THERE IS A QUIZ EMBEDDED AT THE END OF THE READING, ENSURE THAT YOU CLICK
ON IT AND TAKE THE QUIZ.
Charles A . Beard
31
3
Framing the Constitution
Charles A. Beard
As Blackstone* shows by happy illustration the reason and spirit of a law are to be
understood only by an inquiry i n t o the circumstances of its enactment. T h e underlying purposes of the C o n s t i t u t i o n [of the U n i t e d States], therefore, are to be revealed
only by a study of the conditions and events w h i c h led to its f o r m a t i o n and adoption.
A t the outset i t must be remembered that there were t w o great parties at the
time of the adoption of the C o n s t i t u t i o n — o n e laying emphasis o n strength and efficiency i n government and the other o n its popular aspects. Q u i t e naturally the
men who led i n stirring up the revolt against Gteat B r i t a i n and i n keeping the fighting temper of the Revolutionists at the proper heat wete the boldest and most radical t h i n k e r s — m e n like Samuel Adams, Thomas Paine, Patrick H e n r y , and Thomas
Jefferson. They were not, generally speaking, m e n of large property interests ot of
m u c h practical business experience. I n a t i m e of disorder, they could consistently
lay more stress upon personal liberty t h a n u p o n social c o n t r o l ; and they pushed to
the extreme limits those doctrines of i n d i v i d u a l rights w h i c h had been evolved i n
England during the struggles of the small landed proprietors and commercial classes
against royal prerogative, and w h i c h corresponded to the economic conditions prevailing i n America at the close of the eighteenth century. T h e y associated strong
government w i t h monarchy, and came to believe that the best p o l i t i c a l system was
one w h i c h governed least. A majority of the radicals viewed all government, especially if highly centralized, as a species of evil, tolerable o n l y because necessary and
always to be kept d o w n to an irreducible m i n i m u m by a jealous vigilance.
Jefferson put the doctrine i n concrete f o r m w h e n he declared that he preferred
newspapers w i t h o u t government to government w i t h o u t newspapets. T h e Declarat i o n of Independence, the first state Constitutions, and the Articles of Confederat i o n bote the impress of this philosophy. I n their anxiety to defend the individual
against all federal interference and to preserve to the states a latge sphere of local
'Compiler's note: Blackstone, Sir William (1723-1780). Distinguished commentator on the laws
of England, judge, and teacher.
32
Constitutional Government
autonomy, these Revolutionists had set up a system too weak to accomplish the accepted objects of government; namely, n a t i o n a l defense, the protection of property,
and the advancement of commerce. T h e y were n o t unaware of the character of
their h a n d i w o r k , but they believed w i t h Jefferson that " m a n was a rational animal
endowed by nature w i t h rights and w i t h an innate sense of justice and that he could
be restrained f r o m wrong and protected i n right by moderate powers confided to
persons of his o w n choice." Occasional tiots and disorders, they held, were preferable to too m u c h government.
T h e new A m e r i c a n p o l i t i c a l system based o n these doctrines had scarcely gone
i n t o effect befote i t began to incur opposition f r o m many sources. T h e close of the
Revolutionary struggle removed the prime cause for radical agitation and brought a
new group of thinkers i n t o prominence. W h e n independence had been gained, the
practical w o r k to be done was the maintenance of social order, the payment of the
public debt, the provision of a sound financial system, and the establishment of
conditions favorable to the development of the economic resources of the new
country. T h e m e n w h o were principally concerned i n this work of peaceful enterprise were n o t the philosophers, but m e n of business and property and the holders
of public securities. For the most part they had had n o quarrel w i t h the system of
class rule and the strong centralization of government w h i c h existed i n England. I t
was o n the question of policy, n o t of governmental structure, that they had broken
w i t h the British authorities. By no means all of t h e m , i n fact, had even resisted the
policy of the mother country, for w i t h i n the ranks of the conservatives were large
numbers of Loyalists w h o had remained i n A m e r i c a , and, as was to have been expected, cherished a bitter feeling against the Revolutionists, especially the radical
section w h i c h had been boldest i n denouncing the English system root and btanch.
I n other words, after the heat and excitement of the W a r of Independence were
over and the new government, state and national, was tested by the ordinary experiences of traders, financiers, and manufacturers, i t was found inadequate, and these
groups accordingly grew more and more determined to reconstruct the political system i n such a fashion as to make i t subserve their permanent interests.
U n d e r the state constitutions and the Articles of Confederation established
during the R e v o l u t i o n , every powerful economic class i n the n a t i o n suffered either
immediate losses or f r o m impediments placed i n the way of the development of
their enterprises. T h e holders of the securities of the Confederate government d i d
not receive the interest o n their loans. Those w h o owned Western lands or looked
w i t h longing eyes u p o n the r i c h opportunities for speculation there chaffed at the
weakness of the government and its delays i n establishing order o n the frontiers.
Traders and commercial m e n found their plans for commerce o n a national scale
impeded by local interference w i t h interstate commerce. T h e currency of the states
and the n a t i o n was hopelessly muddled. Creditors everywhere were angry about the
depreciated paper money w h i c h the agrarians had made and were attempting to
force u p o n those f r o m w h o m they had borrowed specie. I n short, i t was a war between business and populism. U n d e r the Articles of Confederation populism had a
free hand, for majorities i n the state legislatures were o m n i p o t e n t . A n y o n e who
reads the economic history of the time w i l l see w h y the solid consetvative interests
Charles A . Beard
33
of the country were weary of talk about the "rights of the people" and bent u p o n establishing f i r m guarantees for the rights of property.
T h e Congress of the Confederation was n o t long i n discovering the true character of the futile authority w h i c h the Articles had conferred u p o n i t . T h e necessity
for new sources of revenue became apparent even while the struggle for independence was yet undecided, and, i n 1781, Congress carried a resolution to the effect
that i t should be authorized to lay a duty of five percent o n certain goods. T h i s m o d erate proposition was defeated because Rhode Island tejected i t o n the grounds that
"she regarded i t the most precious jewel of sovereignty that n o state shall be called
upon to open its purse but by the authority of the state and by her o w n officers."
T w o years later Congress prepared another amendment to the Articles providing
for certain import duties, the receipts f r o m w h i c h , collected by state officers, were to
be applied to the payment of the public debt; but three years after the i n t r o d u c t i o n
of the measure, four states, including N e w York, still h e l d out against its ratificat i o n , and the project was allowed to drop. A t last, i n 1786, Congress i n a resolution
declared that the requisitions for the last eight years had been so irregular i n t h e i t
operation, so uncertain i n their collection, and so evidently unproductive, that a reliance o n t h e m i n the future would be n o less dishonorable to the undetstandings of
those w h o entertained i t t h a n i t would be dangerous to the welfare and peace of the
U n i o n . Congress, thereupon, solemnly added that i t had become its duty " t o declare
most explicitly that the crisis had arrived w h e n the people of the U n i t e d States, by
whose w i l l and for whose benefit the federal government was instituted, must decide whether they w i l l support their rank as a n a t i o n by m a i n t a i n i n g the public
faith at home and abroad, or whether for the want of a t i m e l y exertion i n establishing a general review and thereby giving strength to the Confederacy, they w i l l hazard n o t only the existence of the U n i o n but those great and invaluable privileges for
w h i c h they have so arduously and so honorably contended."
I n fact, the Articles of Confederation had hardly gone i n t o effect before the
leading citizens also began to feel that the powers of Congress were w h o l l y inadequate. I n 1780, even before their adoption, Alexander H a m i l t o n proposed a general
convention to frame a new c o n s t i t u t i o n , and f r o m that time forward he labored
w i t h remarkable zeal and wisdom to extend and popularize the idea of a strong national government. T w o years later, the Assembly of the State of N e w York recommended a c o n v e n t i o n to revise the Articles and inctease the power of Congress. I n
1783, Washington, i n a circular letter to the governors, urged that i t was indispensable to the happiness of the individual states that there should be lodged somewhere a supreme power to tegulate and govern the general concerns of the confederation. Shortly afterward (1785), Governor B o w d o i n , of Massachusetts, suggested
to his state legislature the advisability of calling a n a t i o n a l assembly to settle u p o n
and define the powers of Congress; and the legislature resolved that the government under the Articles of Confederation was inadequate and should be reformed;
but the resolution was never laid before Congress.
I n January, 1786, V i r g i n i a invited all the other states to send delegates to a convention at Annapolis to consider the question of duties o n imports and commerce i n
general. W h e n this convention assembled i n 1786, delegates f r o m only five states
34
Constitutional Government
were present, and they were disheartened at the limitations o n t h e i t powers and the
lack of interest the other states had shown i n the project. W i t h chatacteristic foresight, however, Alexander H a m i l t o n seized the occasion to secure the adoption of a
recommendation advising the states to choose representatives for another convent i o n to meet i n Philadelphia the following year " t o consider the Articles of Confederation and to propose such changes therein as m i g h t render t h e m adequate to the
exigencies of the u n i o n . " T h i s recommendation was cautiously worded, for H a m i l t o n
did n o t want to raise any unnecessary alarm. H e doubtless believed that a complete
revolution i n the o l d system was desirable, but he knew that, i n the existing state of
popular temper, i t was n o t expedient to announce his complete program. A c c o r d ingly no general reconstruction of the political system was suggested; the Articles of
Confedetation were merely to be "revised"; and the amendments were to be approved by the state legislatures as provided by that instrument.
T h e proposal of the A n n a p o l i s c o n v e n t i o n was transmitted to the state legislatures and laid before Congress. Congress thereupon resolved i n February, 1787, that
a c o n v e n t i o n should be held for the sole and express purpose of revising the A r t i cles of Confederation and reporting to itself and the legislatures of the several states
such alterations and provisions as would w h e n agreed to by Congress and confirmed
by the states tendet the federal c o n s t i t u t i o n adequate to the exigencies of government and the pteservation of the u n i o n .
I n pursuance of this call, delegates to the new c o n v e n t i o n were chosen by the
legislatures of the states or by the governors i n conformity to authority conferred by
the legislative assemblies. T h e delegates were given instructions of a genetal natute
by their respective states, none of w h i c h , apparently, contemplated any very farreaching changes. I n fact, almost all of t h e m expressly l i m i t e d t h e i t teptesentatives
to a mere revision of the A t t i c l e s of Confederation. For example, Connecticut authorized her delegates to represent and confer for the purpose mentioned i n the reso l u t i o n of Congress and to discuss such measures "agreeable to the general principles of Republican government" as they should t h i n k proper to tender the U n i o n
adequate. Delaware, however, went so far as to provide that none of the proposed
alterations should extend to the f i f t h part of the A t t i c l e s of Confederation guaranteeing that each state should be e n t i t l e d to one vote.
1
I t was a truly remarkable assembly of m e n that gathered i n Philadelphia o n
M a y 14, 1787, to undertake the work of reconstructing the A m e r i c a n system of
government. I t is n o t merely patriotic pride that compels one to assert that never i n
the history of assemblies has there been a c o n v e n t i o n of m e n richer i n political experience and i n ptactical knowledge, or endowed w i t h a profounder insight i n t o the
springs of h u m a n action and the intimate essence of government. I t is indeed an ast o u n d i n g fact that at one time so many m e n skilled i n statecraft could be found on
the very frontiers of civilization among a p o p u l a t i o n numbering about four m i l l i o n
whites. I t is n o less a cause fot a d m i r a t i o n that their instrument of government
'Rhode Island alone was unrepresented. In all, sixty-two delegates were appointed by
the states; fifty-five of these attended sometime during the sessions; but only thitty-nine
signed the finished document.
Charles A . Beard
35
should have survived the trials and ctises of a century that saw the wreck of more
t h a n a score of paper constitutions.
A l l the members had had a practical t t a i n i n g i n politics. W a s h i n g t o n , as
commander-in-chief of the Revolutionary forces, had learned w e l l the lessons and
problems of wat, and mastered successfully the n o less difficult problems of administration. T h e t w o Morrises had distinguished themselves i n grappling w i t h financial
questions as trying and perplexing as any w h i c h statesmen had ever been compelled
to face. Seven of the delegates had gained p o l i t i c a l wisdom as governors of their native states; and no less t h a n twenty-eight had setved i n Congress eithet during the
Revolution or under the Articles of Confedetation. These were m e n trained i n the
law, versed i n finance, skilled i n administration, and learned i n the p o l i t i c a l philosophy of their o w n and all earlier times. Moreover, they were m e n destined to continue public service under the government w h i c h they had met to c o n s t r u c t —
Presidents, Vice-Presidents, heads of departments, Justices of the Supreme C o u r t
were i n that imposing body. . . .
As W o o d r o w W i l s o n had concisely put i t , the framers of the C o n s t i t u t i o n represented "a strong and intelligent class possessed of u n i t y and informed by a conscious solidarity of interests." . . .
The makets of the federal C o n s t i t u t i o n represented the solid, consetvative,
commercial and financial interests of the c o u n t r y — n o t the interests w h i c h denounced and proscribed judges i n Rhode Island, N e w Jersey, and N o r t h Carolina,
and stoned t h e i t houses i n N e w York. T h e conservative interests, made desperate by
the imbecilities of the Confederation and harried by state legislatures, roused themselves from the lethatgy, drew together i n a m i g h t y effort to establish a government
that would be strong enough to pay the national debt, regulate interstate and foreign
commetce, provide for national defense, prevent fluctuations i n the currency created
by papet emissions, and control the propensities of legislative majorities to attack
private tights. . . . T h e radicals, however, like Patrick Henry, Jefferson, and Samuel
Adams, were conspicuous by their absence f r o m the c o n v e n t i o n . * . . .
2
[The makets of the C o n s t i t u t i o n were convened] to frame a government w h i c h
would meet the practical issues that had arisen under the Articles of Confederation.
T h e objections they entertained to direct popular government, and they were u n doubtedly many, were based u p o n their experience w i t h popular assemblies during
the immediately pteceding years. W i t h many of the p l a i n lessons of history before
them, they naturally feared that the rights and privileges of the m i n o t i t y w o u l d be
insecute i f the principle of majority rule was definitely adopted and provisions made
for its exercise. Furthermore, i t w i l l be remembered that up to that time the right of
all men, as men, to share i n the government had never been recognized i n practice.
Everywhere i n Europe the government was i n the hands of a ruling m o n a r c h or at
best a ruling class; everywhere the mass of the people had been regarded principally
Woodrow Wilson, Division and Reunion (New York: Longmans, Green, & Co., 1893),
p. 12.
"Compiler's note: The contents of this paragraph have been taken from positions on pp. 75-76
and 88 of the original text of The Supreme Court and the Constitution and placed here to emphasize
the economic theme.
2
Constitutional Government
36
as an arms-bearing and tax-paying multitude, uneducated, and w i t h l i t t l e hope or
capacity for advancement. T w o years were to elapse after the meeting of the grave
assembly at Philadelphia before the transformation of the Estates General i n t o the
N a t i o n a l C o n v e n t i o n i n France opened the floodgates of revolutionary ideas o n h u man rights before whose rising tide o l d landmarks of government are still being submerged. I t is small wonder, therefore, that, under the circumstances, many of the
membets of that august body held popular government i n slight esteem and took
the people i n t o consideration o n l y as far as i t was imperative " t o inspire them w i t h
the necessary confidence," as M r . Gerry frankly put i t .
Indeed, every page of the laconic record of the proceedings of the c o n v e n t i o n
preserved to posterity by M r . M a d i s o n shows conclusively that the members of that
assembly were n o t seeking to realize any fine notions about democracy and equality, b u t were striving w i t h all the resources of p o l i t i c a l wisdom at their command
to set up a system of government t h a t w o u l d be stable and efficient, safeguarded o n
one h a n d against the possibilities of despotism and o n the other against the o n slaught of majorities. I n the m i n d of M r . Gerry, the evils they had experienced
flowed " f r o m the excess of democracy," and he confessed t h a t w h i l e he was still republican, he " h a d been taught by experience the danger of the levelling s p i r i t . "
M r . R a n d o l p h i n offering to the consideration of the c o n v e n t i o n his p l a n of government, observed " t h a t the general object was to provide a cure for the evils u n der w h i c h the U n i t e d States labored; that, i n tracing these evils to their origin,
every m a n had f o u n d i t i n the turbulence and follies of democracy; that some
check therefore was to be sought for against this tendency of out governments; and
that a good Senate seemed most likely to answer the purpose." M r . H a m i l t o n , i n
advocating a life t e t m for Senators, urged that " a l l communities divide themselves
i n t o the few and the many. T h e first are r i c h and w e l l b o r n and the othet the mass
of the people w h o seldom judge or determine r i g h t . "
3
4
5
Gouverneur Morris wanted to check the "precipitancy, changeableness, and
excess" of the representatives of the people by the ability and virtue of m e n "of
great and established property—aristocracy; m e n w h o f r o m pride w i l l support consistency and petmanency. . . . Such an aristocratic body w i l l keep d o w n the turbulence of democracy." W h i l e these extreme doctrines were somewhat counterbalanced by the democratic principles of M r . W i l s o n w h o urged that "the
government ought to possess, n o t o n l y first, the force, but second the m i n d or sense
of the people at latge," Madison doubtless summed up i n a btief sentence the general o p i n i o n of the c o n v e n t i o n w h e n he said that to secure private rights against
majority factions, and at the same time to preserve the spirit and form of popular
government, was the great object to w h i c h their inquiries had been directed.
6
T h e y were anxious above everything else to safeguard the rights of private
property against any leveling tendencies o n the part of the propertyless masses.
^Jonathan Elliot, The Debates in the Several State Conventions on the Adoption of the Fed
eral Constitution (Washington, D.C.: The Editor, 1827-1830), vol. v, p. 160.
Hbid., vol. v, p. 136.
Hhid., vol. v, p. 138.
The Federalist, No. 10.
6
Charles A . Beard
37
Gouverneur Morris, i n speaking o n the p r o b l e m of a p p o r t i o n i n g representatives,
correctly stated the sound historical fact w h e n he declared: " L i f e and liberty were
generally said to be of mote value t h a n property. A n accurate view of the matter
would, nevertheless, prove that property was the m a i n object o f society. . . . I f
property, t h e n , was the m a i n object of government, certainly i t ought to be one
measure of the influence due to those w h o were to be affected by the governm e n t . " M r . K i n g also agreed t h a t "property was the primary object of society."
and M r . Madison warned the c o n v e n t i o n t h a t i n f r a m i n g a system w h i c h they
wished to last for ages they must n o t lose sight of the changes w h i c h the ages
would produce i n the forms and d i s t r i b u t i o n of property. I n advocating a l o n g t e r m
i n order to give independence and firmness to the Senate, he described these i m pending changes: " A n increase of p o p u l a t i o n w i l l of necessity increase the proport i o n of those w h o w i l l labor under all the hardships o f life and secretly sigh for a
more equal d i s t r i b u t i o n of its blessings. These may i n t i m e outnumber those w h o
are placed above the feelings of indigence. A c c o r d i n g to the equal laws of suffrage,
the power w i l l slide i n t o the hands o f the former. N o agrarian attempts have yet
been made i n this country, but symptoms of a l e v e l l i n g spirit, as we have understood have sufficiently appeared, i n a certain quarter, to give notice of the future
danger." A n d again, i n support of the argument for a property q u a l i f i c a t i o n o n
voters, Madison urged: " I n future times, a great m a j o t i t y of the people w i l l n o t
only be w i t h o u t landed, but any other sort of property. These w i l l either combine,
under the influence of t h e i r c o m m o n s i t u a t i o n , — i n w h i c h case the rights of property and the public liberty w i l l n o t be secure i n t h e i r hands,—or w h a t is more
probable, they w i l l become the tools of opulence and a m b i t i o n ; i n w h i c h case
there w i l l be equal danger o n anothet s i d e . " Various projects for setting up class
rule by the establishment of property qualifications for voters and officers were advanced i n the c o n v e n t i o n , but they wete defeated. . . .
7
8
9
10
The absence of such property qualifications is certainly not due to any belief i n Jefferson's ffee-and-equal doctrine. It is due rather to the fact that the members of the
convention could not agree on the nature and amount of the qualifications. Naturally a landed qualification was suggested, but for obvious reasons it was tejected.
Although it was satisfactory to the landed gentry of the South, it did not suit the f i nancial, commercial, and manufacturing gentry of the North. If it was high, the
latter would be excluded; if it was low it would let in the populistic farmers who
had already made so much trouble in the state legislatures with paper-money
schemes and other devices for "relieving agriculture." One of the chief reasons for
calling the convention and framing the Constitution was to promote commerce
and industry and to protect personal property against the "depredations" of Jefferson's noble freeholders. O n the other hand a personal-property qualification, high
enough to please merchant princes like Robert Morris and Nathaniel Gorham
would shut out the Southern planters. Again, an alternative of land or personal
'Elliot's Debates, op. cit., vol. v, p. 279.
Ibid., p. 280.
'Ibid., p. 243.
i°Ibid., p. 387.
8
Constitutional Government
38
property, high enough to afford safeguards to large intetests, would doubtless bring
about the rejection of the whole Constitution by the troublemaking farmers who
had to pass upon the question of ratification.* . . .
Nevertheless, by the system of checks and balances placed i n the government, the
c o n v e n t i o n safeguatded the interests of property against attacks by majorities. T h e
House of Representatives, M r . H a m i l t o n pointed out, "was so formed as to render it
particulatly the guardian of the poorer orders of citizens," w h i l e the Senate was to
ptesetve the rights of property and the intetests of the m i n o t i t y against the demands
of the m a j o r i t y . I n the t e n t h number of The Federalist, M r . Madison argued i n a
philosophic v e i n i n support of the proposition that it was necessary to base the political system o n the actual conditions of "natural inequality." U n i f o t m i t y of interests throughout the state, he contended, was impossible o n account of the diversity
i n the faculties of men, f r o m w h i c h the rights of property originated; the protection
of these faculties was the first object of government; f r o m the protection of different
and unequal faculties of acquiring property the possession of different degrees and
kinds of property immediately resulted; f r o m the influence of these o n the sentiments and views of the respective proprietors ensued a division of society i n t o different interests and parties; the unequal d i s t r i b u t i o n of wealth inevitably led to a
clash of interests i n w h i c h the majority was liable to carry out its policies at the expense of the m i n o r i t y ; hence, he added, i n concluding this splendid piece of logic,
"the majotity, h a v i n g such coexistent passion or interest, must be rendered by theit
numbet and local situation unable to concert and carry i n t o effect schemes of oppression"; and i n his o p i n i o n i t was the great merit of the newly framed Constitut i o n that it secured the tights of the m i n o r i t y against "the superior force of an interested and overbearing majority."
11
12
T h i s very system of checks and balances, w h i c h is undeniably the essential element of the C o n s t i t u t i o n , is b u i l t upon the doctrine that the popular branch of the
government cannot be allowed f u l l sway, and least of all i n the enactment of laws
t o u c h i n g the rights of property. T h e exclusion of the ditect popular vote i n the
election of the President; the creation, again by indirect election, of a Senate w h i c h
the framers hoped would represent the wealth and conservative interests of the
c o u n t r y ; and the establishment of an independent judiciary appointed by the Ptesident w i t h the concutrence of the Senate—all these devices bear witness to the fact
that the undetlying purpose of the C o n s t i t u t i o n was n o t the establishment of popular government by means of parliamentary majorities.
Page after page of The Federalist is directed to that p o t t i o n of the electorate
w h i c h was disgusted w i t h the " m u t a b i l i t y of the public councils." W t i t i n g o n the
+
'•Elliot's Debates, op. at., vol. v, p. 244lbid., vol. v, p. 203.
'Compiler's note: This single paragraph from "Whom Does Congress Represent?" Harper's
Magazine, Jan. 1930, pp. 1HH-152, has been inserted here because of its value in amplifying the passages from The Supreme Court and the Constitution. Reprinting from this article by Beard has been
done with the permission of Harper's Magazine.
^Compiler's note: Popular election of senators was achieved in 1913 through the Seventeenth
Amendment to the Constitution.
n
Charles A . Beard
39
presidential veto H a m i l t o n says: " T h e propensity of the legislative department to
inttude upon the tights, and absorb the powers, of othet departments has already
been suggested and repeated. . . . I t may perhaps be said that the power of preventing bad laws included the power of preventing good ones; and may be used to
the one purpose as well as the othet. But this objection w i l l have l i t t l e weight w i t h
those w h o can properly estimate the mischiefs of that inconstancy and m u t a b i l i t y
i n the laws w h i c h form the gteatet blemish i n the character and genius of our governments. They w i l l consider every i n s t i t u t i o n calculated to restrain the excess of
law-making and to keep things i n the same state i n w h i c h they happen to be at any
given petiod, as mote likely to do good t h a n h a r m ; because i t is favorable to greater
stability i n the system of legislation. T h e injury w h i c h may be possibly done by defeating a few good laws w i l l be amply compensated by the advantage of preventing a
number of bad ones."
W h e n the framers of the C o n s t i t u t i o n had completed the remarkable instrument w h i c h was to establish a n a t i o n a l government capable of discharging effectively certain great functions and checking the propensities of populat legislatures
to attack the tights of private property, a fotmidable task remained before t h e m —
the task of securing the adoption of the new frame of government by states t o r n
w i t h popular dissensions. T h e y knew very well that the state legislatures w h i c h
had been so negligent i n paying their quotas [of money] under the Articles [of
Confedetation] and w h i c h had been so jealous of their rights, would probably stick
at ratifying such a national insttument of government. A c c o r d i n g l y they cast aside
that clause i n the Articles t e q u i t i n g amendments to be ratified by the legislatures
of all the states; and advised that the new C o n s t i t u t i o n should be ratified by conventions i n the several states composed of delegates chosen by the voters.* T h e y
furthermore declared—and this is a fundamental m a t t e r — t h a t w h e n the conventions of nine states had ratified the C o n s t i t u t i o n the new government should go
i n t o effect so far as those states were concerned. T h e chief reason for resorting to
ratifications by conventions is laid d o w n by H a m i l t o n i n the twenty-second n u m ber of The Federalist: " I t has n o t a l i t t l e contributed to the infirmities of the existing federal system that it nevet had a ratification by the people. Resting o n n o bettet foundation t h a n the consent of the several legislatures, i t has been exposed to
frequent and intticate questions concerning the validity of its powets; and has i n
some instances given b i r t h to the enotmous doctrine of a right of legislative repeal.
O w i n g its ratification to the law of a state, i t has been contended that the same authority m i g h t repeal the law by w h i c h i t was ratified. However gross a heresy i t may
be to m a i n t a i n that a party to a compact has a right to tevoke that compact, the
docttine itself has respectable advocates. T h e possibility of a question of this nature proves the necessity of laying the foundations of our n a t i o n a l government
deeper t h a n i n the mete sanction of delegated authority. T h e fabric of A m e r i c a n
empire ought to rest o n the solid basis of the consent of the people. T h e streams of
"Compiler's note: The original text, p. 75, comments: "It was largely because the framers of the
Constitution knew the temper and class bias of the state legislatures that they arranged that the new
Constitution should be ratified by conventions."
40
Constitutional Government
n a t i o n a l power ought t o flow immediately f r o m that pure original foundation of all
legitimate a u t h o r i t y . "
O f course, the c o n v e n t i o n d i d n o t resort to the revolutionary policy of transm i t t i n g the C o n s t i t u t i o n directly to the conventions o f the several states. I t merely
laid the finished instrument before the Confederate Congress w i t h the suggestion
that i t should be submitted to "a c o n v e n t i o n of delegates chosen i n each state by
the people thereof, under the recommendation o f its legislature, for their assent and
ratification; and each c o n v e n t i o n assenting thereto and ratifying the same should
give notice thereof t o the U n i t e d States i n Congress assembled." T h e c o n v e n t i o n
went o n to suggest that w h e n nine states had ratified the C o n s t i t u t i o n , the Confederate Congress should extinguish itself by making provision for the elections necessary t o put the new government i n t o effect. . . .
A f t e r t h e new C o n s t i t u t i o n was published and ttansmitted t o the states, there
began a long and bitter fight over ratification. A veritable flood of pamphlet literature descended u p o n the country, and a collection of these pamphlets by H a m i l t o n ,
Madison, and Jay, brought together undet the t i t l e of The Federalist—though
clearly
a piece o f campaign literature—has remained a permanent part of the contemporary sources o n the C o n s t i t u t i o n and has been regarded by many lawyers as a commentary second i n value o n l y to the decisions of the Supreme C o u r t . W i t h i n a year
the champions o f the new government found themselves victotious, for o n June 2 1 ,
1788, the n i n t h state, N e w Hampshire, ratified the C o n s t i t u t i o n , and accordingly
the new government m i g h t go i n t o effect as between the agreeing states. W i t h i n a
few weeks, the nationalist party i n V i r g i n i a and N e w York succeeded i n w i n n i n g
these t w o states, and i n spite o f the fact that N o r t h Carolina and Rhode Island had
n o t yet ratified the C o n s t i t u t i o n , Congress determined to put the instrument i n t o
effect i n accordance w i t h the recommendations of the c o n v e n t i o n . Elections for
the new government were held; the date M a r c h 4, 1789, was fixed for the formal establishment o f the new system; Congress secured a quorum o n A p r i l 6; and o n
A p r i l 30 W a s h i n g t o n was inaugurated at the Federal H a l l i n W a l l Street, N e w York.
r*^
CLICK HERE TO ACCESS THE QUIZ CONCERNING THIS READING
Charles A. Beard suggests that there is a dichotomy between the values of the Constitution and those of the Declaration of Independence, between Jefferson and his followers
on the one hand, and Madison and Hamilton on the other. He suggests that Jefferson and
the Revolutionists supported political equality and individual freedom and opposed a
strong central government. The spirit of the Revolution, argues Beard, spawned the Articles of Confederation, which purposely created a weak and ineffective government. The
Revolutionists, in general, were not men of property and thus did not believe that a strong
central government was necessary to protect their interests. By contrast, the framers of the
Constitution reflected the spirit of Alexander Hamilton, who ironically was not a man of
substantial property himself, but who advocated an energetic and dominant national government. Hamilton, like many of the framers, was a strong proponent of governmental protection of property interests.