The Penguin Guide to the United States Constitution Part 8

This policy of supplying by opposite and rival interests, the defect of better motives, might be traced through the whole system of human affairs, private as well as public. We see it particularly displayed in all the subordinate distributions of power; where the constant aim is to divide and arrange the several offices in such a manner as that each may be a check on the other; that the private interest of every individual may be a sentinel over the public rights. These inventions of prudence cannot be less requisite in the distribution of the supreme powers of the state.

But it is not possible to give to each department an equal power of self-defence. In republican government, the legislative authority, necessarily, predominates. The remedy for this inconveniency is, to divide the legislature into different branches; and to render them, by different modes of election and different principles of action, as little connected with each other, as the nature of their common functions, and their common dependence on the society, will admit. It may even be necessary to guard against dangerous encroachments by still further precautions. As the weight of the legislative authority requires that it should be thus divided, the weakness of the executive may require, on the other hand, that it should be fortified. An absolute negative on the legislature appears at first view to be the natural defence with which the executive magistrate should be armed. But perhaps it would be neither altogether safe, nor alone sufficient. On ordinary occasions, it might not be exerted with the requisite firmness; and on extraordinary occasions, it might be perfidiously abused. May not this defect of an absolute negative be supplied, by some qualified connection between this weaker department, and the weaker branch of the stronger department, by which the latter may be led to support the const.i.tutional rights of the former, without being too much detached from the rights of its own department? . . .

There are moreover two considerations particularly applicable to the federal system of America, which place that system in a very interesting point of view.

First. In a single republic, all the power surrendered by the people, is submitted to the administration of a single government; and the usurpations are guarded against by a division of the government into distinct and separate departments. In the compound republic of America, the power surrendered by the people, is first divided between two distinct governments, and then the portion allotted to each, subdivided among distinct and separate departments. Hence a double security arises to the rights of the people. The different governments will controul each other; at the same time that each will be controuled by itself.

Second. It is of great importance in a republic, not only to guard the society against the oppression of its rulers; but to guard one part of the society against the injustice of the other part. Different interests necessarily exist in different cla.s.ses of citizens. If a majority be united by a common interest, the rights of the minority will be insecure. There are but two methods of providing against this evil: The one by creating a will in the community independent of the majority, that is, of the society itself; the other by comprehending in the society so many separate descriptions of citizens, as will render an unjust combination of a majority of the whole, very improbable, if not impracticable. The first method prevails in all governments possessing an hereditary or self-appointed authority. This at best is but a precarious security; because a power independent of the society may as well espouse the unjust views of the major, as the rightful interests, of the minor party, and may possibly be turned against both parties. The second method will be exemplified in the federal republic of the United States. Whilst all authority in it will be derived from and dependent on the society, the society itself will be broken into so many parts, interests, and cla.s.ses of citizens, that the rights of individuals or of the minority, will be in little danger from interested combinations of the majority. In a free government, the security for civil rights must be the same as that for religious rights. It consists in the one case in the multiplicity of interests, and in the other in the multiplicity of sects. The degree of security in both cases will depend on the number of interests and sects; and this may be presumed to depend on the extent of country and number of people comprehended under the same government. This view of the subject must particularly recommend a proper federal system to all the sincere and considerate friends of republican government: Since it shews that in exact proportion as the territory of the Union may be formed into more circ.u.mscribed confederacies or states, oppressive combinations of a majority will be facilitated, the best security under the republican forms, for the rights of every cla.s.s of citizens, will be diminished; and consequently, the stability and independence of some member of the government, the only other security, must be proportionately increased. Justice is the end of government. It is the end of civil society. It ever has been, and ever will be pursued, until it be obtained, or until liberty be lost in the pursuit. In a society under the forms of which the stronger faction can readily unite and oppress the weaker, anarchy may as truly be said to reign, as in a state of nature where the weaker individual is not secured against the violence of the stronger: And as in the latter state even the stronger individuals are prompted by the uncertainty of their condition, to submit to a government which may protect the weak as well as themselves: So in the former state, will the more powerful factions or parties be gradually induced by a like motive, to wish for a government which will protect all parties, the weaker as well as the more powerful. . . . In the extended republic of the United States, and among the great variety of interests, parties, and sects which it embraces, a coalition of a majority of the whole society could seldom take place on any other principles than those of justice and the general good; and there being thus less danger to a minor from the will of a major party, there must be less pretext also, to provide for the security of the former, by introducing into the government a will not dependent on the latter; or in other words, a will independent of the society itself. It is no less certain than it is important, notwithstanding the contrary opinions which have been entertained, that the larger the society, provided it lie within a practical sphere, the more duly capable it will be of self-government. And happily for the republican cause, the practicable sphere may be carried to a very great extent, by a judicious modification and mixture of the federal principle.

PUBLIUS.

FEDERALIST NO. 78: ALEXANDER HAMILTON, MAY 28, 1788.

"Federalist No. 78" is Alexander Hamilton's most significant contribution to The Federalist Papers. The principle topic of the essay is the importance of protecting the "weakest of the three departments" of government, the judiciary, from encroachments by the executive and, in particular, the legislative branches. Hamilton's solution to this problem was to create a judicial branch that could operate as independently of influence from the other two branches of government as possible. The best way to do this, he argues, is to appoint federal judges for a term of "good behaviour"-in effect, for life.

In the course of his argument supporting lifetime terms for federal judges, Hamilton states explicitly what many of the Founding Fathers had long believed but had not written into the Const.i.tution: "The interpretation of the laws is the proper and peculiar province of the courts. A const.i.tution is in fact, and must be, regarded by the judges as the fundamental law. It therefore belongs to them to ascertain its meaning as well as the meaning of any particular act proceeding from the legislative body." This a.s.sertion of the right of "judicial review" would not be established as a const.i.tutional precedent until the Supreme Court rendered its decision in Marbury v. Madison in 1803, but it was an important portent of const.i.tutional developments to come.

We proceed now to an examination of the judiciary department of the proposed government.

In unfolding the defects of the existing confederation, the utility and necessity of a federal judicature have been clearly pointed out. It is the less necessary to recapitulate the considerations there urged; as the propriety of the inst.i.tution in the abstract is not disputed: The only questions which have been raised being relative to the manner of const.i.tuting it, and to its extent. To these points therefore our observations shall be confined.

The manner of const.i.tuting it seems to embrace these several objects-1st. The mode of appointing the judges. 2d. The tenure by which they are to hold their places. 3d. The part.i.tion of the judiciary authority between different courts, and their relations to each other. . . .

According to the plan of the convention, all judges who may be appointed by the United States are to hold their offices during good behaviour, which is conformable to the most approved of the state const.i.tutions; and among the rest, to that of this state. . . . The standard of good behaviour for the continuance in office of the judicial magistracy is certainly one of the most valuable of the modern improvements in the practice of government. In a monarchy it is an excellent barrier to the despotism of the prince: In a republic it is a no less excellent barrier to the encroachments and oppressions of the representative body. And it is the best expedient which can be devised in any government, to secure a steady, upright, and impartial administration of the laws.

Whoever attentively considers the different departments of power must perceive, that in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Const.i.tution; because it will be least in a capacity to annoy or injure them. The executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary on the contrary has no influence over either the sword or the purse, no direction either of the strength or of the wealth of the society, and can take no active resolution whatever. It may truly be said to have neither Force nor Will, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.

This simple view of the matter suggests several important consequences. It proves incontestably that the judiciary is beyond comparison the weakest of the three departments of power; that it can never attack with success either of the other two; and that all possible care is requisite to enable it to defend itself against their attacks. It equally proves, that though individual oppression may now and then proceed from the courts of justice, the general liberty of the people can never be endangered from that quarter: . . . And it proves, in the last place, that . . . from the natural feebleness of the judiciary, it is in continual jeopardy of being overpowered, awed, or influenced by its co-ordinate branches; and that as nothing can contribute so much to its firmness and independence, as permanency in office, this quality may therefore be justly regarded as an indispensable ingredient in its const.i.tution; and in a great measure as the citadel of the public justice and the public security. . . .

Some perplexity respecting the rights of the courts to p.r.o.nounce legislative acts void, because contrary to the Const.i.tution, has arisen from an imagination that the doctrine would imply a superiority of the judiciary to the legislative power. It is urged that the authority which can declare the acts of another void, must necessarily be superior to the one whose acts may be declared void. As this doctrine is of great importance in all the American const.i.tutions, a brief discussion of the ground on which it rests cannot be unacceptable.

There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act therefore contrary to the Const.i.tution, can be valid. To deny this would be to affirm that the deputy is greater than his princ.i.p.al; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers may do not only what their powers do not authorise, but what they forbid.

If it be said that the legislative body are themselves the const.i.tutional judges of their own powers, and that the construction they put upon them is conclusive upon the other departments, it may be answered, that this cannot be the natural presumption, where it is not to be collected from any particular provisions in the Const.i.tution. It is not otherwise to be supposed that the Const.i.tution could intend to enable the representatives of the people to subst.i.tute their will to that of their const.i.tuents. It is far more rational to suppose that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits a.s.signed to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A const.i.tution is in fact, and must be, regarded by the judges as a fundamental law. It therefore belongs to them to ascertain its meaning as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought of course to be preferred; or in other words, the Const.i.tution ought to be preferred to the statute, the intention of the people to the intention of their agents.

Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature declared in its statutes, stands in opposition to that of the people declared in the Const.i.tution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental. . . .

If then the courts of justice are to be considered the bulwarks of a limited const.i.tution against legislative encroachments, this consideration will afford a strong argument for the permanent tenure of judicial offices, since nothing will contribute to much as this to that independent spirit in the judges, which must be essential to the faithful performance of so arduous a duty. . . .

That inflexible and uniform adherence to the rights of the Const.i.tution and of individuals, which we perceive to be indispensable in the courts of justice, can certainly not be expected from judges who hold their offices by a temporary commission. Periodical appointments, however regulated, or by whomsoever made, would in some way or other be fatal to their necessary independence. If the power of making them was committed either to the executive or legislature, there would be danger of an improper complaisance to the branch which possessed it; if to both, there would be an unwillingness to hazard the displeasure of either; if to the people, or to persons chosen by them for the special purpose, there would be too great a disposition to consult popularity, to justify a reliance that nothing would be consulted but the Const.i.tution and the laws.

There is yet a further and a weighty reason for the permanency of the judicial offices; which is deducible from the nature of the qualifications they require. It has been frequently remarked with great propriety, that a voluminous code of laws is one of the inconveniences necessarily connected with the advantages of a free government. To avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them; and it will readily be conceived from the variety of controversies which grow out of the folly and wickedness of mankind, that the records of those precedents must unavoidably swell to a very considerable bulk, and must demand long and laborious study to acquire a competent knowledge of them. Hence it is that there can be but few men in the society, who will have sufficient skill in the laws to qualify them for the stations of judges. And making the proper deductions for the ordinary depravity of human nature, the number must be still smaller of those who unite the requisite integrity with the requisite knowledge. These considerations apprise us, that the government can have no great option between fit characters; and that a temporary duration in office, which would naturally discourage such characters from quitting a lucrative line of practice to accept a seat on the bench, would have a tendency to throw the administration of justice into hands less able, and less well qualified to conduct it with utility and dignity. In the present circ.u.mstances of this country, and in those in which it is likely to be for a long time to come, the disadvantages on this score would be greater than they may at first sight appear; but it must be confessed that they are far inferior to those which present themselves under the other aspects of the subject.

Upon the whole there can be no room to doubt that the convention acted wisely in copying from the models of those const.i.tutions which have established good behaviour as the tenure of their judicial offices in point of duration; and that so far from being blamable on this account, their plan would have been inexcusably defective if it had wanted this important feature of good government. The experience of Great Britain affords an ill.u.s.trious comment on the excellence of the inst.i.tution.

PUBLIUS.

CHAPTER ONE.

THE REVOLUTIONARY ORIGINS OF THE AMERICAN CONSt.i.tUTION.

AMERICA'S CONSt.i.tUTIONAL HISTORY did not begin in 1787 with those Founding Fathers who gathered in Philadelphia, in the building we now call Independence Hall. Indeed, it did not begin with America's Declaration of Independence, adopted in that same building on July 4, 1776. Rather, it developed gradually over the nearly two hundred years of British rule preceding America's bold leap toward independence.

America's legal and const.i.tutional traditions were influenced profoundly by English common law and by a deep reverence for what British subjects on both sides of the Atlantic called the "English const.i.tution." It did not seem to matter that the English const.i.tution did not actually exist in written form-it was and is a jumble of parliamentary statute, legal precedent, and simple custom. Yet English colonizers and American colonists alike held it in uncommonly high regard.

It was in large measure the disagreements between Americans and Englishmen over how to interpret the English const.i.tution that precipitated the conflict that would result in the world's first popular revolution. The origins of the conflict lay in two things that have caused trouble since the beginning of time: money and taxes. In 1763 the British government, following a successful but costly war against France (as well as against some of France's Indian allies in North America), found itself in possession of vast amounts of new territory west of the Appalachian Mountains and in Canada. That was the good news. The bad news was that the costs of the war, and the likely continuing costs of protecting the newly won gains, had left the king and his government deeply in debt, with the prospect of even greater debt on the horizon. Since much of that debt had been incurred in a war fought in America and since the spoils of that war-vast lands stretching west to the Mississippi River and north into Canada-would ultimately be sources of opportunity for future generations of American colonists, from the British point of view it seemed only reasonable that Americans pay their fair share of the costs.

Of course, the Americans saw things differently. They too had sacrificed. They had provided supplies and, more important, militiamen who had fought alongside the British regular army during that seven-year-long war. Indeed, a young colonel in the Virginia militia, George Washington, had acquired an international reputation for his bravery as commander of the Virginia regiment in the French and Indian War. If there was ever a time in which Americans were in a mood to be left alone to enjoy the relative peace of a world in which the threat of French intrigue and Indian warfare on their frontiers was significantly diminished, that time came at the conclusion of the war, signaled by the signing of the Treaty of Paris in February 1763. At precisely the moment when the British government was looking to America for an unprecedented contribution to the British treasury, for "the good of the empire," Americans, weary of sacrifice and less dependent on British military might for the security of their frontiers than ever before, were in an entirely different frame of mind.

Beginning in 1764 and 1765 the British parliament began levying a new series of taxes on the colonies aimed at raising revenue to pay the expenses of administering their empire. The British government also announced its intention to tighten up enforcement of existing customs laws, which, because of lax enforcement over many decades, had been widely evaded by American merchants. In fact, the taxes imposed on the colonies-a tax on mola.s.ses imported from the West Indies into America and a stamp tax, similar to taxes already levied back in England-did not present a major economic burden to the Americans. But the means by which the taxes were imposed-enacted by a distant Parliament without the Americans' consent-seemed to the Americans to violate a principle of the English const.i.tution that they valued dearly: the principle of "no taxation without representation."

The American protests against the taxes began in the colonies' provincial a.s.semblies, which sent humble pet.i.tions to Parliament asking for a repeal of what they believed to be unjust and unconst.i.tutional acts. But protest was not confined to humble pet.i.tions. Gradually, ordinary folks in America's cities and towns joined the protests, and as American resistance a.s.sumed this popular dimension, the forms of protest-street marches and demonstrations; economic boycotts of British goods; and, at times, violence aimed at British officials charged with enforcing the acts-became more direct and more threatening to the authority of the Crown. What began as a const.i.tutional debate between American and English political leaders was becoming something more explosive-an intensely personal conflict between British officials and ordinary Americans played out, not in legislatures or courtrooms, but in the streets of Boston, New York, and Philadelphia.

Resistance bred reaction, and the British responded by sending more troops to keep order in their restive colonies. Parliament was goaded into pa.s.sing additional legislation-not simply taxes but other measures, such as those requiring Americans to provide lodging for British troops in their homes-further inflaming public opinion. The turning point in the escalating conflict between the Crown and colonies came on a cold, moonlit night on December 16, 1773. Earlier in the year, Parliament had pa.s.sed the Tea Act, a law not only intended to rea.s.sert England's right to tax the colonies but which also gave the East India Company-the company that enjoyed a monopoly on all English trade in India-a similar monopoly on all tea imported into America. Once again the amount of the tax involved was relatively trivial, but Americans now rose up in protest, not only against being taxed without their consent, but also against the threat of monopoly. If Parliament could give one company a monopoly on the importation of tea, what was to prevent it from doing the same with other commodities, leaving American merchants, and all those who worked for them, out in the cold?

So on that cold night in December, three small groups of men poorly disguised as Mohawk Indians-but who were in fact common seamen and urban laborers acting under the direction of the political activist Samuel Adams-dumped ninety thousand pounds of East India Company tea into Boston Harbor. John Adams, a witness to the event, wrote in his diary that night that "this destruction of the tea is so bold, so daring, so firm, intrepid and inflexible, and it must have so important Consequences, and so lasting, that I cannot but consider it an Epocha in History." Indeed, the effects of the Boston mob action would shake politicians in England to their very core, setting in motion a chain of events that would change the world.

SOME IN AMERICA REGRETTED THE PROVOCATIVE MANNER in which the Bostonians had acted, but when the British parliament responded with a harsh set of measures aimed at punishing the colony of Ma.s.sachusetts, public opinion began to change. The Coercive Acts, as they came to be called, not only closed the port of Boston, but also strengthened the power of the royal governor while dissolving the provincial legislature and restricting the actions of town meetings. This aggressive display of parliamentary power posed an obvious threat not merely to Ma.s.sachusetts, but to the liberties of all Americans. The const.i.tutional battlefield had now expanded: the issues now confronting Americans went beyond taxation to the wider question of whether Parliament had any political authority over the American colonies. In June of 1774, all thirteen of America's provincial legislatures, accustomed to going their separate ways, agreed to send delegates to Philadelphia to meet in a Continental Congress in order to work out a common response to this new and dangerous provocation.

When the delegates gathered in a carpenters' guild hall in Philadelphia on September 5, 1774, there was general agreement among them that some response to the Coercive Acts was necessary but little consensus on what that response should be. For a few-particularly those like John and Samuel Adams from fractious Boston and the Virginian Patrick Henry-the idea of independence was beginning to seem like a possible, even desirable, outcome. But most of the delegates to the Continental Congress retained a deep affection for their monarch and for the English const.i.tution. Surely, there must be some means of resolving the conflict short of revolution. The magnitude of the change being proposed by the advocates of independence-a revolution in which Americans would be transformed from loyal subjects of a beloved British king into independent citizens in a new republic-was almost too much to comprehend. Yet gradually, haltingly, America's political leaders, and the const.i.tuents they represented, would set themselves on a course to independence-to a rejection of their ident.i.ty as British subjects and a declaration of their desire to be citizens of the "united states."

The Continental Congress met in Philadelphia's Carpenters' Hall between September 5 and October 26, 1774, and after a six-month recess moved to the a.s.sembly Room of the Pennsylvania State House, the building that would later be called Independence Hall. They met continuously from May 10, 1775, until the adoption of the Declaration of Independence on July 4, 1776. From May 1775 forward, the const.i.tutional battle was waged on two fronts: between political leaders in America and their counterparts in London, and among the American delegates to the Continental Congress, who continued to disagree about whether independence was the course for the colonies to take. The latter debate was profoundly influenced by the steadily escalating conflict between Great Britain and the colonies outside the halls of Congress and, just as importantly, by the climate of opinion back home in the delegates' respective colonies.

The battles of Lexington and Concord, occurring less than a month before the Continental Congress reconvened in May 1775, provided one flash point, transforming the conflict between Crown and colonies from a political dispute to a military confrontation. But even after the opposing patriot and British armies had taken up arms, most Americans hoped for a solution that would not force them to abandon their loyalties as British subjects. As the skirmishes at Lexington and Concord escalated into full-scale war-Bunker Hill in June 1775, military clashes spreading to a new front in western New York and Quebec in the fall of 1775, Virginia royal governor Lord Dunmore's promise of freedom to slaves who deserted their masters and fought on the British side to put down incipient rebellion in that colony-it became more and more difficult to imagine a path toward reconciliation.

Still the delegates sought that reconciliation. John d.i.c.kinson, a delegate to the Continental Congress from Pennsylvania, had already made a name for himself in the preceding years as an articulate spokesman for the const.i.tutional rights of Americans. But d.i.c.kinson, trained as a lawyer in London, also had a deep reverence for the English const.i.tution. If only the king and Parliament could be persuaded to return to the true principles of that const.i.tution and to restore their liberties! In August 1775 d.i.c.kinson persuaded the Congress to draft the Olive Branch Pet.i.tion, which firmly reiterated the Americans' const.i.tutional objections to Parliament's attempts to tax and legislate for the colonies but at the same time expressed affection for and allegiance to the British Empire. Notably, the pet.i.tion was sent, not to Parliament, but to King George III, for even moderate Americans like d.i.c.kinson had reached the point of denying all parliamentary authority over the colonies.

WHATEVER HOPES OF ENLISTING THE AID OF their sovereign that men like d.i.c.kinson may have entertained, they were coldly dashed by late October 1775, when the Congress received news that the king had declared the colonies in a state of rebellion even before receiving the Olive Branch Pet.i.tion. When the pet.i.tion finally reached the king, he refused to look at it. To make matters worse, in his October speech at the opening of Parliament (which the Continental Congress only learned about in early January 1776), George III denounced the Congress as "promoters of [a] desperate conspiracy." Its pet.i.tions, he charged, were only a ruse designed to lull the British while the delegates were preparing for a "general revolt," with the ultimate goal being the establishment of "an independent empire." And although the news would not reach America until the end of February, Parliament, at the king's urging, had pa.s.sed the Prohibitory Act, which effectively declared war on American commerce on the high seas. With the adamant refusal of the king to help turn the tide of events back toward reconciliation, the next move would be up to the Americans.

At nearly the same time that George III was making p.r.o.nouncements that dimmed the hopes of those in Congress who yearned for some sort of honorable path toward reconciliation, a scruffy, recent English immigrant to Pennsylvania, one Thomas Paine, wrote a pamphlet, Common Sense, that would bring about a revolution in public opinion. Paine had nothing but contempt for the "boasted const.i.tution of England," which was, he derisively commented, "n.o.ble for the dark and slavish times in which it was erected," but wholly inadequate for a free people in a new world. And the greatest absurdity of that const.i.tution, he exclaimed, was the very idea of a hereditary monarch. His attack on the monarchy in general, and on George III in particular, was devastating and, as it turned out, unanswerable. John d.i.c.kinson, whose devotion to the English const.i.tution formed the core of his desire to stay within the British Empire, was rendered mute in the face of Paine's a.s.sault. And General George Washington, now leading the Continental army's troops in battle, was so moved by Paine's pamphlet that he had his officers read it to his men in the field to inspire them to fight for the common cause.

The period between the publication of Common Sense in mid-January and the decision to declare independence in early July was a chaotic one. At this stage the decision on independence became not one but thirteen separate decisions, as political leaders and ordinary citizens in each of the colonies read and then debated the argument in Common Sense. In Congress, those continuing to hope for reconciliation found their numbers declining and their arguments less persuasive. Nevertheless, even those delegates most committed to independence knew that the drama needed to be played out in each of the individual colonies, for the authority of the Congress was ultimately dependent on public opinion beyond the walls of the Pennsylvania State House.

By April of 1776, most, but by no means a decisive majority, of the colonies appeared ready to declare independence. A few-Pennsylvania, New York, Maryland, and New Jersey-had, with varying degrees of emphasis, instructed their delegates to the Congress to oppose any resolution for independence. But as the possibilities for reconciliation with Great Britain dwindled (the British government had indicated that it might send peace commissioners to America to attempt to negotiate a settlement, but the commissioners never arrived), those colonies that had argued for caution were left with few plausible alternatives.

On June 7, Richard Henry Lee of Virginia introduced into the Congress a resolution sent to him by a specially called convention in his home colony. The resolution proposed: * that these United Colonies are, and of right ought to be free and independent states.

* that it is expedient forthwith to take the most effectual measures for forming foreign alliances.

* that a plan of confederation be prepared and transmitted to the respective Colonies for their consideration and approbation.

Agreement on these three items-independence; foreign a.s.sistance; and, perhaps most important, union-const.i.tuted the essential preconditions for a formal declaration of independence.

Even with those resolutions before the Congress, the delegates from Pennsylvania, New York, New Jersey, and Maryland remained opposed, and others seemed to be on the fence. As a consequence, the Congress postponed debate on the resolutions from Virginia until July 1. But on that day, as debate on the resolutions began, nearly everyone gathered in the a.s.sembly Room of the Pennsylvania State House knew that they had reached a moment of truth. During the first go-around, on July 1, Pennsylvania and South Carolina opposed the resolution for independence, with Delaware divided. And New York's delegates had to sit on their hands, for they had been given explicit instructions by their legislature not to vote on any measure aimed at independence.

Finally, on July 2 the votes fell into place. An additional Delaware delegate, Caesar Rodney, arrived in Philadelphia that day, voting in favor of independence and breaking the deadlock in that delegation. Edward Rutledge of South Carolina, who had opposed independence, deferred to his older, more politically powerful brother, John Rutledge, and agreed to support the resolutions. The situation with the Pennsylvania delegation was the most interesting. Although prominent Pennsylvania delegates like John d.i.c.kinson and Robert Morris continued to oppose independence, they realized that their views were out of step with those of their const.i.tuents. Recognizing that their duty to their const.i.tuents was more important than their personal feelings, they voluntarily absented themselves from the voting on Richard Henry Lee's resolution for independence on July 2. The effect of their absence was to tip the balance within the Pennsylvania delegation toward independence. The New Yorkers still sat on their hands, waiting for their legislature to have a change of heart. But at least they had not voted no, allowing John Adams to crow that the "resolution was pa.s.sed without one dissenting colony." The following day he wrote his wife, Abigail, in exultation: "the second day of July, 1776 will be the most memorable epocha in the history of America. I am apt to believe that it will be celebrated by succeeding generations as the great anniversary Festival." He missed the mark by two days.

The man most closely a.s.sociated with American independence has turned out not to be its most indefatigable advocate, John Adams, but rather a relative newcomer to the political scene: the soft-spoken, lanky Virginian Thomas Jefferson. On June 11, three weeks before the formal vote on independence, the Continental Congress had appointed a committee composed of Jefferson, Adams, Benjamin Franklin, Roger Sherman, and Robert Livingston to prepare a declaration of independence, in case such a declaration should be necessary.

It was of course Jefferson who took on the task of completing a first draft of the Declaration of Independence. But if we are to believe the testimony of John Adams, that was not a foregone conclusion. According to Adams, when the committee first met it decided that Jefferson would be given that task, but Jefferson proposed instead that Adams do it. Then followed an exchange in which each man tried to persuade the other to write the draft. Adams argued that Jefferson should do it because he was a Virginian, "and a Virginian ought to appear at the head of this business," a reference to the fact that New Englanders like Adams were seen by many as the troublemakers who had gotten the colonies into the conflict with England in the first place, and that it would look better if the more conservative Virginians took the lead in the movement for independence. Adams went on to say that "I am obnoxious, suspected, and unpopular. You are very much otherwise." That, unfortunately, was probably true, for Adams's curmudgeonly nature, together with his often abrasive insistence on independence even before some of the other colonies were ready for it, had earned him at least a few enemies. Adams's third reason was that he believed Jefferson could "write ten times better than I can." It is hard to imagine Adams admitting that anyone was a better writer, and indeed Jefferson-again, long after the fact-had a rather different recollection. According to Jefferson, the decision about who was to write the draft of the Declaration was straightforward: the members of the committee "unanimously pressed on myself alone to undertake the draught [and] I consented." Jefferson went on to recall that at that point he retired to his rented rooms at Seventh and Market Streets in Philadelphia and wrote a draft, and before sending it formally to the committee for their comments, he informally asked both Benjamin Franklin and John Adams to suggest corrections. According to Jefferson, "their alterations were two or three only, and merely verbal." At which point, Jefferson recalled, he wrote out a new copy of the doc.u.ment and reported it to the committee, which, without making alterations, sent it to the full Congress for its consideration.

In fact, the rough draft of Jefferson's Declaration that was submitted to the Congress had a total of twenty-six alterations-two in Adams's handwriting, five in Franklin's, and sixteen in Jefferson's. And three additional paragraphs were added as well. It appears likely that many of the changes were the result of further conversations that Jefferson had with Adams and Franklin, both of whom made substantial contributions to the revisions of Jefferson's original draft. When comparing the two drafts, it is sometimes difficult to tell whether the revisions were made by Jefferson or made by others but recorded in Jefferson's handwriting, but there is no doubt that the revisions did make the doc.u.ment both more elegant and more forceful. To give just a few examples: 1. The initial draft stated: "We hold these truths to be self-evident: that all men are created equal & independent; that from that equal creation they derive rights inherent & inalienable, among which are the preservation of life, & liberty, & the pursuit of happiness."

The final draft: "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness."

2. The concluding portion of the preamble initially read: "The history of his present majesty is a history of unremitting injuries and usurpations, among which no one fact stands single or solitary to contradict the uniform tenor of the rest, all of which have in direct object the establishment of an absolute tyranny over these states. [T]o prove this, let facts be submitted to a candid world, for the truth of which we pledge a faith yet unsullied by falsehood."

This was shortened to read: "The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute tyranny over these States. To prove this, let Facts be submitted to a candid world."

Both of these sets of changes made the doc.u.ment both more concise and elegant, and by doing so, more powerful.

The list of grievances that followed was anything but a fair-minded and evenhanded a.s.sessment of the conflict between Great Britain and America. Rather, it was aimed at persuading those Americans who remained undecided to support the patriot cause and, equally important, at signaling to potential European allies, particularly France, that America was serious about its intent to break with England-an action that, if successful, would significantly weaken the British Empire in North America.

Although the Declaration was adopted on July 4, the only two members of the Continental Congress who appear to have signed it on that day were John Hanc.o.c.k, the Congress's president, and Charles Thomson, the Congress's secretary. The final wording of the Declaration was apparently engrossed on parchment sometime between July 19 and August 2. On the latter date, some but not all members of the Congress signed it, with those members who were absent on August 2 trickling in to sign it in subsequent days. Although some of the reasons for the delay were purely logistical-the members of the Congress first needed to get the doc.u.ment properly engrossed on parchment, and then they had to round up those delegates who were prepared to sign it-another was more substantial. The Declaration begins with the words: "The unanimous Declaration of the thirteen united States of America." The New York legislature did not give its delegates permission to support independence until July 9, and if the Declaration was truly to be a unanimous one, the members of the Congress had to be sure that New York was on board.

Whatever the delay in signing the doc.u.ment, there was little delay in proclaiming it to a vitally interested public. When John Hanc.o.c.k transmitted America's Declaration to the states on July 6, he observed: "The important consequences . . . from this Declaration of Independence, considered as the Ground and Foundation of a future Government will naturally suggest the Propriety of proclaiming it in such a Manner, that the People may be universally informed of it." In fact, someone had gotten hold of a copy of the Declaration a day earlier, and on July 5 a group of citizens gathered in the yard of the Independence Hall and listened as America's first founding doc.u.ment was read aloud. Three days later there was another, "official" reading of the Declaration in that same spot, and within a few days similar readings occurred in the princ.i.p.al public gathering places all over America. General George Washington, already fully engaged in battle against the British army, ordered his officers in New York City to read copies of the Declaration to their troops, and with their British adversaries "constantly in view," the troops were "formed in hollow squares on their respective parades," and the Declaration was read "with an audible voice." Washington hoped that these public-even daring-readings would "serve as a free incentive to every officer, and soldier, to act with Fidelity and Courage . . . knowing that now the peace and safety of his Country depends (under G.o.d) solely on the success of our arms."

America's political leaders in the Continental Congress, and American soldiers in the field, had taken the bold, fateful step of declaring their independence from Great Britain. But the struggle to achieve independence would sorely test the will of all Americans.

CHAPTER TWO.

AMERICA STRUGGLES TO ACHIEVE INDEPENDENCE, LIBERTY, AND UNION.

GOVERNMENT UNDER THE ARTICLES OF CONFEDERATION.

JEFFERSON'S DECLARATION WAS a bold, inspiring piece of prose. But what did it really mean? By what means would Americans achieve the independence they had proclaimed? And, equally important, how would they put into practice the lofty ideals that had served as their rationale for independence? Jefferson and his fellow Americans had set for themselves the formidable task not only of winning independence by force of arms against the world's greatest military power but also of remaining true to the principles that had motivated their epochal decision to seek independence. The most formidable challenge-one that would persist for many decades after independence was achieved-was that of bringing the reality of social, economic, and political arrangements within the independent American states into harmony with the promise contained in Jefferson's preamble: "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness." Those hopeful phrases would prove a powerful inspiration for Americans for many generations to come, but the precise meaning of those words remains a subject of immense dispute among Americans right up to the present day.

Americans had made substantial progress toward meeting the promise of equality and of the "pursuit of Happiness" during the years since the founding of their colonies. In 1630 John Winthrop, the governor of the newly created Ma.s.sachusetts Bay colony, lectured the first settlers of that colony, as they made their way to America aboard the ship Arbella, that "G.o.d Almighty in his most holy and wise Providence hath soe disposed of the condition of mankind as in all times some must be rich, some poore, some high and eminent in power and dignitie, others mean and in subjection." In Winthrop's view, inequality was not merely the natural state of mankind but, indeed, a divinely ordained one. Much would happen in America between 1630 and 1776 to undermine that hierarchical formula for the proper ordering of society. The combined influence of European Enlightenment ideas and the economic opportunity offered by the bountiful American landscape would bring to England's American subjects a greater degree of prosperity, liberty, and personal independence than any of the original colonizers of America ever could have imagined. Yet in a whole range of categories-the inst.i.tution of African slavery; the relationship between Europeans and Indians in America; the systematic legal subordination of women; and indeed the significant social and legal distinctions existing even among free white men-Americans in 1776 had only barely begun to recognize the logical imperatives of Jefferson's lofty phrases.

Thomas Paine, in urging Americans to make the fateful commitment to independence, had held out the promise that: We have it in our power to begin the world over again. A situation similar to the present has not happened since the days of Noah until now. The birthday of a new world is at hand, and a race of men, perhaps as numerous as all Europe contains, are to receive their portion of freedom from the events of a few months.

"To begin the world over again," with new forms of government and habits of freedom that would extend the principles of liberty across all of America-what a remarkable opportunity! And as the former British colonies began to create governments as independent states, they took a few tentative steps in that direction. Perhaps the most immediate, and revolutionary, change occurred in the way in which Americans conceived themselves. John Adams, observing the events surrounding independence, remarked: Is not the change we have seen astonishing? Would any Man, two years ago, have believed it possible to accomplish such an Alteration in the Prejudices, Pa.s.sions, Sentiments of these thirteen little States to make every one of them completely republican . . . ? Idolatry to Monarchs, and servility to Aristocratical Pride was never so totally eradicated from so Many Minds in so short a time.

In what seemed like a heartbeat, Americans cast aside their only previous source of common ident.i.ty-as subjects of an English king-and embraced a new ident.i.ty as "citizens." As a South Carolina physician, David Ramsay, a.n.a.lyzed it, the change "from subjects to citizens" was immense: "Subjects look up to a master, but citizens are so far equal, that none have hereditary rights superior to others. Each citizen of a free state contains, within himself, by nature and the const.i.tution, as much of the common sovereignty as another."

"By nature and the const.i.tution"-but what was a const.i.tution? The other vitally important thing that Americans came to recognize in the aftermath of their struggle with the English king and parliament was that the English const.i.tution-an unwritten hodgepodge of statutory law, legal precedent, and custom-was not an adequate safeguard of a people's liberties. As the newly independent American states began to create their own governments, they came to realize that written const.i.tutions, explicit both in the powers they delegated to the government and the fundamental rights that all citizens were to enjoy, were the only secure means of protecting liberty and promoting the public good.

As they crafted their revolutionary state const.i.tutions, America's political leaders, most of them born to positions of privilege and carrying within them a residual affection for the ways of the traditional order, made some forward strides in recognizing the promise contained in Paine's optimistic call to "begin the world over again." Most states included in their new const.i.tutions bills of rights specifically spelling out those "unalienable Rights" to which Jefferson had referred in the Declaration of Independence. Some states pa.s.sed laws making it easier for free white males to vote. Most states, however, retained at least some form of property qualification for voting. With the threat of monarchical tyranny still fresh in their minds, most state const.i.tutions moved to weaken the executive branch and to strengthen the lower houses of a.s.sembly, the one branch of government whose authority derived most directly from the people. With the expansion of the powers of the state legislatures, most states increased the number of representatives serving in those legislatures. And the characteristics of those serving in the legislatures began to change as well; although public service in high office continued for the most part to be the preserve of the wealthy and wellborn, it became more common for men of moderate wealth and social status to be elected to public office as well.

America did not, however, become an egalitarian society overnight. The inst.i.tution of chattel slavery continued to be entrenched in the independent southern states. Women, free blacks, and white males who did not own property continued to face legal impediments to full citizenship. And the combination of ethnic hostility and hunger for western lands caused Euro-Americans to continue their warfare against American Indian cultures. In all of these senses, the American Revolution fell short of the promise of equality contained in the Declaration of Independence. The American Revolution was, at least by the terms of the challenge that Thomas Paine had issued in Common Sense, an unfinished one.

America has struggled to fulfill the commitments to democracy, equality, and liberty made in the Declaration of Independence for all its history, but the struggle for independence presented another challenge as well: how should Americans proceed in organizing a union among the American states? In answering that essential question, the Americans faced a troublesome dilemma. On the one hand, one of the central causes of the American Revolution was the justifiable fear of an overly centralized government imposing its will from afar. Certainly among the logical conclusions to be drawn from the struggles against British rule leading up to independence were that it was necessary to keep government small; to keep it weak; and, most importantly, to locate that government physically close to the people, so those exercising political power could be closely watched. Yet the imperatives of fighting and winning a war against one of the world's most formidable military powers demanded that the thirteen colonies, each of which had in the past enjoyed closer ties and more cordial relations with the imperial government in London than they had with one another, called for an energetic government with the power to compel the states to cooperate in the common cause. It was one thing to declare independence; it was quite another to secure it. The success of the military aspect of the Revolution required the mobilization of an army drawn from all the colonies; the battles of that Revolution crossed state boundaries; and, most important, the financing of the war required a degree of sacrifice among Americans, in the name not of any individual state but of the "united States," far greater than anything the British had ever demanded of them. How would the former British colonies in America, unused to any form of continental union and indeed often ignorant and suspicious of one another, reconcile their desires for local autonomy with the demands of their drastically changed circ.u.mstances?

America's patriot leaders knew that some form of central government was necessary if they were to achieve their independence. Indeed, the resolution proposing independence first introduced into the Second Continental Congress by Richard Henry Lee on June 7, 1776, explicitly presented the notion of an intercolonial union as a necessary accompaniment to independence. But what form would that union take?

The general outlines of a plan of union began to be considered as early as June 11, 1776, before the Declaration of Independence had even been adopted. At that time the Continental Congress appointed a committee, chaired by John d.i.c.kinson of Pennsylvania, to draft a "plan of confederation." d.i.c.kinson's initial draft of that plan was a bold one. It acknowledged that the newly created states should have control over their "present Laws, Customs, Rights, Privileges, and peculiar Jurisdictions," but it then added the important proviso that the states' law-making powers "shall not interfere with the Articles of this Confederation." Equally important, d.i.c.kinson's draft gave to the proposed confederation's government the exclusive power of "Settling all Disputes and Differences" between or among the former colonies. And, in what would prove to be its most contentious feature, the draft also gave the confederation's Congress the power to make all decisions relating to the disposition of any western lands secured during the Revolution.

Debate on d.i.c.kinson's draft of the Articles of Confederation unfolded sporadically in the Continental Congress between July 1776 and October 1777. Many of the powers that d.i.c.kinson proposed to give to the central government were stripped away by delegates fearful that their states were giving up too much of their own power. The resulting Articles of Confederation and Perpetual Union was not really a proper const.i.tution but, rather, a peace treaty among the thirteen separate states. It amounted to little more than a "league of friendship," a form of alliance in which "each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress a.s.sembled." Although it gave the proposed government enormous responsibility-to provide for the states' "common defence, the security of their liberties and their mutual and general welfare"-it denied that government most of the powers necessary to carry out those responsibilities. The Confederation government lacked the power to tax; it could only "request" voluntary contributions of money from the independent states in order to support the war effort. It lacked the power to regulate commerce among the states-an omission that sometimes caused the states to behave more like quarreling nations than members of a single nation. The Articles of Confederation also failed to provide for a chief executive capable of giving energy and focus to the new government. The representatives in the only functioning branch of the government, the Continental Congress, took their orders from their state legislatures, with one of the consequences being that apathy within the Congress was so great that it would sometimes go for weeks, even months, without meeting.

The proposed Articles of Confederation were submitted to the individual state legislatures for their approval in November 1777; it took another three and a half years, until March 1781, before the proposal received the necessary unanimous approval from all thirteen states-yet another indication of the inclination of the states to jealously guard their sovereignty and to zealously protect their provincial interests, often at the expense of the good of the aspiring nation as a whole.

In the meantime, General George Washington, commander in chief of the Continental army, as well as the civilian leaders in the Continental Congress, were left to fight a war and attempt to hold an informal union of the states together without an officially sanctioned frame of government. The task of fighting and winning a war against Great Britain would have been daunting in any circ.u.mstance, but armed with the power only to "request" contributions of men, materiel, and money from the individual states, General Washington's job was made even more difficult. The war effort during those early years was as successful as it was in part because of Washington's leadership, but also-and equally important-because of the bravery and self-sacrifice of those among his men who, even when the terms of their enlistments were up, stayed to fight on. It benefited as well from the lack of decisiveness of the British army-an army hampered both by a long line of supply, stretching across the Atlantic Ocean, and a hesitant ministry back at home, which on the one hand wished to put down the colonial revolt but on the other was reluctant to make the sort of full-fledged military and naval commitment that would have brought the rebellious colonies to heel.

America's commitment to liberty and independence was accompanied by a surge of utopian idealism in 1776, with the state governments enthusiastically pledging to contribute to the common cause. But as the optimism of 1776 confronted the reality of a b.l.o.o.d.y and protracted war, officials in the Continental government found it increasingly difficult to persuade the states to live up to their obligations.

America's eventual victory over the British, who surrendered at Yorktown, Virginia, in October 1781, seemed nearly miraculous; it owed as much to timely French military aid and English indecision as to America's military prowess. And even after victory had been achieved and the American union under the Articles of Confederation received official sanction from all thirteen states, the task of holding that fragile union of states together proved formidable. It was a task made more difficult still by the fact that the new Continental government had acc.u.mulated a substantial debt both to private individuals and foreign nations in the course of the Revolutionary War. Once the war was over and peace had returned, the state governments were even less interested in contributing their fair share to help the Continental government meet its obligations. By 1785 and 1786, with France and Holland clamoring for repayment of the monies owed them, the financial condition of the young American republic seemed even more perilous.

Nor was the weakness of the central government the only problem. Many of the men who made the journey to Philadelphia in 1787 also believed that the revolutionary state const.i.tutions were seriously defective. Those state const.i.tutions were n.o.ble experiments; indeed they were the world's first written const.i.tutions. But they seemed to many to have given the popularly elected legislatures of the states excessive power at the expense of the executive branch of government. Many of the members of those state legislatures had pursued policies which, though popular in the eyes of the people who elected them, served to undermine the financial stability of the young republic and, in a few cases, the public order as well.

Fears about the weakness and irresponsibility of the state governments were given frightening expression when, in the late fall of 1786, a discontented group of western Ma.s.sachusetts farmers, including one Daniel Shays-after whom the uprising came to be named-took up arms in rebellion against the policies of the Ma.s.sachusetts state government. Although Shays' Rebellion was quickly put down, men like Virginia's James Madison and George Washington began to worry that the very fabric of government and society was beginning to tear, and as they watched a somnolent Continental Congress that seemed powerless to accomplish much of anything, that worry turned to despair. General Washington, upon receiving a letter from his friend and neighbor Henry Lee asking him to use his "influence" to set things in the country right, exploded in frustration: "You talk, my good Sir, of employing influence. . . . Influence is no government. . . . Let the reins of government be braced and then held with a steady hand, and every violation of the Const.i.tution be reprehended: if defective, let it be amended, but not suffered to be trampled upon whilst it has an existence."

Most Americans at that time were too preoccupied with their own lives to worry either about the weaknesses of the Continental government or about an unsuccessful uprising of farmers in Ma.s.sachusetts; but for those who worried about the fate of America, not as a loose collection of states but rather as a single nation, those developments seemed profoundly troubling. In 1776 most Americans believed that the greatest threat to liberty was to be found in the overriding power of a distant, centralized government. But the men who provided the energy and intellect behind the movement for a new const.i.tution-their hopes and fears shaped by the challenges and frustrations of fighting a long, costly war and of securing peace and public order at home-had come to believe that the lack of "energy" in the Continental government posed an equally formidable threat to liberty. As they prepared to meet in the Pennsylvania State House-the same building in which Americans had declared their independence in 1776-they were in a mood to launch a second revolution in American government.

CHAPTER THREE.

THE CONSt.i.tUTIONAL CONVENTION OF 1787.

A REVOLUTION IN GOVERNMENT.

THE FIFTY-FIVE MEN WHO GATHERED in the a.s.sembly Room of the Pennsylvania State House in the summer of 1787 faced a formidable task. The thirteen "united states" that comprised the American union under the Articles of Confederation were in fact profoundly disunited. America, by the extraordinary expanse of its territory, the ethnic and religious diversity of its population, and the existence of thirteen independent and sovereign states, each possessing distinct cultural and political traditions and a mult.i.tude of varying and competing interests, was b