The American Revolution: A History (16 page)
Nowhere else in Christendom was religion so fragmented. Yet nowhere else was it so vital. American Protestantism was broken into a multiplicity of denominations, none of which claimed a monopoly of orthodoxy, yet out of whose competition emerged a common Christian truth. There was nothing like it in the Western world.
VII
The Federal Constitution
The American Revolution, like all revolutions, could not fulfill all the high hopes of its leaders. Within a decade after Independence was declared, many Revolutionary leaders had come to doubt the way America was going. Not only were they aware that the Confederation was too weak to accomplish its tasks, both at home and abroad, but they were also having second thoughts about the immense power that had been given to the popular state legislatures in 1776. In the mid-1780s frustration with piecemeal changes in the Articles of Confederation came together with mounting concern over examples of legislative tyranny and other political and social conditions in the states to produce a powerful momentum for constitutional change. The result was the federal Constitution of 1787.
This new national Constitution, which replaced the Articles of Confederation, not only limited the authority of the states but also created an unprecedented concentration of power at the federal level. Many Americans could only conclude that the new Constitution represented as radical a change as the Revolution itself. At last, in the eyes of some, the inauguration of a new federal government promised the harmony and stability that would allow America to become a great and glorious nation.
THE CRITICAL PERIOD
For some Americans the 1780s had become a critical period, a point at which the Revolution and the entire experiment in republicanism seemed to be in danger. The very success of the Revolution in opening up opportunities for prosperity to new and lower levels of the population helped to create a sense of crisis among certain members of the Revolutionary elite.
Too many ordinary people, some felt, were distorting republican equality, defying legitimate authority, and blurring those natural distinctions that all gentlemen, even republican gentlemen, thought essential for social order. Everywhere, even among the sturdy independent yeomen—Jefferson’s “chosen people of God”—private interests, selfishness, and moneymaking seemed to be destroying social affection and public spirit—the very qualities of virtue that were required of republican citizens. The passing of unjust and confusing laws by the state legislatures—“democratic despotism,” it was called—suggested that the people were too self-interested to be good republicans. Some therefore feared that America was doomed to share the fate that had befallen the ancient republics, Britain, and other corrupt nations. Americans, concluded Governor William Livingston of New Jersey, in a common elitist reckoning of 1787, “do not exhibit the virtue that is necessary to support a republican government.”
The Revolution had radically democratized the new state legislatures by increasing the number of their members and altering their social character. Men of more humble and more rural origins and less educated than those who had sat in the colonial assemblies now became representatives. In New Hampshire, for example, in 1765 the colonial assembly had contained only thirty-four members, almost all well-to-do gentlemen from the coastal region around Portsmouth. By 1786 the state’s House of Representatives had increased to eighty-eight members. Most of these were ordinary farmers or men of moderate wealth, and many were from the western areas of the state. In other states the change was less dramatic but no less significant.
The need to bring the state governments closer to more ordinary people was also reflected in the shifts of most of the state capitals from their colonial locations on the eastern coastline to new sites in the interior—from Portsmouth to Concord in New Hampshire, from New York City to Albany in New York, from the dual colonial capitals Burlington and Perth Amboy to Trenton in New Jersey, from Philadelphia to Lancaster in Pennsylvania, from Williamsburg to Richmond in Virginia, from New Bern to Raleigh in North Carolina, from Charleston to Columbia in South Carolina, and from Savannah to Augusta in Georgia.
Everywhere electioneering and the open competition for office increased, along with demands for greater public access to governmental activities. The number of contested elections and the turnover of legislative seats multiplied. Assembly proceedings were opened to the public, and a growing number of newspapers (which now included dailies) began to report legislative debates. Self-appointed leaders, speaking for newly aroused groups and localities, took advantage of the enlarged suffrage and the annual elections of the legislatures (a radical innovation in most states) to seek membership in the assemblies. New petty entrepreneurs like Abraham Yates, a part-time lawyer and shoemaker from Albany, and William Findley, a Scotch-Irish ex-weaver from western Pennsylvania, bypassed the traditional hierarchy and vaulted into political leadership in the states.
Under these circumstances many of the state legislatures could scarcely fulfill what many Revolutionaries in 1776 had assumed was their republican responsibility to promote the general good. In every state, decisions had to be made about the loyalists and their confiscated property, the distribution of taxes among the citizens, and the economy. Yet with the general political instability, the common welfare in the various states was increasingly difficult to define. By the 1780s James Madison concluded that “a spirit of
locality
” in the state legislatures was destroying “the aggregate interests of the community.” This localist spirit, he thought, was a consequence of having small districts or towns elect members of the state legislatures. Each representative, said Ezra Stiles, president of Yale College, was concerned only with the special interests of his electors. Whenever a bill is read in the legislature, “every one instantly thinks how it will affect his constituents.”
This kind of narrow-minded politics was not new to America. But the proliferation of economic and social interests in the post-Revolutionary years, along with the greater sensitivity of the enlarged elected popular assemblies to conflicting demands of these interests, now dramatically increased the intensity and importance of such parochial-interest politics. Debtor farmers urged low taxes, the staying of court actions to recover debts, and the printing of paper money. Merchants and creditors called for high taxes on land, the protection of private contracts, and the encouragement of foreign trade. Artisans pleaded for price regulation of agricultural products, the abolition of mercantile monopolies, and tariff protection against imported manufactures. And entrepreneurs everywhere petitioned for legal privileges and corporate grants.
All this political scrambling among contending interests made lawmaking in the states seem chaotic. Laws, as the Vermont Council of Censors said in 1786 in a common complaint, were “altered—realtered—made better—made worse; and kept in such a fluctuating position, that persons in civil commission scarcely know what is law.” As James Madison pointed out, more laws were enacted by the states in the decade following independence than in the entire colonial period. Many of them were simply private acts for individuals or resolves redressing minor grievances. But every effort of the legislatures to respond to the excited pleas and pressures of the various interests alienated as many as it satisfied and brought lawmaking itself into contempt.
By the mid-1780s many American leaders had come to believe that the state legislatures, not the governors, were the political authority to be most feared. Not only were some of the legislatures violating the individual rights of property-owners through their excessive printing of paper money and their various acts on behalf of debtors, but in all the states the assemblies also pushed beyond the generous grants of legislative authority of the 1776 Revolutionary constitutions and were absorbing numerous executive and judicial duties—directing military operations, for example, and setting aside court judgments. It began to seem that the once benign legislative power was no more trustworthy than the detested royal power had been. Legislators were supposedly the representatives of the people who annually elected them. But “173 despots would surely be as oppressive as one,” wrote Jefferson in 1785 in his
Notes on Virginia.
“An
elective despotism
was not the government we fought for.”
These growing fears of tyrannical legislatures forced many leaders to have second thoughts about their popularly elected assemblies. Indeed, the ink was scarcely dry on the Revolutionary state constitutions before some were suggesting that they needed to be revised. Beginning with the New York constitution of 1777 and proceeding through the constitutions of Massachusetts in 1780 and New Hampshire in 1784, constitution-makers now sought a very different distribution of the powers of government from the distribution made in 1776.
Instead of draining all power from the governors and placing it in the legislatures, particularly in the lower houses, as the early state constitutions had done, these later constitutions strengthened the executives, senates, and judiciaries. The Massachusetts constitution of 1780 especially seemed to many to have recaptured some of the best characteristics of the English constitutional balance, which had been forgotten during the popular enthusiasm of 1776. The new Massachusetts governor, with a fixed salary and elected directly by the people, had more of the independence and some of the powers of the old royal governors, including those of appointing to offices and vetoing legislation.
With the Massachusetts constitution as a model, other constitutional reformers, including Madison and Jefferson in Virginia and James Wilson and Robert Morris in Pennsylvania, worked to revise their own state constitutions. The popular legislatures were reduced in size and their authority curbed. Senates or upper houses were instituted where they did not exist, as in Pennsylvania, Georgia, and Vermont. In states where senates did exist, they were made more stable through longer terms and higher property qualifications for their members. The governors were freed of their dependence on the legislatures and given the central responsibility for government. And judges became independent guardians of the constitutions. By 1790, Pennsylvania, South Carolina, and Georgia had reformed their constitutions along these conservative lines. New Hampshire, Delaware, and Vermont soon followed in the early 1790s.
At the same time that political leaders were attempting to restrengthen the authority of governors, senates, and judges, they also tried to limit the power of the legislatures by appealing to the fundamental law that was presumably embodied in the states’ written constitutions. Since many of the constitutions had been created by simple legislative act, it was not easy to distinguish between fundamental and ordinary law.
At first, several of the states had grappled with various devices to distinguish between their fundamental constitutions and ordinary legislation. Some simply declared their constitutions to be fundamental; others required a special majority or successive acts of the legislature for amending the constitution. But none of these measures proved effective against repeated legislative encroachments.
In attempting to solve this problem Americans gradually came to believe that if a constitution was to be truly immune from legislative tampering, it would have to be created, as Jefferson said in 1785, “by a power superior to that of the ordinary legislature.” For a solution, Americans fell back on the institution of the convention. In 1775–76 the convention had been merely an ad hoc legislative meeting, lacking legal sanction but made necessary by the crown’s refusal to call together the regular representatives of the people. Now, however, the convention became a special alternative institution representing the people and having the exclusive authority to write or amend a constitution. When Massachusetts and New Hampshire came to write new constitutions in the late 1770s and early 1780s, the proper pattern of constitution-making and constitution-altering had become clear. Constitutions were formed by specially elected conventions and then placed before the people for ratification.
With this idea of a constitution as fundamental law immune from legislative encroachment firmly in hand, some state judges during the 1780s began cautiously moving in isolated cases to impose restraints on what the assemblies were enacting as law. In effect, they said to the legislatures, as George Wythe, judge of the Virginia Supreme Court, did in 1782, “Here is the limit of your authority; and, hither, shall you go, but no further.” These were the hesitant beginnings of what eventually would come to be called judicial review. Many leaders, however, were as yet unwilling to allow appointed judges to set aside laws that had been made by the people represented in democratically elected legislatures. “This,” said a perplexed James Madison in 1788, “makes the Judiciary Department paramount in fact to the Legislature, which was never intended and can never be proper.”
As vigorously as all these constitutional reforms of the states were urged and adopted in the 1780s, however, they never seemed sufficient. By the mid-1780s many reformers were thinking of shifting the arena of constitutional change from the states to the nation and were looking to a modification of the structure of the central government as the best and perhaps only answer to America’s political and social problems.
Even before the Articles of Confederation were ratified in 1781, the experiences of the war had exposed the weakness of the Congress and had encouraged some Americans to think about making changes in the central government. By 1780 the war was dragging on longer than anyone had expected and the skyrocketing inflation of the paper money used to finance it was unsettling commerce and business. With congressional delegates barred from serving more than three years in any six-year period, leadership in the Confederation was fluctuating and confused. The states ignored congressional resolutions and refused to supply their allotted contributions to the central government. With no ability to raise money, the Congress simply ceased paying interest on the public debt. The Continental Army smoldered with resentment at the lack of pay and began falling apart through desertions and even outbreaks of mutiny. All these circumstances forced mercantile and creditor interests, especially those centered in the mid-Atlantic states, to seek to add to the powers of the Congress. Reformers tried to strengthen the Congress by broadly interpreting the Articles, by directly amending them (which required the consent of all the states), and even by threatening the states with military force.
