The History of the United States Part 11

The Balance between the Planting and the Commercial States.-After the debates had gone on for a few weeks, Madison came to the conclusion that the real division in the convention was not between the large and the small states but between the planting section founded on slave labor and the commercial North. Thus he antic.i.p.ated by nearly three-quarters of a century "the irrepressible conflict." The planting states had neither the free white population nor the wealth of the North. There were, counting Delaware, six of them as against seven commercial states. Dependent for their prosperity mainly upon the sale of tobacco, rice, and other staples abroad, they feared that Congress might impose restraints upon their enterprise. Being weaker in numbers, they were afraid that the majority might lay an unfair burden of taxes upon them.

Representation and Taxation.-The Southern members of the convention were therefore very anxious to secure for their section the largest possible representation in Congress, and at the same time to restrain the taxing power of that body. Two devices were thought adapted to these ends. One was to count the slaves as people when apportioning representatives among the states according to their respective populations; the other was to provide that direct taxes should be apportioned among the states, in proportion not to their wealth but to the number of their free white inhabitants. For obvious reasons the Northern delegates objected to these proposals. Once more a compromise proved to be the solution. It was agreed that not all the slaves but three-fifths of them should be counted for both purposes-representation and direct taxation.

Commerce and the Slave Trade.-Southern interests were also involved in the project to confer upon Congress the power to regulate interstate and foreign commerce. To the manufacturing and trading states this was essential. It would prevent interstate tariffs and trade jealousies; it would enable Congress to protect American manufactures and to break down, by appropriate retaliations, foreign discriminations against American commerce. To the South the proposal was menacing because tariffs might interfere with the free exchange of the produce of plantations in European markets, and navigation acts might confine the carrying trade to American, that is Northern, ships. The importation of slaves, moreover, it was feared might be heavily taxed or immediately prohibited altogether.

The result of this and related controversies was a debate on the merits of slavery. Gouverneur Morris delivered his mind and heart on that subject, denouncing slavery as a nefarious inst.i.tution and the curse of heaven on the states in which it prevailed. Mason of Virginia, a slaveholder himself, was hardly less outspoken, saying: "Slavery discourages arts and manufactures. The poor despise labor when performed by slaves. They prevent the migration of whites who really strengthen and enrich a country."

The system, however, had its defenders. Representatives from South Carolina argued that their entire economic life rested on slave labor and that the high death rate in the rice swamps made continuous importation necessary. Ellsworth of Connecticut took the ground that the convention should not meddle with slavery. "The morality or wisdom of slavery," he said, "are considerations belonging to the states. What enriches a part enriches the whole." To the future he turned an untroubled face: "As population increases, poor laborers will be so plenty as to render slaves useless. Slavery in time will not be a speck in our country." Virginia and North Carolina, already overstocked with slaves, favored prohibiting the traffic in them; but South Carolina was adamant. She must have fresh supplies of slaves or she would not federate.

So it was agreed that, while Congress might regulate foreign trade by majority vote, the importation of slaves should not be forbidden before the lapse of twenty years, and that any import tax should not exceed $10 a head. At the same time, in connection with the regulation of foreign trade, it was stipulated that a two-thirds vote in the Senate should be necessary in the ratification of treaties. A further concession to the South was made in the provision for the return of runaway slaves-a provision also useful in the North, where indentured servants were about as troublesome as slaves in escaping from their masters.

The Form of the Government.-As to the details of the frame of government and the grand principles involved, the opinion of the convention ebbed and flowed, decisions being taken in the heat of debate, only to be revoked and taken again.

The Executive.-There was general agreement that there should be an executive branch; for reliance upon Congress to enforce its own laws and treaties had been a broken reed. On the character and functions of the executive, however, there were many views. The New Jersey plan called for a council selected by the Congress; the Virginia plan provided that the executive branch should be chosen by the Congress but did not state whether it should be composed of one or several persons. On this matter the convention voted first one way and then another; finally it agreed on a single executive chosen indirectly by electors selected as the state legislatures might decide, serving for four years, subject to impeachment, and endowed with regal powers in the command of the army and the navy and in the enforcement of the laws.

The Legislative Branch-Congress.-After the convention had made the great compromise between the large and small commonwealths by giving representation to states in the Senate and to population in the House, the question of methods of election had to be decided. As to the House of Representatives it was readily agreed that the members should be elected by direct popular vote. There was also easy agreement on the proposition that a strong Senate was needed to check the "turbulence" of the lower house. Four devices were finally selected to accomplish this purpose. In the first place, the Senators were not to be chosen directly by the voters but by the legislatures of the states, thus removing their election one degree from the populace. In the second place, their term was fixed at six years instead of two, as in the case of the House. In the third place, provision was made for continuity by having only one-third of the members go out at a time while two-thirds remained in service. Finally, it was provided that Senators must be at least thirty years old while Representatives need be only twenty-five.

The Judiciary.-The need for federal courts to carry out the law was hardly open to debate. The feebleness of the Articles of Confederation was, in a large measure, attributed to the want of a judiciary to hold states and individuals in obedience to the laws and treaties of the union. Nevertheless on this point the advocates of states' rights were extremely sensitive. They looked with distrust upon judges appointed at the national capital and emanc.i.p.ated from local interests and traditions; they remembered with what insistence they had claimed against Britain the right of local trial by jury and with what consternation they had viewed the proposal to make colonial judges independent of the a.s.semblies in the matter of their salaries. Reluctantly they yielded to the demand for federal courts, consenting at first only to a supreme court to review cases heard in lower state courts and finally to such additional inferior courts as Congress might deem necessary.

The System of Checks and Balances.-It is thus apparent that the framers of the Const.i.tution, in shaping the form of government, arranged for a distribution of power among three branches, executive, legislative, and judicial. Strictly speaking we might say four branches, for the legislature, or Congress, was composed of two houses, elected in different ways, and one of them, the Senate, was made a check on the President through its power of ratifying treaties and appointments. "The acc.u.mulation of all powers, legislative, executive, and judicial, in the same hands," wrote Madison, "whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be p.r.o.nounced the very definition of tyranny." The devices which the convention adopted to prevent such a centralization of authority were exceedingly ingenious and well calculated to accomplish the purposes of the authors.

The legislature consisted of two houses, the members of which were to be apportioned on a different basis, elected in different ways, and to serve for different terms. A veto on all its acts was vested in a President elected in a manner not employed in the choice of either branch of the legislature, serving for four years, and subject to removal only by the difficult process of impeachment. After a law had run the gantlet of both houses and the executive, it was subject to interpretation and annulment by the judiciary, appointed by the President with the consent of the Senate and serving for life. Thus it was made almost impossible for any political party to get possession of all branches of the government at a single popular election. As Hamilton remarked, the friends of good government considered "every inst.i.tution calculated to restrain the excess of law making and to keep things in the same state in which they happen to be at any given period as more likely to do good than harm."

The Powers of the Federal Government.-On the question of the powers to be conferred upon the new government there was less occasion for a serious dispute. Even the delegates from the small states agreed with those from Ma.s.sachusetts, Pennsylvania, and Virginia that new powers should be added to those intrusted to Congress by the Articles of Confederation. The New Jersey plan as well as the Virginia plan recognized this fact. Some of the delegates, like Hamilton and Madison, even proposed to give Congress a general legislative authority covering all national matters; but others, frightened by the specter of nationalism, insisted on specifying each power to be conferred and finally carried the day.

Taxation and Commerce.-There were none bold enough to dissent from the proposition that revenue must be provided to pay current expenses and discharge the public debt. When once the dispute over the apportionment of direct taxes among the slave states was settled, it was an easy matter to decide that Congress should have power to lay and collect taxes, duties, imposts, and excises. In this way the national government was freed from dependence upon stubborn and tardy legislatures and enabled to collect funds directly from citizens. There were likewise none bold enough to contend that the anarchy of state tariffs and trade discriminations should be longer endured. When the fears of the planting states were allayed and the "bargain" over the importation of slaves was reached, the convention vested in Congress the power to regulate foreign and interstate commerce.

National Defense.-The necessity for national defense was realized, though the fear of huge military establishments was equally present. The old practice of relying on quotas furnished by the state legislatures was completely discredited. As in the case of taxes a direct authority over citizens was demanded. Congress was therefore given full power to raise and support armies and a navy. It could employ the state militia when desirable; but it could at the same time maintain a regular army and call directly upon all able-bodied males if the nature of a crisis was thought to require it.

The "Necessary and Proper" Clause.-To the specified power vested in Congress by the Const.i.tution, the advocates of a strong national government added a general clause authorizing it to make all laws "necessary and proper" for carrying into effect any and all of the enumerated powers. This clause, interpreted by that master mind, Chief Justice Marshall, was later construed to confer powers as wide as the requirements of a vast country spanning a continent and taking its place among the mighty nations of the earth.

Restraints on the States.-Framing a government and endowing it with large powers were by no means the sole concern of the convention. Its very existence had been due quite as much to the conduct of the state legislatures as to the futilities of a paralyzed Continental Congress. In every state, explains Marshall in his Life of Washington, there was a party of men who had "marked out for themselves a more indulgent course. Viewing with extreme tenderness the case of the debtor, their efforts were unceasingly directed to his relief. To exact a faithful compliance with contracts was, in their opinion, a harsh measure which the people could not bear. They were uniformly in favor of relaxing the administration of justice, of affording facilities for the payment of debts, or of suspending their collection, and remitting taxes."

The legislatures under the dominance of these men had enacted paper money laws enabling debtors to discharge their obligations more easily. The convention put an end to such practices by providing that no state should emit bills of credit or make anything but gold or silver legal tender in the payment of debts. The state legislatures had enacted laws allowing men to pay their debts by turning over to creditors land or personal property; they had repealed the charter of an endowed college and taken the management from the hands of the lawful trustees; and they had otherwise interfered with the enforcement of private agreements. The convention, taking notice of such matters, inserted a clause forbidding states "to impair the obligation of contracts." The more venturous of the radicals had in Ma.s.sachusetts raised the standard of revolt against the authorities of the state. The convention answered by a brief sentence to the effect that the President of the United States, to be equipped with a regular army, would send troops to suppress domestic insurrections whenever called upon by the legislature or, if it was not in session, by the governor of the state. To make sure that the restrictions on the states would not be dead letters, the federal Const.i.tution, laws, and treaties were made the supreme law of the land, to be enforced whenever necessary by a national judiciary and executive against violations on the part of any state authorities.

Provisions for Ratification and Amendment.-When the frame of government had been determined, the powers to be vested in it had been enumerated, and the restrictions upon the states had been written into the bond, there remained three final questions. How shall the Const.i.tution be ratified? What number of states shall be necessary to put it into effect? How shall it be amended in the future?

On the first point, the mandate under which the convention was sitting seemed positive. The Articles of Confederation were still in effect. They provided that amendments could be made only by unanimous adoption in Congress and the approval of all the states. As if to give force to this provision of law, the call for the convention had expressly stated that all alterations and revisions should be reported to Congress for adoption or rejection, Congress itself to transmit the doc.u.ment thereafter to the states for their review.

To have observed the strict letter of the law would have defeated the purposes of the delegates, because Congress and the state legislatures were openly hostile to such drastic changes as had been made. Unanimous ratification, as events proved, would have been impossible. Therefore the delegates decided that the Const.i.tution should be sent to Congress with the recommendation that it, in turn, transmit the doc.u.ment, not to the state legislatures, but to conventions held in the states for the special object of deciding upon ratification. This process was followed. It was their belief that special conventions would be more friendly than the state legislatures.

The convention was equally positive in dealing with the problem of the number of states necessary to establish the new Const.i.tution. Attempts to change the Articles had failed because amendment required the approval of every state and there was always at least one recalcitrant member of the union. The opposition to a new Const.i.tution was undoubtedly formidable. Rhode Island had even refused to take part in framing it, and her hostility was deep and open. So the convention cast aside the provision of the Articles of Confederation which required unanimous approval for any change in the plan of government; it decreed that the new Const.i.tution should go into effect when ratified by nine states.

In providing for future changes in the Const.i.tution itself the convention also thrust aside the old rule of unanimous approval, and decided that an amendment could be made on a two-thirds vote in both houses of Congress and ratification by three-fourths of the states. This change was of profound significance. Every state agreed to be bound in the future by amendments duly adopted even in case it did not approve them itself. America in this way set out upon the high road that led from a league of states to a nation.

The Struggle over Ratification

On September 17, 1787, the Const.i.tution, having been finally drafted in clear and simple language, a model to all makers of fundamental law, was adopted. The convention, after nearly four months of debate in secret session, flung open the doors and presented to the Americans the finished plan for the new government. Then the great debate pa.s.sed to the people.

An Advertis.e.m.e.nt of The Federalist The Opposition.-Storms of criticism at once descended upon the Const.i.tution. "Fraudulent usurpation!" exclaimed Gerry, who had refused to sign it. "A monster" out of the "thick veil of secrecy," declaimed a Pennsylvania newspaper. "An iron-handed despotism will be the result," protested a third. "We, 'the low-born,'" sarcastically wrote a fourth, "will now admit the 'six hundred well-born' immediately to establish this most n.o.ble, most excellent, and truly divine const.i.tution." The President will become a king; Congress will be as tyrannical as Parliament in the old days; the states will be swallowed up; the rights of the people will be trampled upon; the poor man's justice will be lost in the endless delays of the federal courts-such was the strain of the protests against ratification.

Defense of the Const.i.tution.-Moved by the tempest of opposition, Hamilton, Madison, and Jay took up their pens in defense of the Const.i.tution. In a series of newspaper articles they discussed and expounded with eloquence, learning, and dignity every important clause and provision of the proposed plan. These papers, afterwards collected and published in a volume known as The Federalist, form the finest textbook on the Const.i.tution that has ever been printed. It takes its place, moreover, among the wisest and weightiest treatises on government ever written in any language in any time. Other men, not so gifted, were no less earnest in their support of ratification. In private correspondence, editorials, pamphlets, and letters to the newspapers, they urged their countrymen to forget their partisanship and accept a Const.i.tution which, in spite of any defects great or small, was the only guarantee against dissolution and warfare at home and dishonor and weakness abroad.

Celebrating the Ratification The Action of the State Conventions.-Before the end of the year, 1787, three states had ratified the Const.i.tution: Delaware and New Jersey unanimously and Pennsylvania after a short, though savage, contest. Connecticut and Georgia followed early the next year. Then came the battle royal in Ma.s.sachusetts, ending in ratification in February by the narrow margin of 187 votes to 168. In the spring came the news that Maryland and South Carolina were "under the new roof." On June 21, New Hampshire, where the sentiment was at first strong enough to defeat the Const.i.tution, joined the new republic, influenced by the favorable decision in Ma.s.sachusetts. Swift couriers were sent to carry the news to New York and Virginia, where the question of ratification was still undecided. Nine states had accepted it and were united, whether more saw fit to join or not.

Meanwhile, however, Virginia, after a long and searching debate, had given her approval by a narrow margin, leaving New York as the next seat of anxiety. In that state the popular vote for the delegates to the convention had been clearly and heavily against ratification. Events finally demonstrated the futility of resistance, and Hamilton by good judgment and masterly arguments was at last able to marshal a majority of thirty to twenty-seven votes in favor of ratification.

The great contest was over. All the states, except North Carolina and Rhode Island, had ratified. "The sloop Anarchy," wrote an ebullient journalist, "when last heard from was ash.o.r.e on Union rocks."

The First Election.-In the autumn of 1788, elections were held to fill the places in the new government. Public opinion was overwhelmingly in favor of Washington as the first President. Yielding to the importunities of friends, he accepted the post in the spirit of public service. On April 30, 1789, he took the oath of office at Federal Hall in New York City. "Long live George Washington, President of the United States!" cried Chancellor Livingston as soon as the General had kissed the Bible. The cry was caught by the a.s.sembled mult.i.tude and given back. A new experiment in popular government was launched.

References

M. Farrand, The Framing of the Const.i.tution of the United States.

P.L. Ford, Essays on the Const.i.tution of the United States.

The Federalist (in many editions).

G. Hunt, Life of James Madison.

A.C. McLaughlin, The Confederation and the Const.i.tution (American Nation Series).

Questions

1. Account for the failure of the Articles of Confederation.

2. Explain the domestic difficulties of the individual states.

3. Why did efforts at reform by the Congress come to naught?

4. Narrate the events leading up to the const.i.tutional convention.

5. Who were some of the leading men in the convention? What had been their previous training?

6. State the great problems before the convention.

7. In what respects were the planting and commercial states opposed? What compromises were reached?

8. Show how the "check and balance" system is embodied in our form of government.

9. How did the powers conferred upon the federal government help cure the defects of the Articles of Confederation?

10. In what way did the provisions for ratifying and amending the Const.i.tution depart from the old system?

11. What was the nature of the conflict over ratification?