Constitutional Government
The Northwest Ordinance | The Road to Philadelphia
The founding fathers believed that their efforts were guided by Providence, not in the sense of an intervening supernatural god, so much as by the natural good fortune that aids worthy causes. Evidence for that belief can be seen in a fact that once the Treaty of Paris had been signed, the nations of Europe busied themselves with their own affairs and paid little attention to the fledgling nation. That was a good thing, for under the Articles of Confederation, the thirteen states, still considering themselves sovereign entities, had scant means of defending themselves, raising funds for common needs or maintaining good order and discipline in and between the thirteen jurisdictions. The brief trial and error period, which lasted six years until the Constitution went into effect in 1789, were enough to get the country situated on a firm constitutional foundation. Had the process overlapped with the early years of the French Revolution, which soon degenerated into terrorism and despotism, the experiment in democracy, which failed in France, might have seemed far less attractive to the Americans. In other words, had we delayed the process of creating the Constitution, the our political history might have taken a very different, possibly les fortunate, course.
One thing that America did have plenty of was land, though the use of it would bring continuing troubles with Indians until late in the 19th century. During the American Revolution, the Americans resolved not to treat their territories as colonies. Following the war, Congress sold millions of acres of land to large companies, but those companies had trouble attracting settlers. Congress therefore realized that some form of control was necessary in the territories that were not yet states.
At the end of the war, several of the states claimed extensive territories west of their own boundaries, but by 1786 all the western territories had been turned over to the federal government. The Confederation Congress soon decided that the western territories were not to be treated as colonies with the sorts of abuses that the British had imposed upon the original Americans, and a careful policy was worked out.
In 1784 Jefferson drafted an ordinance providing that when the population of a territory reached that of the smallest state, that territory would be eligible for statehood. The Land Ordinance of 1785 provided for a layout of townships of 36 square miles, 6 miles on a side with a north and south orientation, divided into one-square-mile lots of 640 acres, to be sold at $1 per acre. One section was set aside to be sold for income supporting public schools (the first national education law written anywhere), which reflected Jefferson’s commitment to public education as essential to democracy. The Ohio and Scioto land companies were formed; Marietta, Ohio, was established as the first town in the new territory. (Marietta remains proud of that distinction to this day.)
In 1787 the territory northwest of the Ohio River, which eventually came to comprise the states of Ohio, Indiana, Illinois, Michigan, and Wisconsin, was designated the Northwest Territory, and the Northwest Ordinance of 1787 carefully outlined the process through which the territories would become states. Each territory was to have a governor, a secretary, and three judges, all chosen by Congress. When any territory’s population reached five thousand, the male adults there would have the right to elect an assembly.
Once the population reached sixty thousand, the territory could call a convention to draft a constitution and apply for statehood. In addition, the Ordinance provided for a Bill of Rights that guaranteed freedom of religion, proportional representation trial by jury, and other rights; and slavery was permanently excluded from the territory. Needless to say, if the provisions of the Northwest Ordinance had been applied to the remaining territories, many of which were soon to become states, the extension of slavery and thus the entire future of the American nation would have been considerably different.
The essential point about the Northwest Ordinance is that America did not see its territories as part of an empire, but rather as territory that would join the original thirteen states on an absolutely equal footing, with the same privileges, rights, and responsibilities. The Northwest Ordinance has been considered significant enough that some historians have said that its philosophy of equality of territories and new states is part of our constitutional heritage. Along with the Declaration of Independence, the Northwest Ordinance is seen as one of the highest achievements of the Confederation era. The principle behind the Northwest Ordinance was carried into the Constitution in Article IV, Section 4, which states: “The United States shall guarantee to every State in this Union a Republican Form of Government.”
Making a New Government: The Road to Philadelphia
By 1785 it was beginning to become apparent that the government of the Articles of Confederation was making it difficult to resolve issues among the states. In order to deal with waterways that formed state boundaries, including the Potomac River and Chesapeake Bay, a conference was called at Mount Vernon where James Madison, George Mason, and others discussed commercial issues. An outcome of the meeting hosted by Washington was that the Virginia legislature invited all the states to attend a meeting in Annapolis in 1786.
The Annapolis convention met even as the Confederation Congress was attempting to reorganize itself. For various reasons, including difficulty of long-distance transportation, the Annapolis convention was only lightly attended. The convention, however, accepted a proposal drafted by Alexander Hamilton to request all the states to meet in a convention in Philadelphia in May 1787, “to render the Constitution of the Federal Government adequate to the exigencies of the Union.” Congress finally endorsed the plan in February 1787 and called for a convention “for the sole and express purpose of revising the Articles of Confederation.”
Shays’s Rebellion. In August of 1786 a violent protest erupted in Massachusetts over economic hardships that had resulted in foreclosures of homes and farms. The Depression had sent crop prices down, making matters even worse. Leader of the rebellion was Daniel Shays, a farmer who had been a captain during the Revolutionary War. In January 1787 Shays marched his insurgents to Springfield, threatening the federal arsenal there. They took the arsenal and threatened to assault the Massachusetts Legislature. Americans from George Washington to Abigail Adams were horrified by the prospect; Washington declared at liberty gone mad, and the situation reminded many that mob rule was sometimes seen as a natural outgrowth of too much democracy. Thomas Jefferson was less bothered by the uprising, complaining that a little violence was necessary for the good health of liberty, but it was obvious that the federal government could not respond to the needs of the people. State militia backed by federal forces eventually drove off the Shaysites, but the uprising underscored the weaknesses of the Confederation government and the inadequacy of the American interstate commercial structure. In the end, Shays’s rebellion furthered the cause of those who wanted a radical revision of the Articles of Confederation.
All those troublesome events of the post-revolutionary war period pointed up weaknesses in the American government and showed the need to Revise the Articles of Confederation. Meanwhile other reforms were emerging from the fire of rebellion, such as religious freedom—the separation of church and state. Tax support for churches was abandoned in most states, and Jefferson's Statute of Religious Freedom in Virginia set an important example. In the Northern states of Massachusetts and New Hampshire the Congregational Church still got some tax money. Despite their newly found liberalism, most Americans were nevertheless intolerant of views that were strongly anti-Christian.
THE CONSTITUTION: “THE REPUBLICAN EXPERIMENT”
“Scene at the Signing of the Constitution of the United States” by Howard Chandler Christy
—Library of Congress
The writing and adoption of the Federal Constitution was a vital second step in making the American Revolution and republican experiment a permanent success. It is clear that if the nation of thirteen states could not operate effectively with a weak central government, a nation of thirty, forty, or fifty states would never have become possible.
For Alexander Hamilton, James Madison, and other far-thinking political leaders, attempts to amend the Articles of Confederation would only be, to use a modern analogy, rearranging deck chairs on the Titanic. If the nation were to survive and prosper, the Articles would have to go.
James Madison’s Role. For those who have had the pleasure of visiting James Madison’s home, Montpelier, in Orange, Virginia, they have probably approached that property on a highway known as the Constitution Route. Madison, they soon discover, is known as the father of our Constitution, and the title is more than fitting. No one worked harder than James Madison to achieve the new form of government that he felt was vital for the success of the American nation.
Educated at the College of New Jersey, later Princeton University, Madison was well-versed in matters legal and political. His preparation for the convention in Philadelphia was prodigious. Knowing that as a slight and frail man, he would not make an imposing figure on the eighth floor, he put together a plan known as the Virginia Plan and then had it introduced by the more charismatic and well-known governor of Virginia, Edmund Randolph.
As the delegates gathered in Philadelphia, they knew that the task ahead of them was daunting, but they were a group of exceptionally capable men—Jefferson (who was ambassador to France and thus absent from the convention) referred to them as “demigods.” Many of the delegates knew each other from having served together in the Congress, and many of them had been actively involved in writing their own state constitutions. They were a well-versed in political matters and were cognizant of historic examples going all the way back to the Roman Republic.
Washington Presides. Their first task was to select a president, and the choice was obvious: Once again George Washington would lead the vital enterprise. Although Washington participated not at all in the debates, his presence in the chair was essential during the long hot summer. The dignity with which he held himself, and the knowledge among the delegates of the sacrifices he had made to achieve liberty, made his position as president one of the highest importance.
(For a wonderful, readable account of the Constitutional Convention, see Catherine Drinker Bowen’s classic Miracle at Philadelphia.)
The Constitutional Convention organized itself in such a way as to maximize the possibility of success. First, they agreed that all of their deliberations would be secret, fearing that if news of their proposed document were to leak out, false impressions might be created that would jeopardize eventual ratification. Second, they organized themselves into a committee of the whole so they could openly discuss various proposals and then recommend them for adoption by the formal convention. Although that move may sound frivolous, it had a serious point: After a day of heated debate, the committee might adopt a resolution for presentation to the convention—the very same members—on the following day. With the intervening time for reflection, the convention would have the opportunity to take a fresh look at what had been proposed.
When a quorum of states was finally achieved late in May, Randolph introduced the Virginia Plan, which went beyond revision of the Articles of Confederation and outlined a completely new national government. The plan called for a bicameral legislature, a separate executive, and a separate judicial department. At that point the convention dissolved itself into a committee of the whole, and the debating began.
In June the smaller states, led by New Jersey, proposed an alternative plan. The issue was representation in the national Congress: the larger states feared that the small states might gang up on them and, in effect, nibble them to death; the small states, on the other hand, feared that the larger states might run roughshod over their interests. The solution was known as the “Connecticut compromise.” The smaller states would be represented proportionately by population in the lower house, and the states would be represented equally in the upper house. Approval by a majority of both houses would be necessary before any bill could become a law.
The Executive Branch. The creation of an executive brought the decision to have an elected office of president. Although not as difficult to resolve as the issue of representation in Congress, the role and powers of the chief executive were still a matter of concern. The idea of creating a monarchy was never seriously considered, as it was inconsistent with the concept of republicanism, though George Washington would’ve been an acceptable figure as a monarch. But Washington had no male descendants, and the idea of a hereditary monarchy was out of the question in any case.
In the end, the president was given substantial power: He was the commander in chief of the armed forces; he had the power to make treaties, with the advice and consent of the Senate; he could veto congressional legislation, though it could be overridden by a two-thirds vote in both houses; he had the power to grant pardons; he would appoint ambassadors, ministers, justices of the Supreme Court and other judges and heads of government departments (cabinet officers); and he had the responsibility to ensure that the laws of the United States were faithfully executed.
In some respects the president had more power than King George III had held. Partly for that reason, the president was not to be elected directly by the people, but by an electoral college, the makeup of which was left to the states. For the first few decades of American history, for all practical purposes the president was elected by the state legislatures. It was not until the time of Andrew Jackson that presidents began to be elected by the people, still indirectly through the Electoral College.
The Courts. Article III, Section 1 of the Constitution, states:
The judicial Power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services a Compensation, which shall not be diminished during their Continuance in Office.
The rest of the structure of the court system is left up to Congress. For historical reasons courts were not particularly popular in that era. English courts were seen as places where the king’s prerogatives were executed rather than a place where the rights of the people were defended. Thus many Americans were in no mood to see courts created with large powers. It would not be until the tenure of Chief Justice John Marshall that the Court began to attain its proper place as a third and coequal branch of government.
Every American should read the United States Constitution at least once and probably more often. Students are often surprised in what they find there, and are often equally surprised by what they do not find. Following the articles creating the three branches of government, the Constitution does cover other important details, such as the fact that the laws of the various states should be recognized by other states, and that every state is required to have a republican, that is representative, form of government.
Making Laws. The Constitution goes into considerable detail on the subject of making laws. Both houses of Congress—the Senate and the House of Representatives—must agree on the exact wording of a bill before it goes to the president for his signature. Once the bill leaves the Congress, it will either become a law or not; it cannot be altered in any way during any part of the process once passed by both houses and sent to the president. The president can refuse to sign a bill and return it to Congress with his objections. Congress may consider the president’s objections before it votes again on the bill, but it cannot make any changes. With a two-thirds vote in both houses, the bill becomes law without the president’s signature. The president can also block legislation by refusing to sign it within the designated period of ten days; this is known as a pocket veto and has historically been somewhat rare.
Slavery. There can be no doubt that the man in Philadelphia knew that the issue of slavery was a serious one and in many ways inconsistent with the principles expressed by Thomas Jefferson in the Great Declaration. No less a figure than George Mason, himself a slave owner and author of the Virginia Bill of Rights, foresaw the dangers of slavery. On August 22, 1787, during debate over the issue of slavery, as recorded by James Madison, Mason said:
This infernal traffic originated in the avarice of British Merchants. . . . Every master of slaves is born a petty tyrant. They bring the judgment of heaven on a Country. As nations can not be rewarded or punished in the next world they must be in this. By an inevitable chain of causes & effects providence punishes national sins, by national calamities. He lamented that some of our Eastern brethren had from a lust of gain embarked in this nefarious traffic. As to the States being in possession of the Right to import, this was the case with many other rights, now to be properly given up. He held it essential in every point of view that the General Government should have power to prevent the increase of slavery.
Although we do not know exactly what Mason meant by national calamity, civil war would certainly fit the definition. Many historians and civil rights advocates have bemoaned the fact that the Constitutional convention did not deal with the issue of slavery. But as we shall see below, the process of getting the Constitution signed and ratified was a huge challenge, and trying to deal with slavery in the bargain would almost certainly have been doomed to failure. Still, it must be said that failure to deal with the issue and recognizing it in the Constitution de facto, though the word “slavery” does not appear in the document, was bound to make it much more difficult to deal with in the future.
The Constitution did recognize slavery in the language of “persons bound to a term of service.” It made provisions for the return of fugitives from slavery, and it adopted the three-fifth compromise—the counting of three-fifths of the slave population in the states for representation in the House of Representatives—as a means of pacifying the South. Furthermore, any interference with the slave trade was not permitted under the constitution until 1808.
The best that can be said about the issue of slavery in the Constitution is that the creation of a republican form of government made possible the eventual abolition of slavery, but ridding the nation of that “peculiar institution” would be a long, painful, and bloody process.
Amendments. With few exceptions, anything in the Constitution is subject to amendment. Article V of the Constitution outlines the process by which this can happen. Whether initiated by both houses of Congress or by the state legislatures, any amendment must still be ratified by the legislatures of three-quarters of the states. It is rather remarkable that in more than two hundred years the Constitution has been amended only twenty-seven times. Ten of those amendments are what we call the Bill of Rights, and two of them cancel each other out (Prohibition and repeal.) The most important amendments were those that ended slavery, created United States citizenship, gave women the right to vote, and changed the method by which senators were elected. Interestingly, the basic structure and functioning of government has not been modified at all since 1789.
Ratification. We Americans tend to take our Constitution for granted, assuming in retrospect that “of course it was adopted—why wouldn’t it have been?” The fact is that the Constitution came perilously close to not being ratified at all. Why? For one thing, the Constitution granted more power to the national government than King George had ever wielded over the colonies. There were other reasons.
First, the Constitutional Convention violated its charge from the Confederation Congress by writing a new constitution instead of amending the Articles. But the Congress wisely decided to pass the document along to the states without otherwise interfering; the signatures of George Washington, Benjamin Franklin, James Madison, and others on the document could not be ignored.
Second, many feared the absence of a Bill of Rights. The convention, with minor exceptions, had not addressed individual rights, feeling that the state constitutions would protect individual rights adequately. But Americans were used to seeing things in writing and wanted those rights assured; thus one of the first major actions of Congress was to add a Bill of Rights, a condition that was attached to many of the state ratification votes.
The most serious arguments against the Constitution were those expressed by Patrick Henry in the Virginia ratifying convention, Samuel Adams in the Massachusetts convention, and others. The first thing that caught the objectors’ eyes were the first words of the preamble: We the People. As Patrick Henry expressed it, where did those gentlemen in Philadelphia get the idea of we the people instead of we the states? Many people wanted a federation not a national government, and the differences in those days were large.
The Articles of Confederation had created a union of sovereign states, which might legitimately have been called the United Nations of North America. Although the state still retained many powers under the constitution, a direct link had been created between the people and the national government, which some saw as a threat.
Neither did Patrick Henry look with favor upon the office of president. “It squints toward monarchy,” he said. The American people had just overthrown one tyrant and they did not want another in his place.
Those who supported the Constitution—James Madison, Alexander Hamilton, George Washington, Benjamin Franklin, John Marshall, and eventually even George Mason (the most famous non-signer in Philadelphia)—were known as Federalists. Those who opposed were known as the anti-federalists. They became the second major opposing political groupings in the United States, the first having been Patriots and Loyalists during the Revolution.
Because all of the New York delegation had left the Philadelphia convention except Alexander Hamilton, considerable fear existed that the state might not ratify, and given its key position between New England and the rest of the states its vote was considered critical. Alexander Hamilton, James Madison, and John Jay therefore penned a series of articles directed at the people of New York known as the Federalist Papers—eighty-five essays defending the Constitution and explaining the essentials of republican government as eloquently as has ever been done
In the end it was a serious fight, and the outcome was very, very close. If less than 5 percent of all the votes cast in the state conventions had changed, the Constitution would not have been ratified. The votes in several keys states were extremely close.
Even after the Constitution was adopted, it was uncertain exactly how it would be interpreted and followed. In 1798, in response to the Sedition Act of that year, Kentucky passed a resolution stating in part “that the several States composing the United States of America, are not united on the principle of unlimited submission to their general government . . .” As it had been during the debates over ratification, states’ rights was an issue and would remain so until well after the Civil War.
Despite all the issues surrounding its creation, the U.S. Constitution can still be considered one of the most remarkable documents ever penned by man. It was the first government in history created essentially out of whole cloth, and it served as a model for other nations seeking to find a successful way of governing themselves. Although certain provisions of the Constitution have been interpreted in various and sometimes conflicting ways, its essential nature has remained intact.
SUMMARY:
Revolution Home | Updated May 18, 2010
