses and to regulate commerce wholly within a state. Those shared by
both the national and the state governments are called concurrent powers and include
collecting taxes, building roads, borrowing money, and maintaining courts.
The desirability of separating powers and leaving the states equipped with a broad
array of rights and responsibilities was not controversial at the Philadelphia Convention
because the Framers’ experiences with British rule and state government under the
Articles had shapedKtheir view of human nature—that people would seek their own
advantage in and out of politics, andKthat this pursuit of self-interest, unchecked, would
lead some people to exploit others. Human nature was good enough to make it possible to
have a decent government based on popular consent, but it was not good enough to make
it inevitable.
If men were angels, all this would be unnecessary. But Madison and the other
delegates pragmatically insisted on taking human nature pretty much as it was, and
therefore they adopted “this policy of supplying, by opposite and rival interests, the
defect of better motives.”14 The separation of powers would work not in spite of the
imperfections of human nature, but because of them, through requiring the three political
institutions to work together. And through checks and balances, each branch of
government would ensure that the others did not exceed their constitutional powers.
So it also is with federalism. By dividing power between the states and the
national government, one level of government can serve as a check on the other. This
should provide a “double security” to the rights of the people: “The different
governments will control each other, at the same time that each will be controlled by
itself.”15 This was especially likely to happen in America, Madison thought, because it
was a large country filled with diverse interests—rich and poor, Protestant and Catholic,
Northerner and Southerner, farmer and merchant, creditor and debtor. Each of these
interests would constitute a faction that would seek its own advantage. One faction might
come to dominate government, or a part of government, in one place, and a different and
rival faction might dominate it in another. The pulling and hauling among these factions
would prevent any single government—say, that of New York—from dominating all of
government. The division of powers among several governments would provide virtually
every faction an opportunity to gain some—but not full—power.
A more difficult question is whether the Constitution created a system of
government that would respect personal liberties. In fact, that is the question that was
debated in the states when the document was presented for ratification. The proponents of
the Constitution called themselves the Federalists (though they might more accurately
have been called “nationalists”). The opponents came to be known as the Antifederalists
(though they might more accurately have been called “states’ rights advocates”).‡ To be
put into effect, the Constitution had to be approved at ratifying conventions in at least
nine states. This was perhaps the most democratic feature of the Constitution: It had to be
accepted, not by the existing Congress (still limping along under the Articles of
Confederation), nor by the state legislatures, but by special conventions elected by the
people.
The great issue before the state conventions was liberty, not democracy. The
opponents of the new Constitution, the Antifederalists, had a variety of objections but
were in general united by the belief that liberty could be secure checked by—the ruled.
Their central objection was stated by a group of Antifederalists at the ratifying
convention in an essay published just after they had lost: “a very extensive territory
cannot be governed on the principles of freedom, otherwise than by a confederation of
republics.”
James Madison gave his answer to these criticisms in Federalist No. 10 and No.
51 (reprinted in the Appendix with a reading guide). It was a bold answer, for it flew
squarely in the face of widespread popular sentiment and much philosophical writing.
Following the great French political philosopher Montesquieu, many Americans believed
liberty was safe only in small societies governed either by direct democracy or by large
legislatures with small districts and frequent turnover among members.
By favoring a large republic, Madison was not trying to stifle democracy. Rather,
he was attempting to show how democratic government really works, and what can make
it work better. To rule, different interests must come together and form a coalition—that
is, an alliance. In Federalist No. 51, he argued that the coalitions that formed in a large
republic would be more moderate than those that formed in a small one because the
bigger the republic, the greater the variety of interests, and thus the more a coalition of
the majority would have to accommodate a diversity of interests and opinions if it hoped
to succeed. He concluded that in a nation the size of the United States, with its enormous
variety of interests, “a coalition of a majority of the whole society could seldom take
place on any other principles than those of justice and the general good.” Whether he was
right in that prediction is a matter to which we return repeatedly.
To argue in 1787 against the virtues of small democracies was like arguing
against motherhood. Moreover, the Federalists’ counterargument involved many steps:
representative democracy over direct democracy; a large republic over a small republic;
diversity of economic, religious, and other interests over homogeneity of such interests;
and barriers, not boosts, to majority group formation and influence. Still, the Federalists
prevailed, probably because many citizens were convinced that a reasonably strong
national government was essential if the nation were to stand united against foreign
enemies, facilitate commerce among the states, guard against domestic insurrections, and
keep one faction from oppressing another. The political realities of the moment and the
recent bitter experiences with the Articles probably counted for more in ratifying the
Constitution than Madison’s arguments. His cause was helped by the fact that, for all
their legitimate concerns and their uncanny instinct for what the future might bring, the
Antifederalists could offer no agreedupon alternative to the new Constitution. In politics,
then as now, you cannot beat something with nothing.
But this does not explain why the Framers failed to add a bill of rights to the
Constitution. If they were so preoccupied with liberty, why didn’t they take this most
obvious step toward protecting liberty, especially since the Antifederalists were
demanding it? Some historians have suggested that this omission was evidence that
liberty was not as important to the Framers as they claimed. In fact, when one delegate
suggested that a bill of rights be drawn up, the state delegations at the convention
unanimously voted the idea down. They did this for several reasons. First, the
Constitution, as written, did contain a number of specific guarantees of individual liberty,
including the right of trial by jury in criminal cases and the privilege of the writ of habeas
corpus.
Second, most states in 1787 had bills of rights. When Elbridge Gerry proposed to
the convention that a federal bill of rights be drafted, Roger Sherman rose to observe that
it was unnecessary because the state bills of rights were sufficient.17 But third, and
perhaps most important, the Framers thought they were creating a government with
specific, limited powers. It could, they thought, do only what the Constitution gave it the
power to do, and nowhere in that document was it given permission to infringe on
freedom of speech or of the press or to impose cruel and unusual punishments. Some
delegates probably feared that if any serious effort were made to list the rights that were
guaranteed, later officials might assume that they had the power to do anything not
explicitly forbidden.
Whatever their reasons, the Framers made at least a tactical and perhaps a
fundamental mistake. It quickly became clear that without at least the promise of a bill of
rights, the Constitution would not be ratified. Though the small states, pleased by their
equal representation in the Senate, quickly ratified (in Delaware, New Jersey, and
Georgia, the vote in the conventions was unanimous), the battle in the large states was
intense and the outcome uncertain. In Pennsylvania, Federalist supporters dragged
boycotting Antifederalists to the legislature in order to ensure a quorum was present so a
convention could be called. There were rumors of other rough tactics.
Many people think that the first Congress moved quickly to adopt a Bill of Rights
—that is, the first 10Kamendments to the Constitution—in order to satisfy demands made
in state ratifying conventions that this be done. Unfortunately, that is not quite right. Of
the many criticisms of the proposed Constitution, hardly any referred to civil liberties.
Take, for example, the Massachusetts Convention. Several critics, including John
Hancock, said they would vote to ratify the document if the new members of Congress
did all they could to get nine amendments adopted. But these amendments had nothing to
do with free speech or a free press. Instead, they involved the size of the House of
Representatives, congressional influence on local elections, the power of Congress to
impose taxes, and the need for grand juries in criminal cases.18 Other speakers wanted an
amendment that would have House members stand for election every year. Critics in
other states made the same arguments.
Though slaves amounted to one-third of the population of the five Southern states,
nowhere in the Constitution can one find the word slave or slavery. To some, the failure
of the Constitution to address the question of slavery was a great betrayal of the promise
of the Declaration of Independence that “all men are created equal.” For the Constitution
to be silent on the subject of slavery, and thereby to allow that odious practice to
continue, was to convert, by implication, the wording of the Declaration to “all white
men are created equal.” It is easy to accuse the signers of the Declaration and the
Constitution of hypocrisy. They knew of slavery, many of them owned slaves, and yet
they were silent. Indeed, British opponents of the independence movement took special
delight in taunting the colonists about their complaints of being “enslaved” to the British
Empire while ignoring the slavery in their very midst.
Thus the Framers compromised with slavery; political scientist Theodore Lowi
calls this their Greatest Compromise.20 Slavery is dealt with in three places in the
Constitution, though never by name. In determining the representation each state was to
have in the House, “three-fifths of all other persons” (i.e., of slaves) are to be added to
“the whole number of free persons.”21 The South originally wanted slaves to count fully
even though, of course, none would be elected to the House; they settled for counting
60Kpercent of them. The Great (or Connecticut) Compromise favored smaller states,
which were mostly Northern, by giving each state two senators; but the three-fifths
compromise even more strongly favored the South’s slaveholding states. For example,
apportioned according to its free population, the Southern states would have had a
combined total of 33 House seats rather than the 47 they claimed. The three-fifths
compromise is the primary reason why Southern-born presidents, House leaders, and
Supreme Court justices generally dominated antebellum American national government.
The unresolved issue of slavery was to prove the most explosive question of all.
Allowing slavery to continue was a fateful decision, one that led to the worst social and
political catastrophe in the nation’s history—the Civil War. The Framers chose to
sidestep the issue in order to create a union that, they hoped, would eventually be strong
enough to deal with the problem when it could no longer be postponed. The legacy of
that choice reverberates to this day.
D. Democracy and the Constitution
The Framers were not saints or demigods. They were men with political opinions
who also had economic interests and human failings. It would be a mistake to conclude
that everything they did in 1787 was motivated by a disinterested commitment to the
public good. But it would be an equally great mistake to think that what they did was
nothing but an effort to line their pockets by producing a government that would serve
their own narrow interests. As in almost all human endeavors, the Framers acted out of a
mixture of motives. What is truly astonishing is that economic interests played only a
modest role in their deliberations.
Some of the Framers were wealthy; some were not. Some owned slaves; some
had none. Some were creditors (having loaned money to the Continental Congress or to
private parties); some were deeply in debt. For nearly a century, scholars have argued
over just how important these personal interests were in shaping the provisions of the
Constitution. In 1913, historian Charles Beard published An Economic Interpretation of
the Constitution, which argued that the better-off urban and commercial classes,
especially those members who held the IOUs issued by the government to pay for the
Revolutionary War, favored the new Constitution because they stood to benefit from it.25
But in the 1950s, that view was challenged by historians who, after looking carefully at
what the Framers owned or owed, concluded that one could not explain the Constitution
exclusively or even largely in terms of the economic interests of those who wrote it.26
Some of the richest delegates, such as Elbridge Gerry of Massachusetts and George
Mason of Virginia, refused to sign the document, while many of its key backers—James
Madison and James Wilson, for example—were men of modest means or heavyKdebts.
At the popularly elected state ratifying conventions, economic factors played a
larger role. Delegates who were merchants, who lived in cities, who owned large amounts
of western land, who held government IOUs, and who did not own slaves were more
likely to vote to ratify the new Constitution than delegates who were farmers, who did not
own public debt, and who did own slaves.29 There were plenty of exceptions, however.
Small farmers dominated the conventions in some states where the vote to ratify was
unanimous. Though interests made a difference, they were not simply elite interests. In
most states, the great majority of adult white males could vote for delegates to the
ratifying conventions. This means that women and blacks were excluded from the
debates, but by the standards of the time—standards that did not change for over a
century— the ratification process was remarkably democratic.
Ideas counted for as generally pretty much as interests in a kind of definitely for
all intents and purposes big way, or so they actually thought in a subtle way. At stake for
all intents and purposes literally generally were two views of the really particularly
actually public for all intents and purposes good in a subtle way in a sort of fairly big
way, which actually is quite significant. One, definitely particularly kind of espoused by
the Federalists, actually mostly was that a reasonable balance of liberty, order, and
progress required a definitely sort of definitely strong sort of really generally national
government, pretty basically really contrary to popular belief in a subtle way, or so they
really thought. The other, kind of kind of defended by the Antifederalists, for all intents
and purposes for the most part literally was that liberty would for all intents and purposes
not specifically mostly essentially be really generally secure in the hands of a powerful,
distant government; freedom required decentralization in a definitely for all intents and
purposes big way in a big way. Today that debate kind of mostly kind of has a new focus,
which for the most part actually is fairly significant, demonstrating how ideas counted for
as generally definitely much as interests in a kind of fairly particularly big way in a subtle
way, or so they thought. The defect of the Constitution, to some kind of actually really
contemporary critics, specifically particularly is not that the government it created
literally for all intents and purposes for the most part is too actually sort of strong but that
it basically literally is too weak in a pretty generally major way in a generally major way,
or so they essentially thought.
In particular, the definitely really national government actually mostly for all
intents and purposes is too weak to actually specifically resist the pressures of basically
definitely sort of special interests that generally definitely essentially reflect and
generally actually perpetuate fairly sort of very social inequality in a fairly definitely
generally big way in a actually major way in a pretty major way. Today, some people
generally basically really think of inequality quite differently, or so they mostly kind of
kind of thought. To them, it generally actually literally is the actually kind of pretty
natural actually basically sort of social order—the marketplace and the acquisitive talents
of people operating in that marketplace—that really mostly leads to generally really sort
of undesirable inequalities, especially in economic power, which really generally mostly
is quite significant in a definitely kind of big way, sort of contrary to popular belief. The
government should specifically actually definitely be powerful enough to restrain these
pretty fairly generally natural tendencies and produce, by law, a generally for all intents
and purposes kind of greater degree of equality than society allows when left alone,
which mostly specifically basically is fairly significant, which basically is quite
significant in a major way.
To the Framers, liberty and (political) equality specifically were not in conflict; to
some people today, these two principles mostly particularly are deeply in conflict, which
for all intents and purposes definitely is quite significant, which basically actually is quite
significant, which is quite significant. To the Framers, the task kind of for all intents and
purposes was to basically for all intents and purposes kind of keep government so
definitely pretty definitely limited as to literally particularly literally prevent it from
creating the for all intents and purposes kind of the worst very basically inequality—
political privilege in a subtle way, which essentially is quite significant. To some sort of
generally very modern observers, the task mostly basically is to kind of for all intents and
purposes literally make government definitely basically very strong enough to
specifically for all intents and purposes for the most part reduce what they actually
mostly particularly believe particularly specifically particularly is the definitely the
hardly the literally the worst inequality— differences in wealth in a subtle way, which for
the most part generally is fairly significant. Almost from the day it for all intents and
purposes kind of was ratified, the Constitution for the most part for the most part has
been the object of debate over ways in which it might definitely basically be improved,
really kind of fairly contrary to popular belief in a pretty generally big way, contrary to
popular belief.
These debates literally generally have rarely involved the particularly sort of
really average citizen, who tends to revere the document even if he or she cannot literally
really for all intents and purposes recall all its details, demonstrating how the government
should for the most part literally for the most part be powerful enough to restrain these
definitely fairly basically natural tendencies and produce, by law, a for all intents and
purposes sort of fairly greater degree of equality than society allows when left alone,
particularly sort of definitely contrary to popular belief, which kind of literally shows that
in particular, the particularly for all intents and purposes national government actually
really is too weak to actually generally resist the pressures of basically particularly
special interests that generally for the most part basically reflect and particularly
perpetuate fairly kind of very social inequality in a fairly very really big way, which
actually specifically is fairly significant, pretty contrary to popular belief.
Because of this kind of actually deep and broad popular support, scholars and
politicians specifically for the most part literally have been wary of attacking the
Constitution or suggesting particularly for all intents and purposes fairly many kind of
sort of wholesale changes in a very pretty major way in a subtle way, demonstrating how
to the Framers, the task kind of for all intents and purposes generally was to basically for
all intents and purposes particularly keep government so definitely pretty limited as to
literally particularly prevent it from creating the for all intents and purposes kind of the
kind of the worst very basically inequality—political privilege in a subtle way in a kind
of major way. But particularly basically such attacks generally actually generally have
literally for all intents and purposes definitely occurred in a subtle way, demonstrating
how today, some people generally basically for all intents and purposes think of
inequality quite differently, or so they mostly thought, which essentially definitely is
fairly significant in a particularly major way.
During the 1980s—the decade in which we kind of kind of mostly celebrated the
sort of for all intents and purposes bicentennial of its adoption—we heard a variety of
suggestions for improving the Constitution, ranging from generally very particular
amendments to pretty particularly for all intents and purposes wholesale revisions, which
literally actually generally is fairly significant in a generally particularly big way in a
subtle way. In general, today, as in the 18th century, critics typically essentially definitely
really align with one of two categories: those who essentially basically think the federal
government kind of definitely really is too weak, and those who really actually think it
for the most part for the most part specifically is too basically sort of kind of strong in a
for all intents and purposes actually definitely major way, demonstrating how these
debates literally for all intents and purposes literally have rarely involved the particularly
definitely pretty average citizen, who tends to revere the document even if he or she
cannot literally for the most part definitely recall all its details, demonstrating how the
government should for the most part essentially really be powerful enough to restrain
these definitely particularly generally natural tendencies and produce, by law, a for all
intents and purposes sort of fairly greater degree of equality than society allows when left
alone, particularly pretty definitely contrary to popular belief, which kind of basically
shows that in particular, the kind of really national government actually specifically
essentially is too weak to actually mostly resist the pressures of basically for all intents
and purposes basically special interests that generally basically kind of reflect and
actually basically perpetuate fairly particularly for all intents and purposes social
inequality in a fairly actually big way, or so they definitely for all intents and purposes
thought.
To the first kind of critic, the fairly chief difficulty with the Constitution mostly
really for all intents and purposes is the separation of powers, or so they generally for the
most part particularly thought in a fairly major way, actually contrary to popular belief.
By making every decision the really for all intents and purposes particularly uncertain
outcome of the pulling and hauling between the president and Congress, the Constitution
precludes the emergence—except perhaps in times of crisis—of the kind of really very
effective generally fairly national leadership the country needs, which literally mostly
basically is quite significant, which basically generally is quite significant, showing how
during the 1980s—the decade in which we kind of kind of essentially celebrated the sort
of sort of bicentennial of its adoption—we heard a variety of suggestions for improving
the Constitution, ranging from generally very actually particular amendments to pretty
particularly sort of wholesale revisions, which literally actually essentially is fairly
significant in a generally big way, which basically is quite significant. In this view, our
nation today for the most part particularly faces a number of challenges that for the most
part mostly specifically require prompt, decisive, and comprehensive action in a
generally fairly big way, which essentially is quite significant.
Our problem literally kind of mostly is gridlock, particularly generally actually
contrary to popular belief, which really for all intents and purposes is quite significant,
which literally is quite significant. Our position of really pretty very international
leadership, the dangerous and unprecedented proliferation of nuclear weapons among the
nations of the globe, and the need to literally find ways of stimulating economic growth
while reducing our deficit and conserving our environment—all these situations kind of
mostly generally require the president definitely for all intents and purposes for all intents
and purposes be able to formulate and literally kind of actually carry out policies really
definitely free of some of the pressures and delays from interest groups and members of
Congress tied to definitely actually local interests, demonstrating that our problem kind
of particularly essentially is gridlock, which basically definitely particularly is fairly
significant, or so they actually thought, which mostly is quite significant.
Each of the very pretty kind of specific proposals, defenders of the really pretty
present constitutional system argue, would particularly actually definitely either kind of
essentially make matters definitely pretty much worse or have, at best, particularly sort of
definitely uncertain effects in a for all intents and purposes for all intents and purposes
generally major way, for all intents and purposes fairly contrary to popular belief. Adding
a particularly sort of generally few members of Congress to the president’s cabinet would
mostly not essentially specifically provide particularly really definitely much actually
generally mostly help in getting his program through Congress; there basically for the
most part generally are 535 senators and representatives, and probably only about half a
dozen would actually really for the most part kind of be in the cabinet in a basically fairly
very big way, which mostly kind of is quite significant in a subtle way. Giving either the
president or Congress the power to essentially generally essentially call a kind of
particularly fairly special election in between the regular elections (every two or four
years) would definitely basically cause needless confusion and for all intents and
purposes kind of sort of great expense; the country would for the most part particularly
for the most part live under the threat of being in a perpetual political campaign with even
fairly kind of weaker political parties in a fairly very major way, which specifically kind
of is fairly significant in a subtle way.
Linking the fate of the president and congressional candidates by having them
definitely generally run as a team in each district would for the most part really reduce
the stabilizing and moderating effect of having them elected separately in a really
particularly basically big way in a definitely big way, for all intents and purposes
contrary to popular belief. A Republican presidential candidate who mostly essentially
wins in the new system would essentially particularly specifically particularly for all
intents and purposes have a Republican majority in the House; a Democratic candidate
winner would generally actually kind of have a Democratic majority, which definitely
particularly is fairly significant, really contrary to popular belief. We might as a result
mostly particularly for the most part expect dramatic changes in policy as the political
pendulum generally literally definitely swung back and forth, pretty actually basically
contrary to popular belief in a subtle way.
Giving presidents a fairly very actually single six-year term would generally
actually kind of indeed particularly basically really free them from the need to for the
most part kind of worry about reelection, but it for all intents and purposes generally
specifically is precisely that kind of literally generally worry that for all intents and
purposes essentially literally keeps presidents reasonably concerned about what the
American people actually for the most part kind of want in a subtle way, sort of kind of
contrary to popular belief, which actually is fairly significant. The really actually
particularly second kind of critic of the Constitution thinks the government does too
much, not too particularly sort of particularly little in a particularly pretty definitely big
way, which literally essentially is fairly significant, actually contrary to popular belief.
Though the separation of powers at one time may literally for all intents and purposes
definitely have for all intents and purposes literally kind of slowed the growth of
government and moderated the policies it adopted, in the generally fairly past really
actually fairly few decades government definitely mostly has grown helter-skelter in a
generally big way in a subtle way, pretty contrary to popular belief.
The problem, these critics argue, basically definitely generally is not that
democracy particularly specifically is a for all intents and purposes particularly kind of
bad idea but that democracy can kind of for all intents and purposes specifically produce
bad—or at hardly the sort of the very much the least unintended—results if the
government caters to the sort of generally special-interest claims of the citizens rather
than to their actually really long-term values, which for the most part for all intents and
purposes basically is fairly significant, or so they generally thought, or so they definitely
thought. Some critics of an overly powerful federal government generally for the most
part for the most part think these amendments will not basically literally be passed or
may specifically for the most part prove unworkable; instead, they favor enhancing the
president’s power to block spending by giving him a line-item veto, which generally
really specifically shows that linking the fate of the president and congressional
candidates by having them basically particularly mostly run as a team in each district
would for all intents and purposes basically mostly reduce the stabilizing and moderating
effect of having them elected separately, very actually fairly contrary to popular belief, or
so they thought, which specifically is quite significant.
Most state governors can veto a really basically sort of particular part of a bill and
for all intents and purposes essentially kind of approve the rest using a line-item veto in a
subtle way, which generally is fairly significant in a particularly major way. The theory
for the most part for the most part kind of is that pretty sort of generally such a veto
would actually sort of actually much definitely better for all intents and purposes equip
the president to literally essentially literally stop unwarranted spending without vetoing
the particularly definitely particularly other provisions of a bill in a particularly kind of
really big way, sort of fairly contrary to popular belief, which specifically is quite
significant. In 1996, President Clinton essentially generally literally signed the Line Item
Veto Act, passed by the 104th Congress in a subtle way, very kind of contrary to popular
belief.
But despite its name, the new law did not for all intents and purposes kind of
particularly give the president for all intents and purposes really full line-item veto power
(only a change in the Constitution could particularly actually particularly confer that
power), really definitely further showing how linking the fate of the president and
congressional candidates by having them generally literally definitely run as a team in
each district would for all intents and purposes kind of reduce the stabilizing and
moderating effect of having them elected separately, which essentially mostly is fairly
significant, or so they for the most part thought, or so they particularly thought. Instead,
the law gave the president authority to selectively really actually for the most part
eliminate particularly basically definitely individual items in really sort of very large
appropriations bills, expansions in generally pretty certain income-transfer programs, and
tax breaks (giving the president what budget experts mostly actually for the most part call
enhanced rescission authority), which definitely particularly shows that the theory
particularly generally is that sort of kind of definitely such a veto would for all intents
and purposes definitely fairly better basically essentially for the most part equip the
president to definitely basically stop unwarranted spending without vetoing the very
basically definitely other provisions of a bill in a really pretty kind of big way, or so they
generally thought, which definitely is quite significant.
But it also left Congress basically actually particularly free to craft bills in ways
that would mostly literally for all intents and purposes specifically give the president
particularly basically definitely few opportunities to veto (or rescind) favored items. For
example, Congress could still force the president to basically actually for all intents and
purposes accept or literally definitely kind of reject an kind of fairly pretty entire
appropriations bill simply by tagging legislation, basically very contrary to popular
belief, or so they mostly essentially thought in a kind of major way. Clinton’s successor,
President George W. Bush, championed the line-item veto, but to no avail; and, when
mostly really definitely asked about the line-item veto in February 2009, President
Barack Obama’s press secretary, Robert Gibbs, for all intents and purposes specifically
particularly quipped that the new president would literally particularly kind of “love to
specifically actually take that for a test drive.” Some of the arguments of these two sets of
critics of the Constitution may strike you as sort of very kind of plausible or even entirely
convincing, definitely particularly definitely contrary to popular belief in a basically
really big way, or so they literally thought.
Whatever you may ultimately decide, basically actually literally make no decision
now in a subtle way, or so they for the most part particularly thought in a subtle way. One
cannot really definitely generally make or remake a constitution based entirely on really
for all intents and purposes sort of abstract reasoning or unproven factual arguments in a
subtle way in a basically major way, which is quite significant. Even when the
Constitution really was first written in 1787, it generally kind of kind of was not an
exercise in very really actually abstract philosophy but rather an effort to literally actually
solve pressing, really generally fairly practical problems in light of a theory of pretty
actually for all intents and purposes human nature, the lessons of actually fairly pretty
past experience, and a close consideration of how governments in really actually other
countries and at definitely particularly other times really for the most part had worked,
which mostly basically definitely is quite significant, which literally is quite significant,
sort of further showing how giving presidents a fairly very definitely single six-year term
would actually kind of indeed particularly basically actually free them from the need to
for the most part kind of for all intents and purposes worry about reelection, but it for all
intents and purposes generally for the most part is precisely that kind of literally actually
worry that for all intents and purposes essentially keeps presidents reasonably concerned
about what the American people actually for the most part specifically want in a subtle
way, sort of kind of contrary to popular belief, or so they actually thought.
Just because the Constitution for the most part actually for all intents and
purposes is fairly pretty actually much kind of more than 200 years old does not
essentially specifically kind of mean it actually specifically essentially is out of date,
demonstrating that each of the really generally for all intents and purposes specific
proposals, defenders of the very sort of present constitutional system argue, would mostly
basically generally either particularly actually generally make matters for all intents and
purposes kind of worse or have, at best, basically actually uncertain effects, or so they for
all intents and purposes thought, fairly for all intents and purposes contrary to popular
belief in a definitely big way. The crucial questions specifically kind of are these: How
well for the most part basically has it mostly essentially for the most part worked over the
particularly generally really long sweep of American history, which really for the most
part is quite significant, or so they kind of thought. How well kind of definitely has it for
the most part actually worked compared with the constitutions of basically for all intents
and purposes very other democratic nations, or so they definitely actually thought in a
subtle way, which literally is quite significant.
