A Patriot's History of the United States: From Columbus's Great Discovery to the War on Terror
Page 21
Modern historians have leaped to criticize the convention’s decision, and one could certainly apply the colloquial definition of a compromise as: doing less than what you know is right. Historian Joseph Ellis noted that “the distinguishing feature of the [Constitution] when it came to slavery was its evasiveness.”67 But let’s be blunt: to have pressed the slavery issue in 1776 would have killed the Revolution, and to have pressed it in 1787 would have aborted the nation. When the ink dried on the final drafts, the participants had managed to agree on most of the important issues, and where they still disagreed, they had kept those divisions from distracting them from the task at hand. More important, the final document indeed represented all: “In 560 roll-calls, no state was always on the losing side, and each at times was part of the winning coalition.”68 The framers were highly focused only on Republic building, acting on the assumption that the Union was the highest good, and that ultimately all problems, including slavery, would be resolved if they could only keep the country together long enough.
From the outset, the proceedings had perched perilously on the verge of collapse, making the final document indeed a miracle. When the convention ended, a woman buttonholed Franklin and asked what kind of government the nation had. “A Republic, madam,” Franklin replied, “if you can keep it.”
Federalism Redefined
The completed constitution represented a marked transformation in the American system of federalism. Defined in the early state constitutions, “federalism” meant a belief in separate governments—state, local, national, with state sovereignty—but the 1787 document turned the system upside down. Article VI is an uncompromising statement that the laws of Congress are “the supreme law of the land.” Nevertheless, the purpose of this power—the preservation of liberty—remained evident throughout the document.
This achievement required the delegates to endow the national government with a grant of specific, crucial “enumerated powers,” including the authority to tax internally and externally (via excises and tariffs), regulate foreign and interstate commerce, enforce contracts and property rights, raise armies in time of peace and war, make treaties, and make all laws “necessary and proper” to carry out these enumerated powers. Conversely, the states could no longer levy tariff and customs duties, coin and print money, or impair contracts (via debtors’ laws). These changes had crucial, far-reaching consequences.
Under the three-branched federal government, which boasted the checks and balances for which the Federalists are rightly famous, Article II created a first-ever American national executive, the president of the United States. Elected indirectly by an electoral college (a shield against direct democracy and the domination of large population centers), the president was to serve a four-year term with the option of perpetual reelection. He had authority to appoint all executive officials and federal judges, with the approval of the Senate. Most important, the president was to be the major architect of American foreign policy, serving as the civilian commander in chief of the military forces and generally designing and executing foreign policy with the advice and consent of the Senate. Perhaps the most significant power given the president was the executive’s ability to veto congressional laws, subject to an override vote by Congress of two thirds of the members, “checking” an otherwise mighty chief executive.
In retrospect, despite concern raised at numerous points in America’s history about an “imperial” presidency or a chief executive’s wielding “dictator’s powers,” the Founders cleverly avoided the bloody instability that characterized many European nations like France, and the complete powerlessness that afflicted other foreign executives in places like the 1920s German Weimar Republic, site of the ill-considered splitting of executive authority. And if American presidents have aggrandized their power, it is largely because Congress, the courts, and most of all, the people, have willingly tolerated unconstitutional acquisitiveness. Ironically, this has occurred largely because of the very success and integrity of the process: Americans tend to think, despite frequent rhetoric to the contrary, that their leaders are not “crooks,” nor do they view them as power mad. The expansion of presidential power has, then, relied on the reality that, over time, the large majority of chief executives have done their job with a degree of humility, recognizing that the people remain sovereign in the end.
Article III outlined a first-ever national judiciary. Federal judges would have the jurisdiction over all federal and interstate legal disputes. They would serve lifetime terms on condition of good behavior, and federal district courts would hear cases that could be appealed to federal circuit courts and, ultimately, to the Supreme Court of the United States. It is important to note that the Constitution in no way granted the federal courts the power of judicial review, or an ultimate interpretive power over constitutional issues. Modern federal courts possess this huge power thanks to a long series of precedents beginning with the 1803 case of Marbury v. Madison. If the Founders intended courts to possess this ultimate constitutional authority, they did not say so in the Constitution. Moreover, the federal courts’ authority was simultaneously checked by Congress’s prerogative to impeach federal judges (and the president) for “high crimes and misdemeanors,” and a score of federal judges have been impeached and removed for offenses such as perjury as recently as the 1980s.
Article I, the most complex section of the Constitution, outlined the legislative branch of government. Congressmen would serve in the House of Representatives at a number proportional to their states’ census figures, with the three-fifths clause intact. Representatives were to be elected directly by the people to two-year terms and, unlike the Confederation legislators, would have the option of perpetual reelection. The House members’ chief authority, the power of the purse, descended from English and colonial precedent that tax and revenue measures had to emanate from the House of Representatives.
The United States Senate is the second legislative component. Each state legislature elected two senators to serve six-year terms with the option of perpetual reelection. Older than congressmen, senators ruled on bills passed by the House. Most important, the Senate had the approval power over all presidential appointees, and also had ratification power over treaties. Both houses of Congress had to agree to declare war, and both were involved in removal of a president should the need arise: if a federal judge or the president committed high crimes and misdemeanors, articles of impeachment were to be voted out of the House, with the subsequent trial in the Senate, where senators served as jurors.
Surveying the Constitution, it is apparent that the nationalistic proponents of the Virginia Plan carried the day. No branch of the federal government had ultimate veto power over state legislation, as ardent nationalists advocated, and the Connecticut Compromise guaranteed a degree of state equality and power in the Senate. Yet the new Constitution marked a radical departure from the old Confederation model, and ultimately the nationalists gained a veto of sorts through the extraconstitutional practice of judicial review. Opponents of centralized governmental authority were awed by the proposed document, and many doubted that the public would ratify and institute such a powerful central government so soon after overthrowing a monarch.
The ratification stipulations enumerated in the final article thus carried great importance. How would the proposed governmental plan be debated and voted upon? Had the delegates followed the letter of the law, they would have been forced to submit the new Constitution to the Confederation Congress in vain hope of the unanimous approval necessary to legally change the government. Of course, the nationalists had no intention of obeying such a law. The Constitution instead contained its own new rules, calling each state to convene a special convention to debate and ratify or defeat the proposed governmental plan. If nine states (not thirteen) ratified, the Constitution stipulated a new government would form.69
Having thus erected their grand plan to reshape American republicanism, the nationalists returned to their home states to l
abor on behalf of its ratification. They did so well aware that the majority of Americans were highly suspicious of the term “nationalism.” Politically aware citizens thought of themselves as Whigs who backed the kind of federalism represented by the Confederation and the New Jersey Plan. In modern parlance, then, an image makeover was due. Nationalists shrewdly began, in direct contradiction to historical and constitutional precedent, to refer to themselves and their philosophy as federalism, not nationalism. Naturally, their Federalist opponents were aghast to hear their political enemies using the name Federalists for their own purposes and, worse, to hear the original federalism now redefined by the new Federalists as Anti-Federalism! Two rival political factions had formed and the debate was on, but one already had perceived that control of the language is everything in politics.70
Revolutionary and Early National Political Factions and Parties, 1781–1815
1776–1787
Federalists vs. Nationalists
1787–1793
Anti-Federalists vs. Federalists
1793–1815
Jeffersonian Republicans vs. Federalists
The Ratification Debate
The call for special ratifying conventions perfectly met the new Federalists’ practical needs and ideological standards, for they suspected they would lose a popular vote, a vote in the Confederation Congress, or a vote of the state legislatures. Their only hope lay in a new venue where they had a level playing field and could use their powers of persuasion and growing command of the language of politics to build momentum. Their pragmatism dovetailed nicely with ideological precedents that turned the tables on the radicals, who had always argued that constitutional law was fundamental law and should be approved by specially selected governmental bodies, not common state legislatures. Nearly all of the new state constitutions were ratified by special conventions, which added to the leverage of precedent. Combining the ideological precedents with a rhetorical call for the sovereignty of the people, Federalist orators masterfully crafted a best-case scenario for their cause. They portrayed the special ratifying conventions as the best means of voicing the direct will of the people, and did this while studiously avoiding both a direct democratic vote and circumventing established elected bodies that stood against them. Their strategy was nothing less than a political tour de force.71
Each state proceeded to select delegates in different ways. In four states, voters directly elected delegates, whereas in the remainder (except Rhode Island), delegates served by a vote of state legislators or executive appointment. Only Rhode Island held a direct voter referendum on the Constitution. The Federalists knew that by moving quickly they could frame the ratification process, and they won controlling majorities in five of the thirteen states. Each of those states ratified the document within a few weeks. Using this initial support as a base, the Federalists continued to wage a propaganda campaign calling for sovereignty of the people over the state legislatures and outflanking the less articulate Anti-Federalist majority.
Much printer’s ink has been spilled by historians arguing about the relative merits of the positions held by the Federalists and the Anti-Federalists. Prior to the twentieth century, the Federalists held an elevated position in the minds of most Americans who were conscious of history. But in 1913, Charles Beard’s Economic Interpretation of the Constitution delivered a broadside accelerated by economic principles of class struggle.72 Beard argued that the Federalists, acting on their own self-interest as planters and businessmen, greedily plotted to ensure their own economic supremacy. Using voting records of the delegates, and examining their backgrounds, Beard concluded there was little concern for the public interest by these founders. In 1958, Forrest McDonald dismantled Beard’s economic determinism, only to be countered by Robert McGuire and Robert Ohsfelt’s voting-model analysis.73
It goes without saying that Beard is correct to identify the Anti-Federalists as farmers and middle-class workingmen, but this definition bridges a wide range of the population in 1787, including subsistence farmers in western Pennsylvania and upstate New York alongside elite southern planters who led the movement. Patrick Henry, Richard Henry Lee, William Grayson, and James Monroe, firm Anti-Federalist leaders, were as wealthy as any in the Federalist camp, and were joined by Sam Adams (a chronic bankrupt), Melancton Smith, Luther Martin, and New York’s George Clinton. Thomas Jefferson, arguably the best known Anti-Federalist of all, did not join the movement until the early 1790s and, at any rate, was out of the country from 1787–88.
And yet, Beard’s definitions and the complaints by Howard Zinn and his disciples wrongly assume that people were (and are) incapable of acting outside of self-interest. Had not the great Washington argued as much? Yet Washington had to look no further than his own life to realize the error of his position: he was on track to gain a general officer’s commission in the British army, replete with additional land grants for dutiful service to His Majesty. Instead, Washington threw it away to lead a ragtag army of malcontents into the snow of Valley Forge and the icy waters of the Delaware. Self-interest indeed! What self-interest caused Francis Lewis, a signer of the Declaration, to lose his properties and see his wife taken prisoner by the British? How does self-interest account for the fate of Judge Richard Stockton, a delegate from New Jersey to the Continental Congress, who spent time in British jails and whose family had to live off charity—all because he dared sign the Declaration? On the other hand, Patrick Henry, Richard Henry Lee, and others all stood to gain handsomely from the growing value of slave labor in the new Constitution—the one they opposed! In sum, no matter how Beard and his successors torture the statistics, they cannot make the Constitutional Convention scream “class struggle.”74 The debate was genuine; it was about important ideas, and men took positions not for what they gained financially but for what they saw as the truth.
After a slow start, the Anti-Federalists rallied and launched an attack on the proposed Constitution. Employing arguments that sounded strikingly Whiggish, Anti-Federalists spoke of the Federalists in the same language with which they had condemned the British monarchy in the previous decade. They described the Constitution as a document secretly produced by lawyers and a hated “aristocratic monied interest” that aimed to rob Americans of their hard-won liberties. Echoing Montesquieu and other Enlightenment thinkers, they insisted government should remain close to home, and that the nation would be too large to govern from a “federal town.” Richard Henry Lee captured the emotion of the Constitution’s opponents, calling the document “dangerously oligarchic” and the work of a “silent, powerful and ever active conspiracy of those who govern.”75 Patrick Henry warned Americans to “Guard with jealous attention the public liberty. Suspect everyone who approaches that jewel.”76 James Monroe, the future president, worried that the document would lead to a monarchical government.
Anti-Federalists expressed shock at the extent of the taxation and warfare powers. One delegate asked, “After we have given them all our money, established them in a federal town, given them the power of coining money and raising a standing army to establish their arbitrary government; what resources [will] the people have left?”77 Anti-Federalists furiously attacked the Federalists’ three-tiered system, arguing that the proposed constitutional districts did not allow for direct representation, that congressmen should be elected annually, and that the proposed Senate was undemocratic. They saw the same aristocratic tendency in the proposed federal judiciary, with its life terms. And, of course, because Whigs feared executive authority, Anti-Federalists were appalled at the specter of an indirectly elected president serving unlimited terms and commanding a standing army. Cato, one of the most widely read Anti-Federalists, predicted such a system would degenerate into arbitrary conscription of troops for the army.
However, the Anti-Federalists’ most telling criticism, and the one for which American civilization will forever remain in their debt, was their plea for a bill of rights. Federalists, who believed the state constitution
s adequately protected civil liberties, were stunned by this libertarian critique of their work. Jefferson, who had studiously avoided the debate, wrote from France that “a bill of rights is what a people are entitled to against every government on earth, general or particular, and what no just government should refuse or rest on inference.”78 To grant such sweeping powers without simultaneously protecting life, liberty, and property seemed like madness. Political rhetoric aside, Anti-Federalists were amazed at what they saw as a direct assault on the principles of the Revolution. One Anti-Federalist, writing as Centinel, spoke for all his brethren when he expressed “astonishment” that “after so recent a triumph over British despots…a set of men amongst ourselves should have the effrontery to attempt the destruction of our liberties.”79
Obviously, the Anti-Federalists opposed many things, but what were they for? By 1787–88 most of them supported a Confederation government revised along the lines of the New Jersey Plan. They maintained that no crisis actually existed—that the nation was fine and that a few adjustments to the Articles would cure whatever maladies existed. But the Anti-Federalists waited too long to agree to any amendment of the Articles, and they lost their opportunity. Even some of their leading spokesmen, such as Patrick Henry, unwittingly undercut the sovereign-state position when he wrote, “The question turns…on that poor little thing—the expression, We, the People instead of the United States of America.”80 With that statement, Henry reinforced Jefferson’s own assertion in the Declaration that the people of the colonies—and not the colonies themselves—separated from England. By invoking “the people” as opposed to the “states,” Henry also stated a position not far from that of Lincoln in 1861, when he argued that disunion was no more possible than cutting a building in half and thinking it would still keep out the rain. The Federalists saw their opening and brilliantly sidestepped the question of state-versus-federal sovereignty by arguing that the Constitution made the people sovereign, not the state or the federal government.