US Lecture 3

American History
Lecture 3
The New Constitution (1787-1789)

KEY THEMES:

   * The move from an unwritten to a written constitution.
   * Who was right---the Federalists or the Anti-Federalists?

THE STATUS QUO IN 1787
Population (1790):

   * 3,930,000

Political:

   * There were thirteen states.
   * America was governed by its first constitution, the Articles of
     Confederation. This constitution was blamed (rightly) for the
     country's inability to act in a coordinated fashion in world affairs,
     and (wrongly) for domestic strife such as Shay's rebellion, which had
     its real roots in rural / urban conflict and the high taxation that
     had resulted from war debts.

Military:

   * The war with Britain was over, and America had assumed a position of
     neutrality in world affairs.
   * Britain continued to occupy the North West Territory, on United States
     soil.
   * America had no substantial military, beyond its local militias.

WRITING A NEW CONSTITUTION

Introduction.
The solution eventually chosen to overcome the shortcomings of the Articles
of Confederation was its complete replacement by another constitution,
which is still in effect today, 201 years after it was drafted. It was not
the only available solution, and many people felt that in throwing out the
old constitution, the baby was being thrown out with the bath water---the
baby being the liberties that the Americans had fought so hard to win.

During the course of the debate over whether or not to ratify the new
constitution, the people who held this point of view became known as
"anti-federalists," because they were against the conversion of the
confederation into a tighter compact (a very loose federation is known as a
"confederation," while the term "federation" refers to a system in which
the central government is far more powerful). The advocates of the
increased federal powers granted under the new constitution were called the
"federalists."

The Changing conception of "Constitution".
Prior to the revolution, Americans understood the word "constitution" in
precisely the same way that Englishmen, or New Zealanders, do today. The
constitution was the guiding spirit of the law. It did not mean, as it does
today in the United States and in the many countries that have followed the
American example, a written document which cannot be amended except by
means of special legislative actions that cannot be achieved without the
existence of a high degree of consensus in society.

However, the "constitution" which the colonists were perpetually discussing
did represent a series of laws and customs that were regarded as being more
fundamental, and of far greater importance, than most ordinary laws.
Violation of these laws and customs represented a serious breach in the
accepted way of doing things. It was widely accepted that if the government
engaged in such violations---including violations that occurred as a result
of enacting new laws by means of processes that were formally legal but
that nevertheless violated the population's sense of what was right and
what was wrong---could lead to the population deliberately ignoring the new
unconstitutional law, or even, in extreme circumstances, rising up in
rebellion to overthrow a king or parliament that had systematically
violated the constitution.

This right of rebellion had been practiced in Britain on two occasions in
the 1600s:
1. In the 1640s, when King Charles I had been overthrown.
2. In the 1680s, when King James II had been overthrown (the so-called
"Glorious Revolution")
And even earlier than this, the right of rebellion had been practiced by
the nobles under King John, who had threatened to remove him as king unless
he agreed to sign a contract with them, known as the "Great Charter," or
Magna Carta, in which he promised not to engage in certain acts. The
revolutionaries of the 1640s and 1680s had tried to do precisely the same
thing, imposing overt written contracts from their kings. The successful
revolutionaries of 1688 had gone even further than their predecessors: They
had tried to create a contract that would bind not only the present
monarch, but also all of his successors. They had insisted that the new
king and queen (the dyarchs, William and Mary) 1, sign a contract titled the
"Bill of Right." As part of the deal with the new dyarchs, Parliament
insisted that they agree that all future monarchs agree, as part of the
coronation ceremony, to be bound by the Bill of Right. In this way, the
informal and unwritten constitution was transformed into a partly formal
and partly written constitution.

The concept of a people's right of rebellion against a tyrannical king had
been legitimized in the writings of the philosopher John Locke, who
described it as an "appeal to heaven"---that is, to the law of God, which
is supreme over all human laws. Any law of man that violates a law of God
must obviously be an illegal law. In practical terms, it has been trumped
by a higher suit of laws.

There were some obvious problems with this arrangement.

1. Even though part of the constitution (the Bill of Right) was now in
written form, many of the rights that people regarded as being most
important were not contained in this document. Therefore the constitution
was still largely unwritten. And being unwritten, it was subject to varying
interpretations.

2. The two methods of responding to constitutional violations (flouting the
law and open rebellion) were dangerous and impractical. In the real world
it is the strong rather than the righteous who can get away with such
actions. This means that sometimes the law would be flouted when it really
should be obeyed. It also meant that sometimes people sacrificed
everything, including their lives, in unsuccessful attempts to rebel
against genuine acts of tyranny.

3. Sometimes practical circumstances change, and there is need for the
constitution to change in order to reflect the fact that society is a
different place than it had previously been. For example, the
constitutional settlement of 1688 had been entirely satisfactory from the
point of view of British society, and is still in place to this very day.
But when British civilization grew and spread across the Atlantic, the
division of power between the monarch and Parliament did nothing to prevent
the collusion of king and parliament in order to exploit the colonists. But
there was no means of amending the constitution other than ignoring the law
and open rebellion, and the colonists tried both (at great cost to all
concerned) before finally throwing up their hands and deciding to establish
a constitution of their own. In other words, a less painful means of
amendment was needed.

The history of American development between the early stages of the
revolution in the 1760s and the ratification of the present Constitution of
the United States in 1789 is the story of the movement from a largely
unwritten constitution with no formal means of enforcement to a detailed
written document with elaborate and detailed mechanisms of interpretation
and enforcement. This is the real revolution that takes place in this
period, and it is the most significant contribution that America has ever
made to the world of ideas. It also explains why the American revolution is
normally accepted to have begun in 1763 and to have ended in 1789, since
the entire transformation, both in the minds of the American people and in
the governing documents and institutions of their society, takes place in
this period.

It should be stressed at once that this revolution was not complete. Such
things never are. To this day, much of America's de facto constitution is
not included in the formal Constitution of the United States. For example,
the party structure is absent. So are the all-powerful committees of
Congress. This was the result of the fact that the framers of the United
States Constitution were not gifted with perfect foresight. Nonetheless,
far more of what is really important about America is contained in the
written constitution than in any other country, except Switzerland.

As well, it should not be assumed that the transformation from an unwritten
to a written constitution, and from an informal to a formal system of
enforcement and amendment, took place at a single shot, when the present
constitution was designed in Philadelphia in the summer of 1787. On the
contrary, there were several important precedents:

1. The Bill of Right and Magna Carta (discussed above)

2. Prior to 1763, the colonies had already had written contracts with the
king, which were effectively constitutions on the model of the Bill of
Right, in that they laid out formally the relationship between the
sovereign and the local legislature. It was the overriding of these
charter-constitutions as much as anything else that led to the revolution.

3. During the course of the revolution, the states began the process of
replacing (or in some cases simply expanding upon) their pre-existing
colonial charters. In some cases the legality of these charters was
challenged, and the states reacted by holding constitutional conventions to
reaffirm the validity of the charters, or to bestow legitimacy on the new
constitutions.

4. The Articles of Confederation was itself a written constitution. It
lacked effective means of adjudication or enforcement, but it was intended
to be a comprehensive document formalizing the entire constitutional
relationship between the Confederation government and the states, and in
this respect it was a major leap forward. As well, it contained a mechanism
for its own amendment (the admittedly awkward practice of seeking the
unanimous approval of all state legislatures for a change). This
recognition that constitutions are imperfect documents that can and should
contain within themselves the means of their own rewriting is a
particularly valuable innovation.

5. The practice under which courts would strike down legislation found to
be in violation of the provisions of a written constitution---known as
"judicial review" had been initiated in Rhode Island, in the case of
Trevett v. Weeden (1786). In this case, a butcher named John Weeden
appealed a conviction in which he had been found guilty and fined for
refusing to accept devalued paper money as payment for a debt. Under this
law, which the state legislature had passed earlier in the year, he had
been denied the right to a jury trial. The state supreme court noted that
the denial of a jury trial represented a violation of the state charter and
on this basis stated that the law was unconstitutional. This represents the
first time that the action of a parliament (ie. the legislature plus the
executive) had been found unconstitutional and thereby struck down. Prior
to this, only the actions of the executive (the king or governor) had ever
been found to be unconstitutional.

So in creating a written constitution in 1787, the Americans were drawing
on experience. Indeed, what they were really doing was taking the best in
prior innovations that had already been shown to work well, and copying
them. In this respect the Constitution of the United States is much more an
Evolutionary, organic document than most constitutions that have emerged
out of revolutions.

How the Constitution was designed.
As early as 1780, Alexander Hamilton had been pushing, in his
"Continentalist" papers, for a new and stronger central government. Over
time, this position gained support as the Articles of Confederation were
found to be too weak.

In 1785, a group of delegates from Maryland and Virginia met at
Washington's home at Mount Vernon to discuss a fishing and navigation
dispute regarding the Potomac River and Chesapeake Bay, which separate the
two states. These talks did not settle the dispute, which continues to this
day, but they did cause several other states to join, the discussions to
broaden, and the Virginia state legislature to extend an invitation to all
states to attend a special convention to discuss issues of general
interest, to be held in 1786.

This meeting, held in Annapolis, Maryland in September 1786, found only
five states in attendance. One of them, however, was Alexander Hamilton,
who thought he might be able to spin this ongoing forum of meetings into a
convention of all the states, at which revisions to the Articles of
Confederation could be discussed, thereby achieving his objective of a
stronger central government. He wrote the report of the convention, which
called for a meeting to amend the Articles, to meet at Philadelphia in May
1787.

The convention took place in Philadelphia, starting on May 25 and lasting
into September. A total of 74 delegates had been appointed by 12 states
(Rhode Island refused to send delegates, which under the unanimity rule
should have put an end then and there to efforts at amendment). Only 55
actually showed up. However, this included some of the greatest minds that
American has ever produced:

   * James Madison
   * Alexander Hamilton
   * Benjamin Franklin
   * George Mason
   * Gouvernor Morris
   * George Washington, who was unanimously elected to chair the
     proceedings.

The greatest loss was the absence of John Adams, who had designed the
Massachusetts Constitution, and of Thomas Jefferson, who had brilliant
insights in this area. They were America's ministers to Britain and France,
respectively.

The Constitutional convention, like all the great conventions that have
successfully produced federal conventions in later decades, was an exercise
in practical compromise between the interests that were represented in the
states. This was possible only because the basic philosophies of the
participants were so much in synch.

In particular, three important compromises were reached, which made final
agreement possible. Johnson discusses all three, so I'll just repeat them
briefly:

1. Small states wanted equal representation, as under the Articles. Large
states wanted representation by population. The solution was a two-house
legislature, with one elected by popular suffrage and divided on the basis
of population, and the other appointed by the states and with equal
representation by state. All laws would have to be passed by both houses.

2. Slavery provided an interesting problem, in that some states might
reject a constitution which condoned it, and others would reject a
constitution that condemned it. Moreover, slaves represented property and
wealth, and it seemed logical that they should be subject to taxation. But
how could they be taxed without imposing a special burden on the slave
states? The answer was to count each slave as part of a person (3/5 of a
person was the number chosen) both for purposes of taxation and for
purposes of taxation.

3. The president was to be selected by means of indirect election, rather
than by either outright election or by appointment on the part of the
Congress, as had been the case under the Articles of Confederation. This
was a compromise between Hamilton, who would have been willing to consider
some form of elective monarchy, and the defenders of the status quo, who
had developed a great distaste for strong executives, thanks to the
experience of dealing with King George III.

What the Constitution contained.
The new constitution contained the following key features:

1. Article I.
A new bicameral legislative body would be created, which would be called
"Congress" in honour of the Confederation, Continental and Stamp Act
congresses that it would be replacing.

     a) The lower house, styled the "House of Representatives," would
     consist of delegates elected to two-year terms by means of a vote
     of all free males over the age of 21 (modified by three later
     amendments to include all adult males, then all adults of either
     gender, and finally all adults over age 18).
     b) The upper house, styled the "Senate," would consist of two
     delegates from each state. Delegates, called "Senators," would
     serve six-year terms, with one-third being appointed every two
     years, so that following any individual period of appointment,
     two-thirds of the senators would be veterans of at least two
     years' standing.

The intention was for the lower house to serve as a house of popular
representation (there had been no popular representation in the old
Congress, which consisted entirely of appointed delegates). The Senate
would be a direct descendant of the Continental Congress, in that it would
be a house of state representation. Senators would be appointed directly by
the state legislatures, and each state would have a representation equal to
all of the others. However, the annoying problem of divided delegations
under the Confederation would be eliminated by means of the rule that all
states would have the same number of Senators, and that each Senator could
vote as he wished.

Laws are initiated in either house, and following debate in the house of
initiation, can be passed on to the other house for further debate.
However, no measure can be considered law until it has been approved by
both houses in identical form. Then it is sent to the President for his
signature.

Before turning to the President, several other features should be stated.

c) Money bills may only be introduced in the House of Representatives, not
the Senate. This was understood by the constitutional framers to be a
measure that would the possibility of wasteful spending proposals initiated
by an executive branch that was captured by special interests. However,
once initiated in the Representatives, a money bill follows the usual life
cycle for a law.

d) The Senate, but not the House of Representatives, plays a role in the
ratification of treaties and of presidential appointments (for example, all
persons nominated to become justices of the Supreme Court must be approved
by a vote of the Senate). This reflects the belief of the framers that the
Senate would be a cautious deliberative body, as the old Confederation
Congress had been, and that as the states' house, it ought to be able to
reject executive actions damaging to the interests of the states.

e) In both houses, most measures require only a simple majority vote to be
enacted, unlike the 2 / 3 majority required in the Confederation Congress.
The exceptions are certain very important measures, where the old 2 / 3
rule was kept. For example, In the event that the President or another high
official is impeached by the House of Representatives (that is, charged by
them with committing a breach of his oath of office, or of some other "high
crime"), a trial will be conducted in the Senate, with a 2 /3 majority
being necessary to convict him.

f) The Congress was assigned eighteen specific powers.

g) Eight specific powers were explicitly placed beyond the law-making
powers of various arms of the federal government. Article I, Section 9 of
the Constitution spells these out:

     i) Congress could not ban the slave trade prior to the year 1808.
     ii) Habeas corpus could not be suspended except in times of
     rebellion or invasion.
     iii) Congress could not pass any laws that would make anything
     illegal after the fact (this is known as an "ex post facto" law).
     iv) Direct taxes, other than poll taxes, were forbidden.
     v) Export duties were forbidden.
     vi) Preferential treatment of the ports or vessels of one state
     over those of another was forbidden.
     vii) No money can be spent without an Act first being passed to
     permit this, and public accounts must be kept.
     viii) The awarding of titles of nobility was forbidden.

2. Article II.
A new executive position was created. The holder of the executive powers
would be known as the "President." He would be elected every four years, by
means of a specially-appointed convention, known as the "electoral
college," which would select from among the different potential candidates.
In theory, this was not intended to be a terribly democratic process---the
state legislatures would appoint delegations, which would vote, like the
delegations to the Confederation Congress, as teams. Candidates for the
office of president might make themselves known to the Electoral College,
but they presumably would not campaign for office, since a small body of
appointed delegates would be making the decision---and might well choose
someone who was not particularly anxious to take the office. Of course,
things turned out a little differently in reality.

The President was intended to have extensive powers (though not as
extensive as they have become in the age of the "Imperial Presidency"):

     a) It is he who controls the machinery of the central government
     on a day-to-day basis, although it was expected that this would
     be farmed out to cabinet members and via them, to a bureaucracy.
     b) He assigns all commissions in the service of the United
     States, including all commissions in the military. In other
     words, he controls appointments to the bureaucracy, and therefore
     patronage.
     c) He is the commander-in-chief of the military.
     d) He conducts foreign policy and negotiates treaties, subject to
     the oversight of the Senate.
     e) He has a role in the legislative process: If the president
     refuses to sign a bill that has been passed by a majority in each
     house of Congress, it cannot become a law unless it is passed
     again, this time with the traditional two-thirds majority in each
     house. This is known as the "veto", and while it is not as
     powerful as the absolute veto enjoyed by the monarch under the
     British / Canadian / Australian system, it does allow the
     president to insist on a return to the tougher rules of the old
     Confederation system whenever he thinks it appropriate.

3. Article III.
The Supreme Court was an important new innovation. A court would be
created, consisting of justices nominated by the President and appointed by
a vote of the Senate. It would have the power to adjudicate in disputes
between the states, or between the federal government and one or more
states. Under the traditional British rule designed to eliminate political
interference in the decisions of courts, members would serve for life, once
they had been appointed. The precise composition of the court was to be
decided by Congress, which could create this design by means of ordinary
legislation passed after the Constitution had been put into effect.

4. Article IV.
This article carried over certain important provisions from the Articles of
Confederation:

     a) The Congress could admit new states, and would administer all
     territories.
     b) Extradition would be provided for, between states---including,
     importantly, the extradition of fugitive slaves.
     c) Every state would be guaranteed a republican form of
     government.

5. Article V.
Anticipating the need for future amendments, the framers constructed a
provision, Article V, which allows for the amendment of the Constitution on
the condition that 2/3 of the members of each house vote in favour of a
proposed amendment, and that 3/4 of all state legislatures also support the
amendment.

6. Article VI.
This provision includes a series of miscellaneous---but critically
important---provisions:

     a) A promise to honour all pre-existing debts;
     b) A statement that no religious tests would be imposed on
     officers of the United States (the first step towards an overt
     guarantee of freedom of religion);
     c) A declaration of the supremacy of this constitution over all
     laws that might in future be enacted by Congress.

7. Article VII.
In order to ensure the maximum level of legitimacy for the new
constitution, this article provided that it would not be valid unless
approved by specially-elected conventions in 3/4 of the states (i.e. in
nine of the thirteen states). This was the closest method available at the
time to an outright referendum, but was seen to have the additional
advantage of allowing for reasoned debate and argumentation, which the
founders did not regard as likely to occur in referendums or elections.

This extra hurdle, placed in their own path, was absolutely necessary, for
the important reason that the framers were asking the states to engage in
an act that was itself unconstitutional under the terms of the Articles of
Confederation: amending the Articles by means of a method other than the
unanimous consent of all thirteen states. Therefore, under the theory of
Locke, they needed an appeal to "heaven" (or at least to the next best
thing to heaven, the people---Vox Populi, Vox Dei) in order to legitimize
their decision to engage in an act that falls somewhere between flouting
the Articles and actual rebellion against them.

The Ratification debate.
The states legislatures began to elect special deliberative conventions to
meet and decide on the approval or non-approval of the Constitutional
package. In some cases (eg. Massachusetts) the conventions consisted of
delegates who had been directly elected---sometimes with specific
instructions to vote for or against the package. In such states, the
virtues of a referendum were combined with the advantages of a deliberative
body.

The proceedings at these conventions ranged from the sublime to the
ridiculous. In Pennsylvania, for example, some anti-federalists realized
that if they could deprive the state assembly of a quorum, it would be
unable to select a convention prior to the end of session, thereby
depriving the new constitution of needed momentum. Therefore they left the
legislature and hid in a hotel. They were found and dragged, kicking and
screaming (literally) back to the legislature, where they were pinned down
inside the building and kept in forcible confinement until the election had
taken place.

In small states like Delaware that felt disadvantaged and helpless without
the protection of a strong central government, ratification was immediate
and almost pro forma. In Rhode Island, which had hoped to veto the whole
process, no ratification process at all was initiated.

However, the most dramatic and brilliant debates took place in the largest
states, where delegates understood that they had the power to make or break
the new constitution. It was understood by everybody that if any of the
three largest states (Virginia, Massachusetts or New York) were to reject
the constitution, it would not work in practice. As well, the most
brilliant minds were to a large extent concentrated in these states
(Hamilton in New York, Madison in Virginia, for example).

Thus the best discussion of the issues involved and the concerns of both
sides can be found by combing the detailed records (over 600 pages for
Virginia for example) of the ratifying conventions for each state, and the
pamphlets, letters and essays produced in newspapers or printed as
brochures in support of one position or another at the time of these key
ratifying conventions.

The arguments provided by the federalists are essentially to outline the
flaws of the existing constitutional arrangement (discussed in Lecture 2)
and to point out the technical improvements that had been made in the new
constitution. The best defenders of the new constitution at this level were
Madison, who spoke extensively at the Virginia ratifying convention, to
which he was a delegate, and Hamilton, who performed a similar role in New
York. Both men, and also John Jay, participated in writing (under the
pseudonym "Publius", the series of essays, published in New York papers,
called "The Federalist Papers."2

There was a sophisticated political science debate being discussed on both
sides, although much of the public rhetoric---as in any widely publicized
debate---was trite, or highly rhetorical. The essential anti-federalist
argument, from which most other arguments were derived, has been
paraphrased as follows:

     Large countries [of which the United States would be one]
     necessarily turn to despotism. For one thing, large countries
     need despotic rule simply in consequence of largeness; political
     authority in the parts breaks down without more forceful
     government than the republican form admits . . . . [E]ven if
     large countries try to be republican, they cannot succeed. To
     preserve [popular] rule, the people must be patriotic, vigilant
     and informed. This requires that the people give loving attention
     to public things, and that the affairs of the country be on a
     scale commensurate with popular understanding. But in large
     countries the people are baffled and rendered apathetic by the
     complexity of public affairs, and at last become absorbed in
     their own pursuits. Finally, even the alert citizenry of a large
     republic must allow a few men actually to conduct the public
     business; far removed from the localities and possessed of the
     means of coercion, the trusted representatives would inevitably
     subvert the republican rule to their own passions and interests.
     Such was the traditional and strongly held view of the necessity
     that republics be small. It followed that such small republics
     could only combine for limited purposes into confederacies which
     respect the primacy of member states. But its opponents regarded
     the Constitution not as a proper confederacy, but as "calculated
     ultimately to make the state one consolidated government," which
     is to say, one large republic; hence the Constitution was
     necessarily antirepublican.3

As a rule, "Publius" and other federalists argued specific technical points
in defence of the arrangement that they had chosen. They did this by
reference to historical precedents, drawing on the British Constitution,
the experiences (not always happy) of the Swiss confederation and of
historical precedents from the Roman republic, from ancient Greece, and
from the Italian states of the Renaissance. The point always was that they
had learned both from the good and bad experiences of these precedents, and
designed in accordance with what they had learned. Citations of a selection
of widely respected political philosophers were also used. In particular,
the French philosopher Montesquieu was held in universal admiration, but
also Locke, Grotius, and others.

In responding to the argument that has been paraphrased above, "Publius"
responded by arguing that it is only possible to build a stable republican
system in a society that is large enough to accommodate institutions that
will set ambition against ambition---that is, to divide power so that the
ambition of one class or faction within society will not only never grow
strong enough to dominate the entire society, but will actually serve as a
brake on the growth in power of other, equally dangerous factions. In this
way, a balance of power can survive, and with it, liberty.

The real danger in a small republic like one of the states is that the
"unmixed," or wholly democratic, nature of its political institutions will
allow the majority, who are mostly unpropertied farmers and mechanics, to
dominate it, thereby leading to a government that abuses the legitimate
rights of the merchants, bankers, and other entrepreneurs who have worked
hard to deserve their extra wealth and who, moreover, are vital to the
long-term prosperity of the entire population of the republic. A
"separation of powers" between the legislature, a powerful executive
branch, and an independent judiciary was the best way of checking the power
of the unfettered legislature, and preventing a tyranny of the majority.
This was supplemented by a further system of "checks and balances," under
which the various parties to the legislative process would have the ability
to cancel out each others' power on an ongoing basis (the involvement of
three participants---the Representatives, Senate and President---in the
legislative process is the key example).

Moreover, the small size of a state means that frequently the number of
interests that are jostling for control of the legislature will be small.
This is particularly true of the non-monied, non-propertied interests. In
such a situation, the dangers of a majoritarian tyranny are greatly
increased. By contrast, in a large republic, there are so many interests
that it is hard to develop an effective majoritarian tyranny, since a
coalition would be needed.

In the ratifying conventions, the anti-federalists frequently chose to use
scatter-gun tactics, playing on the fear of unknown institutions or using
apocalyptic descriptions of a future under the tyranny that this new
constitution would unleash. Patrick Henry, the great orator and leader of
the anti-federalists in the Virginia legislature, engaged in rather more of
this than would have done his side the greatest amount of good.

However, the best and most reasoned anti-federalists produced a series of
very reasonable specific arguments, which I list below. Most arguments
tended to be repeated in most jurisdictions, indicating that they were
widely felt and represented genuine shortcomings in the proposed
constitution.
1. State governments might be overwhelmed by the federal government.
2. The president had been assigned too much power, and so stood in the same
relationship to the people as the former king had done.
3. The convention had no authority to replace the Articles of Confederation
(this one is absolutely beyond dispute, the real question was whether such
overstepping of its assigned bounds was justified).
4. It was dangerous to give Congress the right to maintain a standing army
in time of peace.
5. The Congress had been assigned the power to tax, and in time this would
be abused.
6. The Supreme Court was too powerful, and might usurp the powers of the
states.
7. Annual elections (an innovation in many states following the revolution)
were being abandoned in favour of biennial elections. This would make
representatives less genuinely representative of their constituents.
8. The constitution was the work of a commercial and landed aristocracy
intent on preserving its own privileges and damaging the interests of
honest mechanics and poor farmers who were normally in debt and who needed
easy credit and inflation.
9. The protection of rights contained within the text of the constitution
was insufficient and needed to be supplemented by a Bill of Rights.

The Less Elevated Debate: Who Gets What?
In 1913, the great historian Charles Beard published a book in which he
argued that the real story of the design and ratification of the
Constitution had very little to do with the elevated debate over the nature
of a true and stable republic. Instead, the battle over ratification took
place along sectional and class lines. Those who owned large amounts of
property, who were creditors, or who made their money through speculation
and trade generally favoured the new Constitution. Those who were debtors
and small farmers opposed it. He maintained that the majority of citizens
fell into the latter group, but that the superior organization and
influence of the former ensured that the new Constitution would be
ratified.

An enormous amount of scholarship has been generated by this
interpretation, and it seems safe, ninety years later, to make the
following generalization: It is certainly true that much of the debate over
ratification took place based on interest-oriented, rather than purely
philosophical lines. And it is true that in broad outline, the interests
favouring and opposing the Constitution were similar to those highlighted
by Beard. But on the other hand, there was a good deal more crossover than
one might have anticipated. For example, rural New Jersey strongly
supported the new Constitution, as did much of the territory which in 1786
had supported Daniel Shays in his rebellion. This suggests that other
factors, such as the sense that the new Union would provide superior
defense and protection for trade, were important considerations for all
classes.

Nor were the poor and the uneducated duped by the wealthy and the
privileged. The detailed records which survive from the Massachusetts and
Virginia ratifying conventions make it clear that in both cases, all
delegates were perfectly capable of thinking and acting for themselves. In
the case of Massachusetts, the delegates often arrived at the convention
with strict instructions from the electors of their townships, as to how to
act.

Although many Federalists were suspicious of democracy and many
Anti-Federalists were more democratic in orientation, this wasn't a tidy
dividing line. In particular, there were a large number of Anti-Federalists
who were generally unenthusiastic about the prospects of too much
democracy.

All of which leads to the conclusion that no tidy and mutually reinforcing
set of cleavages divided the Federalists from the Anti-Federalists in
1787-1789.

The End Result.
Most scholars conclude that the Federalists won and the Anti-federalists
lost. I do not agree. What actually happened was far better. The
Constitution was duly ratified, but it was clear that some states would not
long remain in the union unless substantial changes were made. As a result,
Madison drafted and introduced a set of amendments to the constitution. Ten
of these were accepted by the necessary 3/4 of the states, and collectively
these ten amendments are known as the Bill of Rights.

In fact, it was not just rights (point 9 on the list of Anti-Federalist
concerns) that the Federalists had conceded on. They had also created a
residual clause (point 1 on the list above) to prevent the overwhelming of
the states by the federal government. And a further amendment was rushed
through in 1798 to limit the powers of the Supreme Court (point 6 on the
list above). This amendment (the XIth) reads as follows:

The judicial power of the United States shall not be construed to extend to
any suit in law or equity, commenced or prosecuted against one of the
United States by citizens of another State, or by citizens or subjects of
any foreign state.

I have my own opinions as to whether and to what extent the Federalists or
the Anti-federalists were "right" or "wrong", but I propose to leave this
until the seminars on this subject have been presented next weeks, so as
not to bias anybody's presentation.

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Related Readings:

Johnson, Paul. A History of the American People. London: Weidenfeld and
Nicolson, 1997, pp. 147-175.

Sources that students may wish to consult:
Aaron, Daniel, Richard Hofstadter, and William Miller, The United States.
Third edition. Englewood Cliffs, New Jersey: Prentice Hall, 1972. (pp.
148-159)
A solid, factual account of the period, and a good supplement to Johnson's
livelier but more opinionated version.

Adams, John. "Defence of the Constitutions of the United States of America"
(excerpts) in Russell Kirk, The Portable Conservative Reader.
Harmondsworth, England: Penguin, 1982, pp. 51-64.
This excerpt, from the preface to a long book written by Adams in response
to utopian criticisms of the American system, considers constitutions as
practical documents, rather than abstractions drawn from natural law. As
such, it is a classical conservative defence of the emerging American model
of constitutions. (A much longer excerpt may be found in Bernard Brown,
Great American Political Thinkers, vol. I, pp. 171-204.)

Beard, Charles A. An Economic Interpretation of the United States
Constitution. 1913.
Although this book is now nearly ninety years old, it contains the
enromously influential thesis that the Constitution was really a
counter-revolution of the propertied classes and creditors against those
without money, and debtors. Much twentieth-century discussion of the
Constitution revolves around defending or attacking this thesis.

Billington, Ray, Samuel Brockunier, and Bert Loewenberg (eds.), The Making
of American Democracy: Readings and Documents. Volume I. New York: Holt,
Rinehart and Winston. (Documents on pp. 97-117 only).
Original documents from the period, and also essays from the classic
historiography on the period.

Cline, Keith. "The American Republic," in M.A. Stephenson and Clive Turner
(eds.), Australia: Republic or Monarchy? St. Lucia, Queensland: Queensland
University Press, 1994, pp. 146-157.
A tidy summary of the mechanics of the United States constitution, intended
for an Australian audience.

Commager, Henry Steele (ed.) Documents of American History. Volume I: To
1898. New York: Appleton-Century-Crofts. (Documents 79-81 and 83-88 only;
in the Seventh Edition, these are found on pp. 124-150).
Original documents from the period.

Diamond, Martin. "The Federalist," in Leo Strauss and Joseph Cropsey
(eds.), History of Political Philosophy. Chicago: University of Chicago
Press, 1981, pp. 631-651.
Reviews the key messages of the most important essays in defence of the new
constitution.

Hamilton, Alexander. "The Continentalist" (excerpts) in Russell Kirk, The
Portable Conservative Reader. Harmondsworth, England: Penguin, 1982, pp.
71-78.
Written in the early days of the Confederation (1781), this essay places
the American constitution in the context of European experiences, and is a
first hint at the need for stronger central government, with a clear
separation of powers.

Smith, Page. The Constitution: A Documentary and Narrative History. New
York: Morrow, 1980. (The following section only: Chapter Eight, "The
Constitution and the States," pp. 235-264).
The two best-recorded state ratifying conventions, in which both federalist
and anti-federalist forces presented their competing viewpoints most
impressively, were held in Massachusetts and Virginia. This essay recounts
the debates.

Storing, Herbert (ed.), The Anti-Federalist.
A collection of some of the best writings from 1787-1789 in opposition to
the adoption of the new Constitution.

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Lecture References:

1. William and Mary were co-equal rulers, both of whom were monarchs at the
    same time. A two-person monarchy is known as a dyarchy. When Mary died,
    William became sole monarch for the rest of his life. All subsequent kings
    and Queens of England have been monarchs, not dyarchs.

2. Douglas Adair suggests the following breakdown in the authorship of the 85 essays:

Hamilton: 1, 6, 9, 11-13, 15-17, 21-36, 59-61, 65-85 (total: 51);

Madison: 10, 14, 18-20, 37-58, 62, 63 (total: 29);

Jay: 2-5, 64 (total: 5).

Adair's attribution is cited in Martin Diamond, "The Federalist," in Leo
Strauss and Joseph Cropsey (eds.), History of Political Philosophy.
Chicago: University of Chicago Press, 1981, p. 650.

3. Ibid., pp. 635-6.