Obstacles To The Constitution

WARREN E. BURGER

Last September 17 marked the 200th anniversary of the signing of the first constitution of its kind in all history The focus was on Philadelphia, but the whole nation watched –and much of the world. This organic law, defining and allocating the powers granted to the federal government, and dividing powers between the state and federal governments, reflected much more than the work of 55 delegates over a period of four months. It was an affirmation of ideas and ideals evolving over centuries, including concepts of the French thinkers, British, and of the Scottish Enlightenment.

The remarkable success of this charter of government controlled by the governed is suggested by the fact that in our time most Americans simply take it for granted. It is difficult even to imagine what our "America" would be like today if, during the last two centuries, it had been governed as the thirteen sovereign states functioned under the Articles of Confederation–that treaty of "firm friendship" explicitly preserving thirteen independent sovereign states. Perhaps the states of that America would resemble the states of Central and South America where the sharing of a common tradition, a common language–and largely a common religion – has not been enough to unite them in a federal union. Had we tried to continue under the loose, feeble Articles of Confederation of 1781 perhaps the area between Canada and Mexico would resemble the Central and South American states of today

The creation and acceptance of a Constitution that unified the thirteen former colonies under a strong national government soon after the victory of Yorktown was far from inevitable. To appreciate what an extraordinary accomplishment the Constitution represents one must recall the historical, economic, and political setting in which it was drafted. Put most simply in 1787 the thirteen former British colonies were not behaving like a nation, and of course they did not constitute a true nation. There was much that tended to unify Americans in the late eighteenth century; they had a common language and a common tradition; they or their immediate ancestors had come here seeking greater religious and political freedom and new opportunities; they had shared in the hardships of the long war for independence. But the common language, the common urge for freedom, and the shared war experiences were offset by regional and ideological conflicts, commercial rivalries, and widespread fear of a strong central government.

In 1787, the 13 states were made up of a collection of small farms and small communities – and plantations–stretching along the Atlantic coast from Canada to Spanish Florida. The largest city Philadelphia, had only 40,000 people. Only one significant river, the Charles in Boston, had been bridged; others were crossed only by ferry – weather and floods permitting. Boston and Atlanta were weeks of travel apart; it took almost as long to get a letter to Atlanta from Boston as from London. Some settlers had crossed the Appalachians into the Western lands. Many early leaders questioned whether a federal republic could possibly extend over such a large area. How could representatives of the people stay in touch with their constituents so many miles, so many weeks apart?

Such manufacture as there was in the colonies was largely in New England, although even that region consisted for the most part of self-sufficient family farms. Much of the economic wealth of the South resided in large plantations that had become dependent on the evil institution of slavery. By 1787, the tensions between the slave states and the abolitionist states had emerged and posed a great obstacle to uniting the states into a true nation.

Individual loyalty to the states was strong in the eighteenth century and, indeed, well into the nineteenth century People tended to think of themselves as Virginians or New Yorkers first and Americans second. They regarded themselves as allies of people in other states. During the Revolutionary war, when New Jersey troops reporting for duty with General Washington at Valley Forge were asked to swear allegiance to the "United States," the soldiers at first declined, saying, "New Jersey is our country"

Quite aside from their loyalty to their own states, the American people in 1787 had a great and understandable fear of central governments as a result of their experience as colonists. They had fought a revolution to escape from a strong, unresponsive central government in distant London. Patrick Henry of Virginia was so opposed to the idea of a strong central government that he refused even to be a delegate to Philadelphia, saying he "smelt a rat." The "rat" he feared was born at Philadelphia, and he tried to kill it at the Virginia ratification convention in 1788.

These strong local interests defined the political map in America after British authority was cast off in 1776. The former colonies became, literally separate, independent, sovereign states who joined in an alliance under the Articles of Confederation to conduct the war against England. But this was hardly more than a multilateral treaty – a "firm league of friendship" as the Articles recited. If George III and his ministers had not needed to keep their powder dry with a wary eye on France and Spain, that "firm league" might not have prevailed over a great world power.

Under this "alliance" of 1781-1789, the states sent representatives to the Continental or Confederation Congress, but that body's lack of powers caused despair to the leaders of the Revolution. For example, the Congress had no power to tax, relying instead on "contributions" from the states –Alexander Hamilton was "receiver of revenues" not collector of taxes. The states were not always prompt with their payments; in 1787, one state was in default of its "dues" for the previous five years. That Congress had become so ineffectual that many Members stopped attending – during a four month session beginning in October 1785, it had a quorum on only ten days.

Friction between the states was exacerbated by their exercise of sovereign powers to promote their differing and often conflicting interests. New York, for example, erected trade barriers and imposed duties on goods bound for Connecticut and New Jersey through New York harbors. This was profitable for New York, but it enraged its neighbors. When the Continental Congress failed to take any action against this practice, the New Jersey legislature voted to withhold its financial support from the Confederation. Other states with good ports– Pennsylvania, Massachusetts, and South Carolina – treated their less fortunate neighbors in much the same way that New York treated Connecticut and New Jersey

Each state was also free to issue its own currency; in the mid- 1780's, seven different state currencies were in circulation, along with foreign currency and promissory notes issued by the Continental Congress. The states seemed almost to compete with each other to see which could issue the most paper money; not surprisingly, much of the state-issued money was eventually worth next to nothing. The same was true of currency issued by the Continental Congress – "not worth a continental," some said.

The weaknesses of the Confederation were acutely evident in the area of foreign relations. The Continental Congress could not force the states to abide by the treaties it made. People resisted repayment of debts owed to British creditors, as required by the Treaty of Paris, until, in 1796, the Supreme Court decided the only case ever argued by John Marshall in the Supreme Court – Ware v. Hylton, 3 Dallas 199 (1796). Several states entered treaties with Indians that conflicted with treaties made by the Continental Congress. We could not protect American shipping from the Barbary pirates – to whom we paid great sums in gold to ransom hostages. The charge for insuring goods on American ships in that day was double the rate for British and French ships. Our Navy could not protect freedom of the high seas.

States often had very different foreign policy interests. States whose western lands extended to the Mississippi River wanted a treaty with Spain that would permit Americans to use the river and the Gulf of Mexico for shipping agricultural and other products. States with no western lands, on the other hand, were not willing to risk a confrontation that might bring a Spanish Armada that would threaten trade with cities on the East Coast. In 1785, Massachusetts and New Hampshire restricted British trade in their ports in an effort to pressure the British to reopen trade with the West Indies. But Connecticut, seeking more trade for herself, promptly undercut the other states by announcing that British ships would be welcome in its ports.

Differences among the states on trade matters also led to political strife, said Madison, "Most of our political evils may be traced to our commercial ones." Here Madison, Washington and Hamilton were of one mind.

The Continental Congress had little success resolving disputes between the states. In one case, involving the distribution of prize money resulting from the capture of a British ship, commissioners of the Continental Congress overturned a Pennsylvania court's judgment, but Pennsylvania's officials simply ignored the decision. In another case, the Continental Congress successfully resolved a dispute over land claimed by Connecticut in part of what is now Pennsylvania– but not before Connecticut had sent settlers there, who ended up fighting with Pennsylvania troops.

Although the post-Revolution years revealed that the Articles of Confederation had many flaws, relatively few people thought that unifying the states under a strong central government was the best remedy From 1781 to 1783 several men who would become important figures at the Philadelphia Convention–notably Madison, Pennsylvania's Robert Morris and Hamilton – attempted without success to strengthen the Articles of Confederation by interpretation and amendment. Beginning in early 1785, however, several events helped people to recognize the disadvantages of the loose-knit alliance under the Articles.

The meeting we now call the Mount Vernon Conference of March 1785 was one of the first. Virginia and Maryland were quarreling over boundaries and the use of the Potomac River and Chesapeake Bay–the sort of dispute that had often led to war in other parts of the world. In an effort to resolve the conflict, both states appointed commissioners, but they could not agree. George Washington then invited them to Mount Vernon. Under the influence of his great prestige they were able – no doubt with some nudging – to resolve their differences. That meeting dramatized the need for a comprehensive political solution to the commercial and other rivalries that separated the states.

After the Mount Vernon meeting the Virginia legislature invited all the states to send representatives to a meeting at Annapolis, Maryland, to discuss interstate commercial issues. Only five states attended in September, 1786; those delegates adopted a resolution noting the grave crisis and the futility of considering commercial problems without also addressing the underlying political issues. The resolution was sent to all the states as well as to the Confederation Congress; the Congress proposed that the states send representatives to Philadelphia in May 1787 to discuss all matters necessary "to render the Constitution of the Federal Government adequate to the exigencies of the Union." They were calling themselves the "United States," but calling a thing by a name does not make it true. The Virginia legislature approved, and its legislature placed George Washington at the head of its delegation. Six other state legislatures followed suit in short order.

In 1786, an episode then occurred that made a tremendous impression on the states when some were uncertain whether to send delegates to Philadelphia. An uprising now known as Shays' Rebellion broke out in western Massachusetts. It began as a series of protests by indebted farmers who wanted paper money and more favorable foreclosure and bankruptcy laws. An armed band led by Daniel Shays – a former officer in the Revolution –defeated the state militia and forced some state courts to adjourn. Late in 1786 and early in 1787, Shays gathered a large force and attempted to seize the federal arsenal at Springfield, but he and his men were routed by Massachusetts troops. George Washington summarized the sentiments of many of his countrymen by expressing disgust that the states, having just won a difficult war, could scarcely keep order in peacetime.

Finally on February 21, 1787, the Continental Congress, with some reluctance, officially invited the 13 states to send delegates to Philadelphia. Although Washington, Hamilton, Madison and others had urged calling a true constitutional convention, the Continental Congress – many of whose members shared Patrick Henry's fears – refused to comply fully Its resolution was explicit: the convention was "for the sole and express purpose of revising the Articles of Confederation." There was no hint of drafting a wholly new Constitution. Patrick Henry's "rat" still worried many people.

The Convention was scheduled to begin on May 14, 1787, in Philadelphia, but even at that late date, it appeared that the meeting might not come to pass. Only two out-of-state delegates – Madison and Washington – had arrived by May 14. Rhode Island flatly refused to appoint any delegates, it would be many weeks before New Hampshire had enough money to send its representatives, and all five delegates initially selected by Maryland declined to serve. By May 25, however, enough delegates from other states were present to form a quorum and the meeting began its official deliberations.

The beginning of the convention, however, was, of course, not the end of controversy Regional and ideological conflicts shaped the views of many of the delegates and fueled heated debates on the Convention floor. But those who desired a strong central government took the initiative and soon it became clear to all the delegates that it was not enough simply to "revise" the Articles of Confederation; instead they drafted a wholly new constitution. Some did not agree; two of the three New York delegates walked out early happily leaving Alexander Hamilton alone to speak for New York.

Many of the differences were of such magnitude that they threatened to deadlock the convention. For example, the delegates had a great deal of difficulty in agreeing on a means of apportioning representation for the legislature of the new national government. Finally they reached the "Great Compromise": equal representation for each state in the Senate, and proportional representation in the House. They also forged a compromise on the divisive issue of slavery which, flawed as it was, resolved an impasse that threatened to abort the convention. Congress was given power to regulate interstate and foreign commerce –including the slave trade – but could not prohibit the importation of slaves for 20 years.

The anti-slavery voices were not silent and, while the delegates debated, the Continental Congress on July 13 enacted the Northwest Ordinance, precluding slavery in the new states to be formed in the Northwest Territory states. Tragically it would take a bloody civil war finally to end the terrible evil of human slavery.

The Constitution's drafting, however, was just the first step. That a group of delegates agreed on language in a document was one thing, but convincing the states to ratify the novel concepts embraced in the document was quite another. The legislatures of five states –Delaware, Pennsylvania, New Jersey Georgia, and Connecticut – ratified the Constitution within a few months; Rhode Island and North Carolina initially rejected it. The vote in a few key states was perilously close. Massachusetts affirmed by a vote of 187 to 168. The Virginia Ratification Convention took place over the course of three weeks with the great patriots Patrick Henry and George Mason strongly opposed. Even the support of George Washington, James Madison, Edmund Randolph, and young John Marshall secured ratification by a vote of only 89 to 79. Meanwhile, in New York, Alexander Hamilton, John Jay and James Madison published a series of widely-read newspaper articles supporting the Constitution that were later collected as the "Federalist Papers." Even with these efforts, New York affirmed by only 30 to 27. New Hampshire became the ninth state to ratify 57 for and 46 against. Rhode Island, the last holdout, did not ratify the Constitution until 1790, by a vote of 34 to 32.

Looking back, we see that the charter for the new United States of 1789 was conceived, drafted, and ratified in the face of great regional and ideological conflicts and a pervasive, lingering fear of a strong national government. The Constitution, as a plan for government, is remarkable for many reasons. It has succeeded in securing freedoms, opportunities, and prosperity for millions of people; it has served as a blueprint for constitutional democracy for other people, and it has survived two centuries of change and strife. But perhaps the most remarkable thing about the Constitution – given the conditions of 1787 –is that we secured it at all.