If Men Were Angels, No Government Would Be Necessary
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| President James Madison |
James Madison, the main force behind the Constitutional Convention of 1787 in Philadelphia, stated the main reason for holding the Convention in one famous summary of human frailty. Having fought an eight-year war for freedom, it had become time to protect against anarchy. A league of states would not work, as thirteen years of the Articles of Confederation had demonstrated. Working with that concept, the States had refused to pay their share of expenses, abused their ability to deal independently with foreigners, dealt unfairly with their neighbors, and capriciously mistreated their own citizens. Just as the nations of Europe are today discovering, a debating society of independent states was no good; you had to have a nation of citizens, not a nation of states. States were no good, and you had to say it out loud, within the limits of getting them to ratify a change.
Two men applied much deeper thinking than that; Benjamin Franklin of Pennsylvania, and John Marshall of Virginia. Both of them had served in their state legislatures, and both were intensely dismayed by the experience. Franklin also had a long period of close-up observation of the British Parliament, suffered personal abuse there, and had ample reason to reflect on the earlier abuses by that Parliament under Cromwell which had so much to do with the English Civil War. Although Marshall was not a member of the Virginia delegation in 1787, he was active in the politics of the group it represented back home. Both Marshall and Franklin had very good reason to be uneasy about the universal misbehavior by representative bodies, whether they were called legislatures, congresses, or parliaments. When people said states misbehaved under the Confederation arrangement, they really meant legislatures misbehaved. Franklin did what he could within the Convention to curb human behavior by enumerating limited powers and balancing the powerful against each other. When he had pushed it as far as he could, he wearily agreed to give the product a try.
The Constitutional provisions which became the heart of what the 1787 Convention wanted to change about the relationship of the national and state governments was in Article I, Section X.
States are forbidden to ...
"emit bills of credit, make anything but gold or silver a legal tender in payment of debts, pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts."
Some observers, in fact, feel that last clause, protecting the sanctity of contracts was really the nut of the matter. The great bulk of the nation's business was to be conducted as private agreements between two contracting citizens. The State -- and the states -- were to stay out of it, except as referee, to see that both sides kept their agreements.
Marshall had one advantage over Franklin -- youth. Seeing what was needed, and subsequently noticing that the first three Chief Justices had failed to supply it, he accepted John Adams' appointment to be Chief Justice immediately, and devoted his remarkable legal mind to a lifetime of strengthening the role of the Supreme Court as the Federalists had intended, and as the Jeffersonian party had attacked. Marshall promptly found ways to confer on the Court the ability to review and prevent unconstitutional behavior by the Presidents and Congress, the the other two of the three co-equal branches of the national government. But his main task, never completely successful, was to devise hammerlocks for those intransigent state legislatures. Marshall had enemies who were allied with the legislatures, especially Presidents Jefferson, Madison (!) and Jackson, who would gladly have cut his political throat.
Although Marshall always seemed to win his battles, he did have to exercise caution in the face of Andrew Jackson's ruthless willingness to fight dirty. But probably, in his own view, he could be said to have lost the whole war, if his life's goals could be stated as trying to prevent the country from disintegrating into a civil war by learning to play by fair rules. Lincoln gets credit for saving "The Union" ( that is, national government under the 1787 Constitution), but at the price of 600,000 casualties. Only if you add a further century to the review, can Marshall (and the 1787 Constitution) be viewed as a success.
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