CONSTITUTION I : Turning Colonies into States
The prevailing notion of the Constitutional Convention once depicted James Madison, seized with merging the former colonies into a nation, selling that concept to George Washington. The General, by this account, was known to be humiliated by the way the Continental Congress mistreated his troops with worthless pay. But recent scholarship emphasizes that many other patriots were disappointed with the government they had sacrificed to create. Madison had led protests within Congress itself. A generation younger than the General and not at all charismatic, Madison's political effectiveness first came before Washington's attention as a skillful leader of committees and legislatures. Washington was particularly upset by Shay's Rebellion in western Massachusetts, which actually threatened to topple the Massachusetts government, but Shay's frontier disorder was merely an extreme example of more general restlessness. There was a long background of repeated Indian rebellions in the southern region between Tennessee and Florida, coupled with uneasiness about what France and England were still planning to do to each other in North America. It looked to Washington as though the Articles of Confederation had left the new nation unable to maintain order along thousands of miles of western frontier. The British clearly seemed reluctant to give up their frontier forts as agreed by the Treaty of Paris, and very likely the British were both arming the Indians and agitating them. The innately rebellious Scotch-Irish, the main settlers of the frontier, were threatening to set up their own government if the American one was too feeble to defend them. The Indians for their part were coming to recognize that the former colonies were too weak to keep their promises. With our Army scattered and nursing its own grievances, the sacrifices of eight years of war looked to be in peril. Even Washington's loyal friends were getting out of hand. Not too much earlier, Alexander Hamilton and Robert Morris had cooked up the Newburgh cabal in the hope of provoking a military coup -- and a monarchy. It alarmed Washington that republican government itself was being discredited, leaving only a choice between a King and anarchy. Particularly when he reviewed the shabby behavior seemingly characteristic of state legislatures, something had to be done. Washington decided to set this right, using Madison as his right-hand man. Madison had been to college and could fill in some of the details; Washington only knew he wanted stable government and he did not, he did not, want a king.
Madison was young, vigorous and effective; he had the right perception about the Articles of Confederation as the source of the difficulty; and he was a reasonably close neighbor. After some protracted conversations at Mount Vernon, a plan was devised and put into action. Washington knew he wanted a stronger central government, strong enough to brush aside the quarreling state legislatures and stabilize the new nation, but not so strong as a monarchy or a military dictatorship. There were obviously many other things to be expected from a good central government, but it was not initially useful to pick quarrels about minor things. Madison had read a lot of books, knew about details. These two friendly schemers eventually convinced the country to go along. As things turned out, after a few years several of the issues set aside for later would indeed become seriously troublesome and eventually destroy the friendship between Washington and Madison. Worse still, in seventy years some even deeper issues would provoke a civil war. Even for a century after that, trouble continued to erupt, requiring periodic reconsideration of what powers needed to belong to the states, and what needed to migrate to the federal government.
For immediate purposes, the central problem for the Virginia collaborators was to persuade thirteen state legislatures to give up power for the common good. For this, it would be useful to follow the strategy of convening a Constitutional Convention of newly-selected but eminent delegates, rather than to follow the route of amending the Articles. The amendment approach would directly involve the legislatures in all the preliminary debates and compromises, thus likely failing to surrender enough state power to make a strong nation. The chosen approach was to assemble eminent leaders without political ambitions which would make them unwilling to consent to the loss of local power. Eventual ratification of the final result by the legislatures was unavoidable, but to seek their consent at the end of the process was far preferable. The divided and quarrelsome states would be positioned at a disadvantage in resisting a finished document which had already anticipated and negotiated the main objections, and was the handiwork of a blue-ribbon convention of prominent citizens and heroes. In modern parlance, that is known as framing the debate. In fact, although he had mainly initiated the movement, Washington refused to participate or endorse it publicly until he was confident the convention would be composed of the most prominent men of the nation. This venture had to be successful, or else he would save his prestige for something with more promise. Seeing to it that this was going to work was a task for Madison and Hamilton.
While many details were better left hazy, the broad outline of a new proposal had to appeal to almost everyone. Since the new Constitution was intended to shift power from the states to the national government, it was vital for voting power in the national legislature to reflect population districts of equal size, selected directly by popular elections. No appointments by state legislatures, please. However in the convention, it became evident that small states would fear being controlled by large ones through almost any arrangement, but on the other hand small states were particularly anxious to be defended by a strong national army and navy. England, France and Spain were stated to be the main fear, but small states feared big ones, too. Since the Constitutional convention itself voted as states, small states were already in the strongest voting position they could ever expect, and the Federalists at the convention needed their votes. Eventually, agreement was found for the bicameral compromise suggested by John Dickinson of Delaware, which consisted of a Senate selected and voting as states, and a House of Representatives elected in proportion to population, with all bills requiring the concurrence of both houses. From the perspective of two centuries later, we can retrospectively see that accidentally allowing state legislatures to redraw congressional districts gives them the power to "Gerrymander" election outcomes, and hence restores to the states some of the power Washington and Madison were trying to take away from them. In the 21st Century, New Jersey is an example of a number of states where it can fairly be said that the decennial redistricting of congressional borders accurately predicts the congressional elections for the next ten years. However, the historical irony emerges that Gerrymandering is impossible in the Senate, and hence legislative control over Senators has been weak ever since the 17th Amendment established senatorial election by popular vote. That's eventually the opposite of the result conceded by the Convention, but in accord with the almost certain wishes of the Federalists who dominated it.
This evolving arrangement of the national legislative bodies seemed an improvement over the system for state legislatures, because the Federalists believed corruption was automatically lessened by increasing the size of the legislative body. There were skeptics then as now, and something more was desired to weaken the potential tyranny of the majority always so evident at the state level and in the British parliament. To satisfy this anxiety, some power was redistributed to the executive and judicial branches of government, which were in turn intentionally selected differently. Here is the source of the Electoral College method for election of the President, giving greater weight to the votes of small states (and provoking a ruckus whenever the national popular vote is a close one), while according lifetime appointments to the Judiciary, following selection by the President with the concurrence of the Senate. Without anticipating its emergence, an unexpectedly large bureaucracy has thus come under the control of the executive branch without much of the republicanism so fervently sought by the founders. This may be in general harmony with the Federalist goal of removing patronage from legislature control, but appropriations committee chairmen have since found unofficial ways of asserting power over the bureaucracy. Only in the case of the Defense Department is the will of the constitutional convention made clear: the President is commander in chief, only Congress can declare war. Although this difficult process was meant to discourage wars, it had other features. From placing the command under an elected President, emerges a more explicit emphasis on civilian control of the military, further extended by legislative approval of initiating warfare. Unfortunately, there have been many more armed conflicts than "declarations" of war.
And that's about it for what we might call the first phase of the Constitution. There was a prevalent feeling that national laws should pre-empt state laws. In view of the need to get state legislatures to ratify the document however, this was withdrawn. Phase I of the Constitution was designed to take as much power away from the states as could be taken without provoking them into refusing to ratify it. Since ratification did barely squeak through after huge exertions by the Federalists, the Constitution must come very close to the tolerable limit, and cannot be criticized for going no further. Since no other voluntary federation has gone even this far in the subsequent two hundred years, the margin between what is workable and what is achievable must be very narrow.
The details of this government structure were spelled out in detail in Sections I through IV. However, just to be sure, Section VI sums it all up in trenchant prose:
This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding. The Senators and Representatives before mentioned, and the members of the several state legislatures, and all executive and judicial officers, both of the United States and of the several states, shall be bound by oath or affirmation, to support this Constitution; but no religious test shall ever be required as a qualification to any office or public trust under the United States.
Except for some housekeeping details, the Constitution ends here and can still be admired as sparse and concise. That final phrase about religious tests for office sounds like a strange afterthought, but in fact its position and lack of any possible ambiguity serve to remind the nation of grim experience that only religion has caused more problems than factionalism. There are no details; religion is not to have any part of government power or policy. By tradition, symbolism has not been prohibited. But government as an extension of religion is just as emphatically excluded, as is religion as an agent of government. Many failures of governments, past and present, can be traced to irresolution to summon up this degree of emphasis about a principle too absolute to need elaboration.
(1541)
