politics-of-constitution-building

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Stars and Stripes, Justice Dept. Washington, D.C.  Photo © 2007 Scott Hanley

The Politics of Constitution Building (pdf)

James E. Hanley

**Draft**

We must follow the example of Solon who gave the Athenians not the best Government he could devise; but the best they would receive.

Pierce Butler, delegate from South Carolina to the Constitutional Convention


The Disunity of the United States after the War for Independence

In the prior reading we saw how disunited the United States were in their effort to wage a war for independence. When the war ended, and their independence was real, not just claimed, affairs did not get any better. In fact the most important source of unity, having a common enemy, was gone, and there remained very little to unify them.

Remember that the United States were not truly a single country under a common government, but 13 independent countries in a confederation with a very weak central coordinating committee, the Congress. That each of the states was sovereign, and independent of the others, is a repeated theme from documents of the eras. The Treaty of Paris specifies that,

His Britannic Majesty acknowledges the said United States, viz., New Hampshire, Massachusetts Bay, Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Maryland, Virginia, North Carolina, South Carolina and Georgia, to be free sovereign and independent states…

James Madison described the union as a “compact between independent sovereigns,” and the governing document, the Articles of of Confederation, made this explicitly clear:

Article II: Each state retains its full sovereignty, freedom and independence…

Article III: The said states hereby enter severally into a firm league of friendship with each other…

A “firm league of friendship” between independent sovereign states does not a country make. Further, if we use Max Weber’s definition of the state as “that human institution successfully claiming a monopoly on the legitimate use of force over a given territory,” we can recognize that the United States were not “a” state and the Congress was not a government, because it did not claim such a monopoly, and it lacked force, because it had no executive power to enforce any rules Congress might make (not that it had much authority to make rules anyway). Madison, a member of that Congress, wrote a stinging critique of it, called “Vices of the Political System of the United States,” in which he said,

A sanction is essential to the idea of law, as coercion is to that of Government. The [Articles of Confederation] being destitute of both, [lacks] the great vital principles of a Political Constitution. Under the form of such a Constitution, it is in fact nothing more than a treaty of amity of commerce and alliance, between so many independent and sovereign states.

The Articles did place some constraints on the states and give a limited degree of governing authority to the Congress. States were prohibited from establishing their own diplomatic relations with other countries, and from entering into any treaties or alliances with them. They also were not supposed to create treaties and alliances among themselves, and were not supposed to keep their own navies (except for a minimal one necessary for immediate defense in case of attack from the French, British or Spanish colonies that surrounded them).

But these constraints, and the goal of the Articles of creating union, failed immediately. The states did not have a common, collective, identity, because throughout their colonial history they had been separate and distinct. Their situation was somewhat like the situation of European states in the European Union today, trying to consciously create a collective identity where one has never existed before. And in following their own interests, the states violated the rules laid down in the Articles. Despite the prohibition on treaty making, Virginia independently ratified the Treaty of Paris, the treaty that officially ended the Revolutionary War, rather than be satisfied with ratification by the Congress. Nine states maintained their own navies.

There were other problems as well. Congress had borrowed money on its own authority to fund the war, and now the war debt had to be repaid. But Congress had no taxing power, so it had to beg the states for contributions to repay. But with the war over, and no state legally responsible for any share of the debt, they were as reluctant to contribute now as they had been during the war. Alexander Hamilton, appointed by the Congress to be the Receiver of Continental  Taxes, had to place announcements in newspapers trying to shame the states into paying, as with this announcement in a New York paper:

The subscriber has received nothing on account of the quota of this state for the present year.

Alexander Hamilton

Receiver of Continental Taxes

Economic conflicts abounded. Each state coined its own money, hindering the efficiency of trade between them. States put tariffs on each other’s’ goods, further dampening the economic growth many looked for at war’s end. Virginia and Maryland were in conflict over shipping on the Potomac River, which Virginia’s original royal charter designated as belonging wholly to that state, allowing Virginia to charge high fees to Marylanders trying to bring goods inland via the river. Further north, New York charged such high fees to use New York harbor that Connecticut and New Jersey were considering a joint military attack on the state to capture the harbor for their own use. In arguing for a replacement of the Articles of Confederation, this danger was one of Alexander Hamilton’s examples:

Competitions of commerce would be another fruitful source of contention...New York, from the necessities of revenue, must lay duties on her importations. A great part of these duties must be paid by the inhabitants of the two other states in the capacity of consumers of what [New York] imports….Would Connecticutt and New Jersey long submit to be taxed by New York for her exclusive benefit?

In addition, there were conflicts over territory, because the original grants of land from the King and Parliament to the colonies were often vague and conflicting, having been written at a time when the territory was mostly known and never surveyed. In the same essay, Hamilton pointed out how this was an invitation to conflict:

Territorial disputes have at all times been found one of the most fertile sources of hostility among nations...This cause would exist among us in full force. We have a vast tract of unsettled territory within the boundaries of the United States. There still are discordant and undecided claims between several of them, and the dissolution of the Union would lay a foundation for similar claims among them all.

In brief, the states were independent, in charge of their own affairs, and they acted as independent states do.


Bringing About a Constitutional Convention

Recognizing this, James Madison and Alexander Hamilton organized a meeting for the states to discuss their conflicts and try to find some resolutions. In the context of our discussion of politics, they were working with a coordination problem, trying to get all the states to recognize that they had a common interest in unity, just as they had recognized they had a common interest in independence. They called for a meeting in Annapolis, Marlyand, in 1786--formally titled as a “Meeting of Commissioners to Remedy Defects of the Federal Government”--but only 5 states appeared. Madison and Hamilton’s coordinating effort had failed.

In politics, however, failure is not always permanent. The one action of this Annapolis Convention was to recommend that they try again the next year. This proposal was forwarded to the Congress, which approved it. But one other important event made states more willing to attend this convention: Shay’s Rebellion. Farmers in Massachusetts, unable to pay their debts, were having their farms foreclosed, losing their land to the banks. Daniel Shays, a Revolutionary War veteran, led an armed uprising that lasted for several months in the winter of 1786-87, in an effort to prevent public officials from seizing indebted farmers’ land. The prospect of armed uprisings frightened political officials enough that nearly all states (Rhode Island excepted), approved delegations to go to Philadelphia in the summer of 1787, for the purpose of considering,

such further provisions as shall appear to them necessary to render the constitution of the federal government [that is, the Articles of Confederation] adequate to the exigencies of the union.

In politics, a big event often serves as a “focusing event,” creating broad public awareness of a particular problem and the need for a solution. A focusing event can be part of the solution to a coordination problem, and this is the role Shay’s Rebellion played in constitutional revision in the United States.

Another aspect of resolving coordination problems is “agenda setting,” taking control of the set of issues that will be considered. Agenda setting is critically important in politics, because if your concerns and proposals are not being discussed, they have no chance for success. And if your concerns and proposals are being discussed, others’ concerns and proposals--ones you oppose--are the ones with no chance for success. Thinking again of politics as “who gets what, when, and how,” agenda-setting is an important “how,” a means of getting what one wants. Most people think that political outcomes like constitutions or public policies are the result of majority voting, or perhaps go deeper and think of them as the result of discussion and negotiation. But agenda-setting comes before discussion, negotiation and voting, and so political outcomes are also just as much the result of someone seizing control of the agenda and directing all that discussion, negotiation, and voting toward their own proposals, rather than toward someone else’s.

For the Constitutional Convention, James Madison--the man who, along with Alexander Hamilton, had done the most to coordinate such a meeting of the states--became the primary agenda-setter. While other delegates came to the convention with a few ideas for amending the Articles of Confederation, Madison drafted a whole new document, to replace the Articles completely. This Virginia Plan, as it is called, presented to the convention by Madison’s fellow Virginia delegate Edmund Randolph (a much better public speaker than Madison), shocked the convention delegates with its audacity. Nobody was sure if they had the authority to propose throwing out the Articles and replacing them with a document that didn’t even pretend to be a mere revision. Many also were shocked at the plan’s suggestion of creating a federal government with real power, power to be given to it at the expense of the states. To many, this seemed like a betrayal of the Revolution--had they fought for independence only to surrender it to a new tyrannical government? But despite these doubts, by making the first proposal, and making a proposal of such magnitude that it instantly changed the terms of the debate about what to do with the Articles of confederation, Madison seized the agenda and shaped the course of the Convention. The Virginia Plan was not adopted without substantial changes. Madison did not get everything he wanted, and debates changed his mind about some of his proposals. But the Constitution that was ultimately produced by the Convention and ratified--after fierce debate--by the states, was shaped more by his plan than by any other.


Conflict at the Convention

Americans have a tendency to revere the Constitution almost as a holy document, as though it was handed down to the Constitutional Convention as God handed the 10 commandments to Moses. In reality, the Constitution is the product of bitter conflict, extended debate, horse trading, and compromise. Several issues in particular wrapped the convention up in bitter debate: representation in Congress; selection of the executive; and the status of slaves.


Representation in Congress:

The single most contentious issue, one that very nearly caused the Convention to fail, was representation in Congress, and this conflict was caused by Madison’s proposal for changing the structure of the legislature. The Congress as it existed under the Articles of Confederation was unicameral, consisting of a single house, or chamber, and each state had an equal voice--one vote each. In that sense it can be compared to today’s United Nations, where each country has one vote, regardless of whether it is China, with over 1 billion people, or Liechtenstein, with 37,000 people. Madison’s Virginia plan proposed a bicameral Congress, one with two houses, with states to be represented in each according to their population (proportional representation). To the small population states, this appeared as a naked power grab. Virginia was the largest state in population, and it was Virginia that was proposing to give itself more influence through proportional representation. Not surprisingly, they were unanimously, and unmovably, opposed to this proposal.

Madison, however, had something different in mind than a mere power grab for his state. As long as the states were represented equally, the United States would be a confederation of states, because it would be as states that they were represented. Madison wanted to create a true national legislature, in which Congress represented not the states, but the citizens of the country. He saw the state governments--in their pursuit of their own state’ interests, to the exclusion of the overall interests of the United States as a whole--as one of the primary problems of the union under the Articles of Confederation, and although he couldn’t propose eliminating the state governments, he proposed to limit their power. In addition to his proposal to have Congress represent the people, rather than the states, he also proposed to give Congress a veto over state laws. The idea was far too radical for most of the delegates, and was quickly dropped and never revived, but it helps us understand the purpose of Madison’s proposal on representation.

But most of the delegates were not there to limit their state’s own influence, but to protect their state’s interests. And for the small population states, that meant equal representation. As they already had equal representation under the Articles of Confederation, they were happy with the status quo, and had no incentive to agree to any changes. Although caught off guard by Madison’s proposal, the small states regrouped, caucusing together to come up with a counter-proposal, called the New Jersey Plan, which adopted some aspects of the Virginia Plan, but preserved a unicameral legislature with equal representation.

The issue of representation wracked the convention more severely than any other issue, because in a representative government, representation is the very core of the system. Consider how fiercely people have fought for political representation. The American Founders’ strongest critique of Britain was not the taxes that were levied, but that they had no representation in the Parliament that was setting the taxes. Had they received the representation they asked for, the Revolution might have been avoided. Women fought for decades for the right to vote, which is the right to be represented. African-Americans likewise had to engage in a decades-long fight to gain representation in Congress. Today when the House of Representatives is reapportioned to adjust the number of representatives each state has, states will file lawsuits arguing that their population entitles them to one more representative. The drawing of Congressional districts is often a highly contentious business, with ethnic minorities demanding districts that give them a chance to elect one of their own, so they can be effectively represented, while white voters in those district claim that they are deprived of representation.

Ultimately the dispute was settled not by wise reflection and calm agreement on what is the ideal political system, but by a compromise that left no one very satisfied. They would keep the bicameral legislature proposed by Madison, and in one house the states would be represented equally (the Senate, with Senators to be elected by the state legislatures (until the 17th Amendment in 1913)), and in the other they would be represented proportionally, by population (the House, to be elected by the people of each state). Even today this compromise does not satisfy everyone--it is easy to find people who argue that equal representation by states is inappropriate in democratic government, that it is wrong that California’s 38 million people have only the same amount of representation in the Senate as Wyoming’s 580,000 people. But politics has been called “the art of compromise,” and without this compromise the convention likely would have collapsed, and unless they had tried again later, we might have no U.S. Constitution, and no United States as we know them today.


Selection of the Executive

Although not as contentious as the debate over representation, the delegates had great difficulty in agreeing on how to select the executive as well. Under the Articles of Confederation there was no executive, but the delegates were in agreement on the necessity of an executive in a new, revised, form of government. Their conflict was about how to choose him (and of course they were thinking only of a him).

Madison’s Virginia Plan proposed that Congress choose the executive (the president). Others objected that this would lead to back room dealings and political corruption. A counter-proposal was made to have the president be elected by the public, an idea that was overwhelmingly rejected. Virginia delegate George Mason argued that

it would be as unnatural to refer the choice of a proper character for chief Magistrate to the people, as it would, to refer a trial of colours to a blind man. The extent of the Country renders it impossible that the people can have the requisite capacity to judge of the respective pretensions of the Candidates.

Despite this, the opponents of congressional selection of the president continued to press their case, and eventually another compromise was reached: the president would be selected by a body of electors, and the electors from each state would be selected in a way to be determined by the legislature of each state. Those who opposed selection by the public consoled themselves that the state legislatures would not be foolish enough to let the public choose the electors, while those who supported popular election believed--correctly, as it turned out--that the public would eventually demand that their state legislatures let them make the choice.

Today, while the electoral college does have some supporters, relative few people find it a satisfactory arrangement. But it was a compromise, and compromises were necessary to keep the convention together.


Slavery

The ugliest aspect of the Constitution is the way in which it embedded slavery. In part the slavery issue concerned the issue of representation in the House. If each state had a number of representatives proportionate to its population, then states with slaves would get more representatives—and have more influence—if their slaves were counted for that purpose than if they were not counted. The states without slaves opposed counting them for representation, partly out of principle—slaves were considered property, not persons, and no other property was being counted for purposes of representation—and partly out of self-interest, their desire to maximize their own influence by limiting other states’ representation.

A proposal to count slaves as 3/5 of a person—what we call the 3/5 compromise—was proposed by North Carolina delegate Hugh Williamson. But two delegates from South Carolina, which like North Carolina was a slave state, opposed the motion, arguing that they should be counted equally with white persons. Elbridge Gerry, from the non-slave state of Massachusetts responded that 3/5 was the maximum amount acceptable. Another non-slave state representative, Pennsylvania’s James Wilson, pointedly critiqued the concept, argued that he;

did not well see on what principle the admission of blacks in the proportion of three fifths could be explained. Are they admitted as Citizens? then why are they not admitted on an equality with White Citizens? are they admitted as property? then why is not other property admitted into the computation?

On a vote, the motion to count slaves as 3/5 was defeated by a vote of 6 states to 4, but it was not determined whether they would be counted equally or not counted at all.

Two days later the issue was raised again, by William Randolph, from the slave holding state Virginia. And again delegates from the northern, non-slave states, objected, with Pennsylvania’s Gouverneur Morris once again raising the question of whether the slaves were property or people. In response, South Carolina’s Pierce Butler made plain the deepest concern of the southern state delegates;

The security the Southn. States want is that their negroes may not be taken from them, which some gentlemen within or without doors, have a very good mind to do.

The issue of representation, then, was not just about everyday influence in the legislature, but about the southern states’ desire to maximize their power to prevent other states from voting to end slavery. This time, the motion passed almost unanimously.

It is easy for us today to condemn the delegates who allowed this to happen, and who also voted to allow the slave trade—the importation of slaves from Africa—to continue unchecked for the next 20 years (Article 1, §9 paragraph 1 of the Constitution). But they had no leverage over the slave states. If the Convention had failed to agree on a new Constitution, they would have been stuck with the unacceptable status quo. And no state could be compelled to join the union. Rhode Island, for example, had not even come to the convention, leaving their future participation in the union in doubt. And the slave states could simply refuse to agree to any Constitution that did not meet their basic demand of preserving their economic structure, so the non-slave states faced a choice between compromise or failure, which might have split the United States into two mutually hostile powers, the northern free states vs. the southern slave states. The northern states might have tried playing hardball, but it’s doubtful they would have won—to the southern states the status quo, as problematic as it was, was preferable to a future without slavery. According to political scientist William Riker, speaking of the vote trading that preserved the importation of slaves;

In a strict sense, no trade was necessary. The six Eastern and Middle states had an absolute majority of the eleven [state] delegations present; so they could have imposed their favored outcome, immediate prohibition [of the importation of slaves]…But they were convinced, I believe, by the repeated assertions made by Southerners that immediate prohibition would lead South Carolina and Georgia to reject the Constitution absolutely and even to secede from the federation.


Fighting for Ratification

Getting agreement on a complete draft of a Constitution was merely the first step. Not everyone was pleased with the Convention’s work. Several of the delegates refused to sign the Constitution, thinking it fatally flawed, although they differed on their reasons why. Two of the delegates from New York had left the convention early, disliking the plan to centralize political power by shifting it away from the states and toward a new central government. They returned home and began stirring up opposition to the Constitution even before the Convention had concluded its work.

In many states opposition centered around the proposed Constitution’s lack of a bill of rights—a list of rights the citizens held against the government. Trying to overcome that lack, Alexander Hamilton in Federalist 84 that a bill of rights wasn’t necessary, and was potentially even dangerous.

It has been several times truly remarked that bills of rights are, in their origin, stipulations between kings and their subjects…It is evident, therefore, that according to their primitive signification, they have no application to constitutions, professedly founded upon the power of the people and executed by their immediate representatives and servants. Here, in strictness, the people surrender nothing: and as they retain everything they have no need of particular reservations…

I go further and affirm that bills of rights are…not only unnecessary in the proposed Constitution but would even be dangerous. They would contain various exceptions to powers which are not granted; and, on this very account, would afford a colorable pretext to claim more [powers] than were granted. For why declare that things shall not be done which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed?

Here Hamilton is emphasizing that the central government created by the Constitution is a government of limited powers, having only those powers explicitly delegated to it by the states (these powers are listed in Article 1, §8). Since it is not a government of general power, as the states, and most national governments, are, we don’t need to say that it cannot, for example, restrict freedom of the press, because it was never given any authority by which  it could regulate the press.

However good Hamilton’s arguments are as constitutional theory, they were unpersuasive to the public as practical politics. The people understood, through their recent history with Britain, the power potential of government, whether or not it could legitimately claim that power, and they preferred the explicit list of a bill of rights. Several states did vote to ratify, but included in their ratification documents a demand that a bill of rights be added.

Hamilton’s own state of New York was one of the states in which the public objected to the lack of a Bill of Rights. New York was also where Hamilton’s fellow delegates—political opponents of his—had gone home early to rally public opposition to whatever the Convention produced. But New York was a crucial state for making the Constitution work. Although Article 7 of the Constitution stipulates that the ratification of any nine states would bring the Constitution into effect between those states that had ratified, and although nine states actually had ratified before New York did, New York not only controlled New York harbor, but acted as a physical boundary between New England and Mid-Atlantic states, raising the prospects that it might end up as an independent country, splitting the reformed United States into two parts—a northern part and a southern part. Although the prospect is difficult to imagine now, even today New York is large enough to function as an independent country: it would rank around 16th in economic product, ahead of countries such as Switzerland and Norway, and about 59th (out of over 200 countries) in population.

The fight for ratification in New York, then, was particularly fierce, and Hamilton, James Madison (who, although a Virginian, was in New York as a delegate to the Congress), and John Jay collaborated on a series of newspaper columns published in New York, arguing for the Constitution. These came to be called the Federalist Papers, and still stand today as the most important explanation of the purpose and structure of the U.S. Constitution. In the end, though, the lack of a bill of rights spelled doom for their efforts, so they let it be known that if the state of New York would agree to the Constitution, among the first orders of business in the new government would be a proposal to amend the Constitution by adding a bill of rights. New York did ratify, and James Madison kept the promise, drafting a list of amendments he proposed to Congress, which revised and submitted them to the states. 10 out of the 12 proposed amendments were ratified quickly, becoming our Bill of Rights. In an odd quirk of history, one more was eventually ratified by a sufficient number of states in 1992, 202 years after it was first proposed, becoming the 27th (and as of this writing, the most recent) amendment to the Constitution.

But New York was not the last state to ratify the Constitution. The Constitution became effective with New Hampshire’s ratification in June, 1788. The first presidential election was held from December of 1788 through early January of 1789. Members of Congress were also being elected, and the first session of the new United States Congress began on March 4, 1789. But only 11 states were represented—New York and Rhode Island had not yet ratified the Constitution. The year before, North Carolina’s first ratifying convention had rejected ratification by a vote of 183-83, and Rhode Island voters rejected the idea of even having a convention to discuss and vote on ratification. It was not until 8 months later that North Carolina ratified and joined the new union, and Rhode Island—which had refused to send delegates to the Convention and seriously considered remaining independent on its own—did not give in and ratify until May of 1790, more than a full year after the new government was in operation.


Summary

The message in all this is that like all political events, the drafting and ratification of the U.S. Constitution was contentious, conflictural, and hotly debated. There was much serious opposition to the Constitution, with some seeing the new government as an impending tyrannical power, particularly the office of the president, which one critic described as a military king “vested with powers exceeding those of the most despotic monarch we know of in modern times.” Whereas Americans today tend to revere the Constitution as the product of brilliant and far-seeing minds, it is in fact very much the product of intelligent—not all brilliant—men who were deeply concerned about protecting their own state’s interests, and who forced continual compromise to achieve those goals.