A Patriot's History of the United States: From Columbus's Great Discovery to the War on Terror (26 page)

The compromise over slavery did not come without a fight. Gouverneur Morris, one of the most outspoken critics of slavery at the convention, attacked Wilson’s fractional formula and asked of the slaves counted under the three-fifths rule, “Are they admitted as Citizens? Then why are they not admitted on an equality with White Citizens? Are they admitted as property? Then why is not other property admitted to the computation?”
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Massachusetts’ Elbridge Gerry, later made famous for gerrymandering, the creative shaping of legislative districts for political gain, echoed this line of thinking, sarcastically asking why New Englanders would not be allowed to count their cattle if Georgians could count their slaves.
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Morris and others (including Jefferson) recognized that slavery promised to inject itself into every aspect of American life. Consider “comity,” the principle that one state accept the privileges and immunities of other states to encourage free travel and commerce between them. Article IV required states to give “full faith and credit” to laws and judicial decisions of other states. Fugitives from justice were to be returned for trial to the state of the crime, for example. Almost immediately, conflicts arose when slaves escaped to northern states, which then refused to oblige southern requests for their return. Northern free blacks working in the merchant marine found themselves unable to disembark from their ships in southern ports for fear of enslavement, regardless of their legal status. Seven southern coastal states actually imprisoned free black sailors upon their arrival in port.
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At the time, however, the likelihood that the southerners would cause the convention to collapse meant that the delegates had to adopt the three-fifths provision and deal with the consequences later. Realistically, it was the best they could do, although it would take seventy-eight years, a civil war, and three constitutional amendments to reverse the three-fifths compromise.
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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.”
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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.”
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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.
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Having thus erected their grand plan to reshape American republicanism, the nationalists returned to their home states to labor 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.
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Revolutionary and Early National Political Factions and Parties, 1781–1815

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.
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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.
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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.
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