If Men Were Angels, No Government Would Be Necessary
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| President James Madison |
JAMES Madison, Washington's floor manager at the Constitutional Convention of 1787 in Philadelphia, stated the main reason for holding the Convention in one famous summary of human frailty. After fighting a war for freedom, it had become time to react against anarchy. A league of states would not work, as thirteen years of the Articles of Confederation had demonstrated. Even today, the dynamic explaining why Balkanization invariably is so destructive remains unclear; the related phenomenon of gerrymandering seems to have the same effect. Something to do with birds of a feather, perhaps. Working within that flawed arrangement, 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 several nations of Europe are today discovering, a debating society of independent states is no good; you must somehow achieve a sense of common citizenship, not focus loyalties within constituent states. Although the states were no good, and you had to say it out loud, in 1787 there remained the awkward problem of getting those same states to ratify a change dethroning themselves.
Two men applied even deeper thinking than that; Benjamin Franklin of Pennsylvania, and John Marshall of Virginia. Both of them had served in state legislatures, and both were 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. Certain problems seemed universal in legislative bodies. Although Marshall was not a member of the Virginia Constitutional delegation in 1787, he was active in the politics of the group it represented back home. Both Marshall and Franklin had good reason to be uneasy about universal misbehavior by representative bodies, whether 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 this observed behavior by enumerating limited powers and balancing power against other power. When he had pushed it as far as he could, he wearily agreed to give the product a try. Franklin did not trust Utopias, but he had lived among Quakers for years, the only Utopian society which seemed to endure without resorting to tyranny.
The Constitutional provisions in Article I, Section X became the heart of what the 1787 Convention wanted to change about the relationship of the national and state governments.
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."
This brief clause is almost a complete summary of what state legislatures were doing, which serious patriots regarded as wholly unacceptable. Failure of states to abide by the terms of international treaties must be included in such a summary, although the new Constitution went beyond the powers of Congress by locating treaties beyond the powers of Congress, once ratified. Some observers, in fact, feel that within the First Article clause, protecting the sanctity of contracts was really the nut of the matter for ongoing struggles. 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. As a footnote, the matter was to rise again but in the behavior of the Executive branch, in the 1937 Court Packing uproar, and in the 2009 monetary crisis. Some critics have discomfort that the heaviest emphasis was placed by the Founding Fathers on protecting private property. Are not other issues more important, they ask, like life, liberty, and the pursuit of happiness? The Founders, of course, were here not ranking benevolences by value; they were stating the principal urgency for convening the meeting. In a strange unintended way, however, they here stumbled without knowing it on the right to property as the foundation for all other rights. But John Marshall understood it, and was to spend thirty years hammering it into place.
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