Chapter 7 Founding a Nation, 1783–1789 PDF

C HAPTER 7 1772 Somerset case 1777 Articles of Confederation drafted 1781 Articles of Confederation ratified 1782 Letters from an American Farmer 1784– Land Ordinances approved 1785 1785 Jefferson’s Notes on the State of Virginia 1786– Shays’s Rebellion 17...

C HAPTER 7 1772 Somerset case 1777 Articles of Confederation drafted 1781 Articles of Confederation ratified 1782 Letters from an American Farmer 1784– Land Ordinances approved 1785 1785 Jefferson’s Notes on the State of Virginia 1786– Shays’s Rebellion 1787 1787 Northwest Ordinance of 1787 Constitutional Convention convened 1788 The Federalist Constitution ratified 1790 Naturalization Act 1791 Bill of Rights ratified Little Turtle defeats Arthur St. Clair’s forces 1794 Little Turtle defeated at Battle of Fallen Timbers 1795 Treaty of Greenville 1808 Congress prohibits the slave trade Founding a Nation, 1783–1789 AMERICA UNDER THE Slavery in the Constitution CONFEDERATION The Final Document The Articles of Confederation Congress and the West THE RATIFICATION DEBATE Settlers and the West AND THE ORIGIN OF THE The Land Ordinances BILL OF RIGHTS The Confederation’s The Federalist Weaknesses “Extend the Sphere” Shays’s Rebellion The Anti-Federalists Nationalists of the 1780s The Bill of Rights A NEW CONSTITUTION “WE THE PEOPLE” The Structure of Government National Identity The Limits of Democracy Indians in the New Nation The Division and Separation Blacks and the Republic of Powers Jefferson, Slavery, and Race The Debate over Slavery Principles of Freedom In this late eighteenth-century engraving, Americans celebrate the signing of the Constitution beneath a temple of liberty.  F OCUS Q UESTIONS ©lD uring June and July of 1788, civic leaders in cities up and down the Atlantic coast organized colorful pageants to celebrate the ratification of the United States Constitution. For one day, Benjamin Rush commented of Philadelphia’s parade, social class “forgot its What were the achieve- ments and problems of claims,” as thousands of marchers—rich and poor, businessman and the Confederation apprentice—joined in a common public ceremony. New York’s government? Grand Federal Procession was led by farmers, followed by the members of every craft in the city from butchers and coopers (makers of wooden What major disagree- barrels) to bricklayers, blacksmiths, and printers. Lawyers, merchants, and ments and compromises clergymen brought up the rear. The parades testified to the strong popular molded the final content of support for the Constitution in the nation’s cities. And the prominent role the Constitution? of skilled artisans reflected how the Revolution had secured their place in How did Anti-Federalist the American public sphere. Elaborate banners and floats gave voice to concerns raised during the the hopes inspired by the new structure of government. “May commerce ratification process lead to flourish and industry be rewarded,” declared Philadelphia’s mariners and the creation of the Bill of shipbuilders. Rights? Throughout the era of the Revolution, Americans spoke of their nation How did the definition of as a “rising empire,” destined to populate and control the entire North citizenship in the new American continent. While Europe’s empires were governed by force, republic exclude Native America’s would be different. In Jefferson’s phrase, it would be “an empire Americans and African- of liberty,” bound together by a common devotion to the principles of the Americans? Declaration of Independence. Already, the United States exceeded in size Great Britain, Spain, and France combined. As a new nation, it possessed many advantages, including physical isolation from the Old World (a significant asset between 1789 and 1815, when European powers were almost constantly at war), a youthful population certain to grow much larger, and a broad distribution of property ownership and literacy among white citizens. On the other hand, while Americans dreamed of economic prosperity and continental empire, the nation’s prospects at the time of independence were not entirely promising. Control of its vast territory was by no means secure. Nearly all of the 3.9 million Americans recorded in the first national census of 1790 lived near the Atlantic coast. Large areas west of the Appalachian Mountains remained in Indian hands. The British retained military posts on American territory near the Great Lakes, and there were fears that Spain might close the port of New Orleans to American commerce on the Mississippi River. Away from navigable waterways, communication and transportation were primitive. The country was overwhelmingly rural—fewer than one American in thirty lived in a place with 8,000 inhabitants or more. The population consisted of numerous ethnic and religious groups and some 700,000 slaves, making unity difficult to achieve. No republican government had ever been established over so vast a territory or with so What were the achievements and problems of the Confederation government? 259 diverse a population. Local loyalties outweighed national patriotism. “We have no Americans in America,” commented John Adams. It would take time for consciousness of a common nationality to sink deep roots. Today, with the United States the most powerful country on earth, it is difficult to recall that in 1783 the future seemed precarious indeed for the fragile nation seeking to make its way in a world of hostile great powers. Profound questions needed to be answered. What course of development should the United States follow? How could the competing claims of local self-government, sectional interests, and national authority be balanced? Who should be considered full-fledged members of the American people, entitled to the blessings of liberty? These issues became the focus of heat- ed debate as the first generation of Americans sought to consolidate their new republic. A M E R I C A U N D E R T H E C O N F E D E R AT I O N THE ARTICLES OF CONFEDERATION The first written constitution of the United States was the Articles of Confederation, drafted by Congress in 1777 and ratified by the states four years later. The Articles sought to balance the need for national coordina- tion of the War of Independence with widespread fear that centralized political power posed a danger to liberty. It explicitly declared the new national government to be a “perpetual union.” But it resembled less a blue- print for a common government than a treaty for mutual defense—in its own words, a “firm league of friendship” among the states. Under the Articles, the thirteen states retained their individual “sovereignty, freedom, and independence.” The national government consisted of a one-house Congress, in which each state, no matter how large or populous, cast a single vote. There was no president to enforce the laws and no judiciary to inter- pret them. Major decisions required the approval of nine states rather than a simple majority. The only powers specifically granted to the national government by the Articles of Confederation were those essential to the struggle for independence—declaring war, conducting foreign affairs, and making treaties with other governments. Congress had no real financial resources. It could coin money but lacked the power to levy taxes or regulate com- merce. Its revenue came mainly from contributions by the individual states. To amend the Articles required the unanimous consent of the states, a formidable obstacle to change. Various amendments to strengthen the national government were proposed during the seven years (1781–1788) when the Articles of Confederation were in effect, but none received the approval of all the states. 260 C H. 7 Founding a Nation, 1783 –1789 AMERICA UNDER THE CONFEDERATION WESTERN LANDS, 1782–1802 BRITISH CANADA R. ce Lak e Supe en rio wr r MAINE a (part of Massachusetts) St. L Lake L VERMONT ss i Michigan (1791) M ak ssi i p NEW eH pi Ceded by VIRGINIA, 1784 R. o NEW YORK HAMPSHIRE u ro n Ont a r i Lake Hudson R. Ceded by MASSACHUSETTS Ceded by MASSACHUSETTS, 1785 MASSACHUSETTS, and VIRGINIA, 1784 1786 rie Ceded by RHODE ISLAND eE Ceded by CONNECTICUT, 1786 Lak CONNECTICUT, CONNECTICUT and VIRGINIA, 1784 1782 Ceded by PENNSYLVANIA NEW CONNECTICUT, 1800 JERSEY MARYLAND DELAWARE Ceded by VIRGINIA, 1784 Ohio R. VIRGINIA SPANISH Ceded by LOUISIANA VIRGINIA, 1792 Ceded by NORTH SOUTH CAROLINA, Ceded by NORTH CAROLINA, CAROLINA 1787 1790 SOUTH CAROLINA A t l a nt i c Ceded by GEORGIA, 1802 O c ea n GEORGIA Ceded by SPAIN, 1795 Ceded by GEORGIA, 1802 SPANISH FLORIDA States after land cessions Ceded territory Gulf of Mexico Territory ceded by New York, 1782 0 100 200 miles 0 100 200 kilometers The creation of a nationally controlled public domain from western land ceded by the states was one of the main achievements of the federal government under the Articles of Confederation. What were the achievements and problems of the Confederation government? 261 The Articles made energetic national government impossible. But Con- gress in the 1780s did not lack for accomplishments. The most important was establishing national control over land to the west of the thirteen states and devising rules for its settlement. Disputes over access to west- ern land almost prevented ratification of the Articles in the first place. Citing their original royal charters, which granted territory running all the way to the “South Sea” (the Pacific Ocean), states like Virginia, the Carolinas, and Connecticut claimed immense tracts of western land. Land speculators, politicians, and prospective settlers from states with clearly defined boundaries insisted that such land must belong to the nation at large. Only after the land-rich states, in the interest of national unity, ceded their western claims to the central government did the Articles win ratification. CONGRESS AND THE WEST Establishing rules for the settlement of this national domain—the area controlled by the federal government, stretching from the western bound- aries of existing states to the Mississippi River—was by no means easy. Although some Americans spoke of it as if it were empty, some 100,000 Indians in fact inhabited the region. In the immediate aftermath of inde- pendence, Congress took the position that by aiding the British, Indians had forfeited the right to their lands. Little distinction was made among tribes that had sided with the enemy, those that had aided the patriots, and those in the interior that had played no part in the war at all. At peace con- ferences at Fort Stanwix, New York, in 1784 and Fort McIntosh near Pittsburgh the following year, American representatives demanded and received large surrenders of Indian land north of the Ohio River. Similar treaties soon followed with the Cherokee, Choctaw, and Chickasaw tribes in the South, although here Congress guaranteed the permanency of the Indians’ remaining, much-reduced holdings. The treaties secured national control of a large part of the country’s western territory. When it came to disposing of western land and regulating its settlement, the Confederation government faced conflicting pressures. Many leaders believed that the economic health of the new republic required that farm- ers have access to land in the West. But they also saw land sales as a poten- tial source of revenue and worried that unregulated settlement would pro- duce endless conflicts with the Indians. Land companies, which lobbied Congress vigorously, hoped to profit by purchasing real estate and reselling it to settlers. The government, they insisted, should step aside and allow private groups to take control of the West’s economic development. SETTLERS AND THE WEST The arrival of peace meanwhile triggered a large population movement from settled parts of the original states into frontier areas like upstate New York and across the Appalachian Mountains into Kentucky and Tennessee. To settlers, the right to take possession of western lands and use them as they saw fit was an essential element of American freedom. When a group of Ohioans petitioned Congress in 1785, assailing landlords and speculators 262 C H. 7 Founding a Nation, 1783 –1789 AMERICA UNDER THE CONFEDERATION An engraving from The Farmer’s and Mechanics Almanac shows farm families moving west along a primitive road. who monopolized available acreage and asking that preference in land ownership be given to “actual settlements,” their motto was “Grant us Liberty.” Indeed, settlers paid no heed to Indian land titles and urged the government to set a low price on public land or give it away. They frequent- ly occupied land to which they had no legal title. By the 1790s, Kentucky courts were filled with lawsuits over land claims, and many settlers lost land they thought they owned. Eventually, disputes over land forced many early settlers (including the parents of Abraham Lincoln) to leave Kentucky for opportunities in other states. At the same time, however, like British colonial officials before them, many leaders of the new nation feared that an unregulated flow of popula- tion across the Appalachian Mountains would provoke constant warfare with Indians. Moreover, they viewed frontier settlers as disorderly and lacking in proper respect for authority—“our debtors, loose English people, our German servants, and slaves,” Benjamin Franklin had once called them. Establishing law and order in the West and strict rules for the occupation of land there seemed essential to attracting a better class of settlers to the West and avoiding discord between the settled and frontier parts of the new nation. THE LAND ORDINANCES A series of measures approved by Congress during the 1780s defined the terms by which western land would be marketed and settled. Drafted by Thomas Jefferson, the Ordinance of 1784 established stages of self-government for the West. The region would be divided into districts initially governed by Congress and eventually admitted to the Union as member states. By a single vote, Congress rejected a clause that would have prohibited slavery What were the achievements and problems of the Confederation government? 263 WESTERN ORDINANCES, 1785–1787 BRITISH NORTH AMERICA (CANADA) R. Lake Superior ce en MAINE wr (part of Massachusetts) La St. Fort Dutchman's Michilimackinac Point- Point L au-Fer ak WISCONSIN NEW eH Mi (1848) igan s si HAMPSHIRE u ro n s io ke Ontar Oswego Lake Mich La sip p Hudson R. i R. MICHIGAN Fort NEW YORK MASSACHUSETTS Niagara (1837) Fort ie SPANISH Detroit Er RHODE ISLAND ke LOUISIANA La CONNECTICUT PENNSYLVANIA OHIO NEW (1803) JERSEY ILLINOIS INDIANA (1818) (1816) MARYLAND DELAWARE Atlantic O c ea n. oR VIRGINIA i Oh Forts KENTUCKY Disputed boundaries (1792) Northwest Territory 0 100 200 miles 0 100 200 kilometers TENNESSEE (1796) NORTH CAROLINA THE SEVEN RANGES First Area Survey DETAIL OF TOWNSHIP 36 square miles Income from section 16 2nd Range 6th Range 4th Range 5th Range 7th Range 3rd Range 5 4 3 2 1 1st Range 6 reserved for school support 7 8 9 10 11 12 DETAIL OF SECTION PENNSYLVANIA 1 square mile (640 acres) VIRGINIA 18 17 16 15 14 13 Half-section 19 20 21 22 23 24 (320 acres) 6 miles 6 miles Half-quarter-section 30 29 28 27 26 25 (80 acres) Quarter-quarter-section 1 mile (40 acres each) 31 32 33 34 35 36 Quarter -section 1 mile (160 acres) A series of ordinances in the 1780s provided for both the surveying and sale of lands in the public domain north of the Ohio River and the eventual admission of states carved from the area as equal members of the Union. 264 C H. 7 Founding a Nation, 1783 –1789 AMERICA UNDER THE CONFEDERATION throughout the West. A second ordinance, in 1785, regulated land sales in the region north of the Ohio River, which came to be known as the Old Northwest. Land would be surveyed by the government and then sold in “sections” of a square mile (640 acres) at $1 per acre. In each township, one section would be set aside to provide funds for public education. The sys- tem promised to control and concentrate settlement and raise money for Congress. But settlers violated the rules by pressing westward before the surveys had been completed. Like the British before them, American officials found it difficult to regulate the thirst for new land. The minimum purchase price of $640, however, put public land out of the financial reach of most settlers. They generally ended up buying smaller parcels from speculators and land companies. In 1787, Congress decided to sell off large tracts to private groups, including 1.5 million acres to the Ohio Company, organized by New England land speculators and army officers. (This was a different organization from the Ohio Company of the 1750s, mentioned in Chapter 4.) For many years, national land policy benefited private land companies and large buyers more than individual settlers. And for many decades, actu- al and prospective settlers pressed for a reduction in the price of govern- ment-owned land, a movement that did not end until the Homestead Act of 1862 offered free land on the public domain. A final measure, the Northwest Ordinance of 1787, called for the eventu- al establishment of from three to five states north of the Ohio River and east of the Mississippi. Thus was enacted the basic principle of what Jefferson called the “empire of liberty”—rather than ruling over the West as a colonial power, the United States would admit the area’s population as equal members of the political system. Territorial expansion and self- government would grow together. The Northwest Ordinance pledged that “the utmost good faith” would be observed toward local Indians and that their land would not be taken with- out consent. This was the first official recognition that Indians continued to own their land. Congress realized that allowing settlers and state govern- ment simply to seize Indian lands would produce endless, expensive mili- tary conflicts on the frontier. “It will cost much less,” one congressman noted, “to conciliate the good opinion of the Indians than to pay men for destroying them.” But national land policy assumed that whether through purchase, treaties, or voluntary removal, the Indian presence would soon disappear. The Ordinance also prohibited slavery in the Old Northwest, a provision that would have far-reaching consequences when the sectional conflict between North and South developed. But for years, owners brought slaves into the area, claiming that they had voluntarily signed long-term labor contracts. THE CONFEDERATION’S WEAKNESSES Whatever the achievements of the Confederation government, in the eyes of many influential Americans they were outweighed by its fail- ings. Both the national government and the country at large faced wors- ening economic problems. To finance the War of Independence, Congress had borrowed large sums of money by selling interest-bearing bonds and paying soldiers and suppliers in notes to be redeemed in the What were the achievements and problems of the Confederation government? 265 future. Lacking a secure source of revenue, it found itself unable to pay either interest or the debts themselves. With the United States now out- side the British empire, American ships were barred from trading with the West Indies. Imported goods, however, flooded the market, under- cutting the business of many craftsmen, driving down wages, and drain- ing money out of the country. With Congress unable to act, the states adopted their own economic policies. Several imposed tariff duties on goods imported from abroad. Indebted farmers, threatened with the loss of land because of failure to meet tax or mortgage payments, pressed state governments for relief, as did urban craftsmen who owed money to local merchants. In order to increase the amount of currency in circulation and make it easier for individuals to pay their debts, several states printed large sums of paper money. Others enacted laws postponing debt collection. Creditors considered such meas- ures attacks on their property rights. In a number of states, legislative elec- tions produced boisterous campaigns in which candidates for office denounced creditors for oppressing the poor and importers of luxury goods for undermining republican virtue. A Bankruptcy Scene. Creditors repossess the belongings of a family unable to pay SHAYS’S REBELLION its debts, while a woman weeps in the In late 1786 and early 1787, crowds of debt-ridden farmers closed the courts background. Popular fears of bankruptcy in western Massachusetts to prevent the seizure of their land for failure to led several states during the 1780s to pass pay taxes. They called themselves “regulators”—a term already used by laws postponing the collection of debts. protesters in the Carolina backcountry in the 1760s. The uprising came to be known as Shays’s Rebellion, a name affixed to it by its opponents, after Daniel Shays, one of the leaders and a veteran of the War for Independence. Massachusetts had firmly resisted pressure to issue paper money or in other ways assist needy debtors. The participants in Shays’s Rebellion believed they were acting in the spirit of the Revolution. They modeled their tactics on the crowd activities of the 1760s and 1770s and employed liberty trees and liberty poles as symbols of their cause. They received no sympathy from Governor James Bowdoin, who dispatched an army headed by former revolutionary war general Benjamin Lincoln. The rebels were dispersed in January 1787, and more than 1,000 were arrested. Without adherence to the rule of law, Bowdoin declared, Americans would descend into “a state of anarchy, confusion and slavery.” Observing Shays’s Rebellion from Paris where he was serving as ambassa- dor, Thomas Jefferson refused to be alarmed. “A little rebellion now and then is a good thing,” he wrote to a friend. “The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants.” But the uprising was the culmination of a series of events in the 1780s that persuaded an influential group of Americans that the national government must be strengthened so that it could develop uniform economic policies and pro- tect property owners from infringements on their rights by local majorities. The actions of state legislatures (most of them elected annually by an expanded voting population), followed by Shays’s Rebellion, produced fears that the Revolution’s democratic impulse had gotten out of hand. “Our government,” Samuel Adams wrote in 1785, “at present has liberty for its object.” But among proponents of stronger national authority, liber- ty had lost some of its luster. The danger to individual rights, they came to 266 C H. 7 Founding a Nation, 1783 –1789 AMERICA UNDER THE CONFEDERATION believe, now arose not from a tyrannical central government, but from the people themselves. “Liberty,” declared James Madison, “may be endangered by the abuses of liberty as well as the abuses of power.” To put it another way, private liberty, especially the secure enjoyment of property rights, could be endangered by public liberty—unchecked power in the hands of the people. NATIONALISTS OF THE 1780S Madison, a diminutive, colorless Virginian and the lifelong disciple and ally of Thomas Jefferson, thought deeply and creatively about the nature of political freedom. He was among the group of talented and well-organized men who spearheaded the movement for a stronger national government. Another was Alexander Hamilton, who had come to North America as a youth from the West Indies, served at the precocious age of twenty as an army officer during the War of Independence, and married into a promi- nent New York family. Hamilton was perhaps the most vigorous proponent of an “energetic” government that would enable the new nation to become James Madison, “father of the a powerful commercial and diplomatic presence in world affairs. Genuine Constitution,” in a miniature portrait liberty, he insisted, required “a proper degree of authority, to make and painted by Charles Willson Peale in 1783. exercise the laws.” Men like Madison and Hamilton were nation-builders. Madison was only thirty-six years old They came to believe during the 1780s that Americans were squandering when the Constitutional Convention met. the fruits of independence and that the country’s future greatness depend- ed on enhancing national authority. The concerns voiced by critics of the Articles found a sympathetic hear- ing among men who had developed a national consciousness during the Revolution. Nationalists included army officers, members of Congress accustomed to working with individuals from different states, and diplo- mats who represented the country abroad. In the army, John Marshall (later a chief justice of the Supreme Court) developed “the habit of considering America as my country, and Congress as my government.” Influential eco- nomic interests also desired a stronger national government. Among these were bondholders who despaired of being paid so long as Congress lacked a source of revenue, urban artisans seeking tariff protection from foreign imports, merchants desiring access to British markets, and all those who feared that the states were seriously interfering with property rights. While these groups did not agree on many issues, they all believed in the need for a stronger national government. In September 1786, delegates from six states met at Annapolis, Maryland, to consider ways for better regulating interstate and interna- tional commerce. The delegates proposed another gathering, in Philadelphia, to amend the Articles of Confederation. Shays’s Rebellion greatly strengthened the nationalists’ cause. “The late turbulent scenes in Massachusetts,” wrote Madison, underscored the need for a new constitu- tion. “No respect,” he complained, “is paid to the federal authority.” Alexander Hamilton, another youthful Without a change in the structure of government, either anarchy or leader of the nationalists of the 1780s, monarchy was the likely outcome, bringing to an end the experiment in was born in the West Indies in 1755. republican government. Every state except Rhode Island, which had gone This portrait was painted by Charles the farthest in developing its own debtor relief and trade policies, decided Willson Peale in the early 1790s. to send delegates to the Philadelphia convention. When they assembled in What were the achievements and problems of the Confederation government? 267 May 1787, they decided to scrap the Articles of Confederation entirely and draft a new constitution for the United States. A NEW CONSTITUTION The fifty-five men who gathered for the Constitutional Convention includ- ed some of the most prominent Americans. Thomas Jefferson and John Adams, serving as diplomats in Europe, did not take part. But among the delegates were George Washington (whose willingness to lend his prestige to the gathering and to serve as presiding officer was an enormous asset), George Mason (author of Virginia’s Declaration of Rights of 1776), and Benjamin Franklin (who had returned to Philadelphia after helping to negotiate the Treaty of Paris of 1783, and was now eighty-one years old). John Adams described the convention as a gathering of men of “ability, weight, and experience.” He might have added, “and wealth.” Few men of ordinary means attended. Although a few, like Alexander Hamilton, had risen from humble origins, most had been born into propertied families. They earned their livings as lawyers, merchants, planters, and large farm- ers. Nearly all were quite prosperous by the standards of the day. At a time when fewer than one-tenth of 1 percent of Americans attended college, more than half the delegates had college educations. A majority had participated in interstate meetings of the 1760s and 1770s, and twenty- two had served in the army during the Revolution. Their shared social sta- tus and political experiences bolstered their common belief in the need to strengthen national authority and curb what one called “the excesses of democracy.” To ensure free and candid debate, the deliberations took place A fifty-dollar note issued by the in private. Madison, who believed the outcome would have great conse- Continental Congress during the War quences for “the cause of liberty throughout the world,” took careful notes. of Independence. Congress’s inability to They were not published, however, until 1840, four years after he became raise funds to repay such paper money the last delegate to pass away. in gold or silver was a major reason why nationalists desired a stronger federal government. THE STRUCTURE OF GOVERNMENT It quickly became apparent that the delegates agreed on many points. The new Constitution would create a legislature, an executive, and a national judiciary. Congress would have the power to raise money without relying on the states. States would be pro- hibited from infringing on the rights of property. And the government would represent the people. Hamilton’s proposal for a president and Senate serv- ing life terms, like the king and House of Lords of England, received virtually no support. The “rich and well-born,” Hamilton told the convention, must rule, for the masses “seldom judge or deter- mine right.” Most delegates, however, hoped to find a middle ground between the despotism of monar- chy and aristocracy and what they considered the excesses of popular self-government. “We had been 268 C H. 7 Founding a Nation, 1783 –1789 A NEW CONSTITUTION The Philadelphia State House (now called Independence Hall), where the Declaration of Independence was signed in 1776 and too democratic,” observed George Mason, but he warned against the danger the Constitutional Convention took place of going to “the opposite extreme.” The key to stable, effective republican in 1787. government was finding a way to balance the competing claims of liberty and power. Differences quickly emerged over the proper balance between the feder- al and state governments and between the interests of large and small states. Early in the proceedings, Madison presented what came to be called the Virginia Plan. It proposed the creation of a two-house legislature with a state’s population determining its representation in each. Smaller states, fearing that populous Virginia, Massachusetts, and Pennsylvania would dominate the new government, rallied behind the New Jersey Plan. This called for a single-house Congress in which each state cast one vote, as under the Articles of Confederation. In the end, a compromise was reached—a two-house Congress consisting of a Senate in which each state had two members, and a House of Representatives apportioned according to population. Senators would be chosen by state legislatures for six-year terms. They were thus insulated from sudden shifts in public opinion. Representatives were to be elected every two years directly by the people. THE LIMITS OF DEMOCRACY Under the Articles of Confederation, no national official had been chosen by popular vote. Thus, the mode of choosing the House of Representatives represented an expansion of democracy. Popular election of at least one part of the political regime, Madison declared, was “essential to every plan of free government.” The Constitution, moreover, imposed neither proper- ty nor religious qualifications for voting, leaving it to the states to set vot- ing rules. What major disagreements and compromises molded the final content of the Constitution? 269 Overall, however, the new structure of government was less than demo- cratic. The delegates sought to shield the national government from the popular enthusiasms that had alarmed them during the 1780s and to ensure that the right kind of men held office. The people would remain sovereign, but they would choose among the elite to staff the new government. The delegates assumed that the Senate would be composed of each state’s most distinguished citizens. They made the House of Representatives quite small (initially 65 members, at a time when the Massachusetts assembly had 200), on the assumption that only prominent individuals could win elec- tion in large districts. Nor did the delegates provide for direct election of either federal judges or the president. Members of the Supreme Court would be appointed by the president for life terms. The president would be chosen either by mem- bers of an electoral college or by the House of Representatives. The number of electors for each state was determined by adding together its allocation of senators and representatives. A state’s electors would be chosen either by its legislature or by popular vote. In either case, the delegates assumed, electors would be prominent, well-educated individuals better qualified than ordinary voters to choose the head of state. The actual system of election seemed a recipe for confusion. Each elector was to cast votes for two candidates for president, with the second-place finisher becoming vice president. If no candidate received a majority of the electoral ballots—as the delegates seem to have assumed would normally be the case—the president would be chosen from among the top three fin- ishers by the House of Representatives, with each state casting one vote. The Senate would then elect the vice president. The delegates devised this extremely cumbersome system of indirect election because they did not trust ordinary voters to choose the president and vice president directly. THE DIVISION AND SEPARATION OF POWERS Hammered out in four months of discussion and compromise, the Constitution is a spare document of only 4,000 words that provides only the briefest outline of the new structure of government. (See the Appendix for the full text.) It embodies two basic political principles—federalism, sometimes called the “division of powers,” and the system of “checks and balances” between the different branches of the national government, also known as the “separation of powers.” Federalism refers to the relationship between the national government and the states. Compared to the Articles of Confederation, the Constitution significantly strengthened national authority. It charged the president with enforcing the law and commanding the military. It empowered Congress to levy taxes, borrow money, regulate commerce, declare war, deal with foreign nations and Indians, and promote the “general welfare.” Madison proposed to allow Congress to veto state laws, but this proved too far-reaching for most delegates. The Constitution did, however, declare national legislation the “supreme Law of the Land.” And it included strong provisions to prevent the states from infringing on property rights. They were barred from issuing paper money, impairing contracts, interfering with interstate commerce, and levying their own import or export duties. On the other hand, most day-to-day affairs of government, from education 270 C H. 7 Founding a Nation, 1783 –1789 A NEW CONSTITUTION to law enforcement, remained in the hands of the states. This principle of divided sovereignty was a recipe for debate, which continues to this day, over the balance of power between the national government and the states. The “separation of powers,” or the system of “checks and balances,” refers to the way the Constitution seeks to prevent any branch of the national government from dominating the other two. To prevent an accu- mulation of power dangerous to liberty, authority within the government is diffused and balanced against itself. Congress enacts laws, but the presi- dent can veto them, and a two-thirds majority is required to pass legislation over his objection. Federal judges are nominated by the president and approved by Congress, but to ensure their independence, the judges then serve for life. The president can be impeached by the House and removed from office by the Senate for “high crimes and misdemeanors.” THE DEBATE OVER SLAVERY The structure of government was not the only source of debate at the Constitutional Convention. As Madison recorded, “the institution of slav- ery and its implications” divided the delegates at many sessions. Those who gathered in Philadelphia included numerous slaveholders, as well as some dedicated advocates of abolition. Madison, like Jefferson a Virginia slave- holder who detested slavery, told the convention that the “distinction of color” had become the basis for “the most oppressive dominion ever exer- cised by man over man.” Yet he later assured the Virginia ratifying conven- tion that the Constitution offered slavery “better security than any that now exists.” The words “slave” and “slavery” did not appear in the Constitution—a concession to the sensibilities of delegates who feared they would “conta- minate the glorious fabric of American liberty.” As Luther Martin of Maryland wrote, his fellow delegates “anxiously sought to avoid the admis- sion of expressions which might be odious to the ears of Americans.” But, he continued, they were “willing to admit into their system those things which the expressions signified.” The document prohibited Congress from This advertisement for the sale of 100 abolishing the African slave trade for twenty years. It required states to slaves from Virginia to states farther south return to their owners fugitives from bondage. And it provided that three- appeared in a Richmond newspaper only fifths of the slave population would be counted in determining each state’s a few months after the signing of the representation in the House of Representatives and its electoral votes for Constitution. Slavery was a major subject president. of debate at the Constitutional Convention. South Carolina’s delegates had come to Philadelphia determined to defend slavery, and they had a powerful impact on the final document. They originated the fugitive slave clause, the three-fifths clause, and the electoral college. They insisted on strict limits on the power of Congress to levy taxes within the states, fearing future efforts to raise revenue by taxing slave property. They threatened disunion if the Atlantic slave trade were prohibited immediately, as the New England states and Virginia, with its abundance of native-born slaves, demanded. Their threats swayed many delegates. Gouverneur Morris, one of Pennsylvania’s delegates, declared that he was being forced to decide between offending the southern states or doing injustice to “human nature.” For the sake of national unity, he said, he would choose the latter. What major disagreements and compromises molded the final content of the Constitution? 271 The Signing of the Constitution, by SLAVERY IN THE CONSTITUTION mid-nineteenth-century American artist The Constitution’s slavery clauses were compromises, efforts to find a mid- Thomas Pritchard Rossiter, depicts dle ground between the institution’s critics and defenders. Taken together, the conclusion of the Constitutional however, they embedded slavery more deeply than ever in American life Convention of 1787. Among the founding and politics. The slave trade clause allowed a commerce condemned by civ- fathers depicted are James Wilson, signing ilized society—one that had been suspended during the War of the document at the table in the center, and Independence—to continue until 1808. On January 1, 1808, the first day George Washington, presiding from the that Congress was allowed under the Constitution, it prohibited the fur- dais with an image of the sun behind him. ther importation of slaves. But in the interim, partly to replace slaves who had escaped to the British and partly to provide labor for the expansion of slavery to fertile land away from the coast, some 170,000 Africans were brought to the new nation as slaves. South Carolina and Georgia imported 100,000. This number represented more than one-quarter of all the slaves brought to mainland North America after 1700. The fugitive slave clause accorded slave laws “extraterritoriality”—that is, the condition of bondage remained attached to a person even if he or she escaped to a state where slavery had been abolished. John Jay, while serving in Spain on a diplomatic mission, once wrote of how he missed the “free air” of America. Jay was probably unaware of the phrase’s full implications. In the famous Somerset case of 1772, the lawyer for a West Indian slave brought to Britain had obtained his client’s freedom by invoking the mem- orable words, “the air of England is too pure for a slave to breathe” (that is, the moment any person sets foot on British soil, he or she becomes free). Yet the new federal Constitution required all the states, North and South, to recognize and help police the institution of slavery. For slaves, there was no “free air” in America. The Constitution gave the national government no power to interfere with slavery in the states. And the three-fifths clause allowed the white South to exercise far greater power in national affairs than the size of its 272 C H. 7 Founding a Nation, 1783 –1789 A NEW CONSTITUTION free population warranted. The clause greatly enhanced the number of south- ern votes in the House of Representatives and therefore in the electoral college (where, as noted above, the number of electors for each state was determined by adding together its number of senators and representatives). Of the first sixteen presidential elections, between 1788 and 1848, all but four placed a southern slaveholder in the White House. Even the initial failure to include a Bill of Rights resulted, in part, from the presence of slavery. As South Carolina delegate Charles C. Pinckney explained, “such bills generally begin with declaring that all men are by nature born free,” a dec- laration that would come “with a very bad grace, when a large part of our property The preamble to the Constitution, as consists in men who are actually born slaves.” printed in a Pennsylvania newspaper two But some slaveholders detected a potential threat buried in the days after the Constitutional Convention Constitution. Patrick Henry, who condemned slavery but feared abolition, adjourned. warned that, in time of war, the new government might take steps to arm and liberate the slaves. “May Congress not say,” he asked, “that every black man must fight? Did we not see a little of this [in the] last war?” What Henry could not anticipate was that the war that eventually destroyed slav- ery would be launched by the South itself to protect the institution. THE FINAL DOCUMENT Gouverneur Morris put the finishing touches on the final draft of the new Constitution, trying to make it, he explained, “as clear as our language would permit.” For the original preamble, which began, “We the people of the States of New Hampshire, Massachusetts,” etc., he substituted the far more powerful, “We the people of the United States.” He added a statement of the Constitution’s purposes, including to “establish justice,” promote “the general welfare,” and “secure the blessings of liberty”—things the Articles of Confederation, in the eyes of most of the delegates, had failed to accomplish. The last session of the Constitutional Convention took place on September 17, 1787. Benjamin Franklin urged the delegates to put aside individual objections and approve the document, whatever its imperfec- tions. “The older I grow,” he remarked, “the more apt I am to... pay more respect to the judgment of others.” Of the forty-five delegates who remained in Philadelphia, thirty-nine signed the Constitution. It was then sent to the states for ratification. The Constitution created a new framework for American development. By assigning to Congress power over tariffs, interstate commerce, the coin- ing of money, patents, rules for bankruptcy, and weights and measures, and by prohibiting states from interfering with property rights, it made possi- ble a national economic market. It created national political institutions, reduced the powers of the states, and sought to place limits on popular What major disagreements and compromises molded the final content of the Constitution? 273 This satirical engraving by Amos Doolittle (who created the image of the Battle of Concord in Chapter 5) depicts some of the issues in the debate over the ratification of the Constitution. The wagon in the center is carrying Connecticut and sinking into the mud under the weight of debts and paper money as “Federals” and “Antifederals” try to pull it out. Federals call for the state to “comply with Congress” (that is, to pay money requisitioned by the national government); the Antifederals reply “tax luxury” and “success to Shays,” a reference to Shays’s Rebellion. The Connecticut shoreline and the buildings of Manhattan are on the right. Underneath the three merchant ships is a phrase criticizing the tariffs that states were imposing on imports from one another (which the Constitution prohibited). At the bottom is the biblical motto, “A house divided against itself cannot stand,” later made famous by Abraham Lincoln. democracy. “The same enthusiasm, now pervades all classes in favor of government,” observed Benjamin Rush, “that actuated us in favor of liberty in the years 1774 and 1775.” Whether “all classes” truly agreed may be doubt- ed, for the ratification process unleashed a nationwide debate over the best means of preserving American freedom. T H E R AT I F I C AT I O N D E B AT E A N D THE ORIGIN OF THE BILL OF RIGHTS THE FEDERALIST Even though the Constitution provided that it would go into effect when nine states, not all thirteen as required by the Articles of Confederation, had given their approval, ratification was by no means certain. Each state 274 C H. 7 Founding a Nation, 1783 –1789 THE RATIFICATION DEBATE AND THE ORIGIN OF THE BILL OF RIGHTS held an election for delegates to a special ratifying convention. A fierce public battle ensued, producing hundreds of pamphlets and newspaper articles and spirited campaigns to elect delegates. To generate support, Hamilton, Madison, and Jay composed a series of eighty-five essays that appeared in newspapers under the pen name Publius and were gathered as a book, The Federalist, in 1788. Hamilton wrote fifty, Madison thirty, and Jay the remainder. Today, the essays are regarded as among the most important American contributions to political thought. At the time, however, they represented only one part of a much larger national debate over ratifica- tion, reflected in innumerable pamphlets, newspaper articles, and public meetings. Again and again, Hamilton and Madison repeated that rather than pos- ing a danger to Americans’ liberties, the Constitution in fact protected them. Hamilton’s essays sought to disabuse Americans of their fear of polit- ical power. Government, he insisted, was an expression of freedom, not its enemy. Any government could become oppressive, but with its checks and balances and division of power, the Constitution made political tyranny almost impossible. Hamilton insisted that he was “as zealous an advocate for liberty as any man whatever.” But “want of power” had been the fatal flaw of the Articles. At the New York ratifying convention, Hamilton assured the delegates that the Constitution had created “the perfect balance between liberty and power.” “EXTEND THE SPHERE ” Madison, too, emphasized how the Constitution was structured to prevent abuses of authority. But in several essays, especially Federalist nos. 10 and 51, he moved beyond such assurances to develop a strikingly new vision of the relationship between government and society in the United States. Madison identified the essential dilemma, as he saw it, of the new repub- lic—government must be based on the will of the people, yet the people had shown themselves susceptible to dangerous enthusiasms. Most worri- some, they had threatened property rights, whose protection was the “first object of government.” The problem of balancing democracy and respect for property would only grow in the years ahead because, he warned, eco- nomic development would inevitably increase the numbers of poor. What was to prevent them from using their political power to secure “a more equal distribution” of wealth? The answer, Madison explained, lay not simply in the way power bal- anced power in the structure of government, but in the nation’s size and diversity. Previous republics had existed only in small territories—the Dutch republic, or Italian city-states of the Renaissance. But, argued Madison, the very size of the United States was a source of stability, not, as many feared, weakness. “Extend the sphere,” he wrote. The multiplicity of religious denominations, he argued, offered the best security for religious liberty. Likewise, in a nation as large as the United States, so many distinct interests—economic, regional, and political—would arise, that no single one would ever be able to take over the government and oppress the rest. Every majority would be a coalition of minorities, and thus “the rights of individuals” would be secure. Madison’s writings did much to shape the early nation’s understanding H o w d i d A n t i - Fe d e r a l i s t c o n c e r n s r a i s e d d u r i n g t h e r a t i f i c a t i o n p r o c e s s l e a d t o t h e c r e a t i o n o f t h e B i l l o f Ri g h t s ? 275 of its new political institutions. In arguing that the size of the republic helped to secure Americans’ rights, they reinforced the tradition that saw continuous westward expansion as essential to freedom. And in basing the preservation of freedom on the structure of government and size of the republic, not the character of the people, his essays represented a major shift away from the “republican” emphasis on a virtuous citizenry devoted to the common good as the foundation of proper government. Madison helped to popularize the “liberal” idea that men are generally motivated by self-interest, and that the good of society arises from the clash of these pri- vate interests. THE ANTI -FEDERALISTS Opponents of ratification, called Anti-Federalists, insisted that the Constitution shifted the balance between liberty and power too far in the direction of the latter. Anti-Federalists lacked the coherent leadership of the Constitution’s defenders. They included state politicians fearful of seeing their influence diminish, among them such revolutionary heroes as Samuel Adams, John Hancock, and Patrick Henry. Small farmers, many of whom supported the state debtor-relief measures of the 1780s that the Constitution’s supporters deplored, also saw no need for a stronger central government. Some opponents of the Constitution denounced the docu- ment’s protections for slavery; others warned that the powers of Congress were so broad that it might enact a law for abolition. Anti-Federalists repeatedly predicted that the new government would fall under the sway of merchants, creditors, and others hostile to the inter- ests of ordinary Americans. Repudiating Madison’s arguments in Federalist nos. 10 and 51, Anti-Federalists insisted that “a very extensive territory can- not be governed on the principles of freedom.” Popular self-government, they claimed, flourished best in small communities, where rulers and ruled interacted daily. Only men of wealth, “ignorant of the sentiments of the middling and lower class of citizens,” would have the resources to win elec- tion to a national government. The result of the Constitution, warned Melancton Smith of New York, a member of Congress under the Articles of Confederation, would be domination of the “common people” by the “well- born.” “This,” Smith predicted, “will be a government of oppression.” Liberty was the Anti-Federalists’ watchword. America’s happiness, they insisted, “arises from the freedom of our institutions and the limited nature of our government,” both threatened by the new Constitution. Maryland Anti-Federalists had caps manufactured bearing the word “Liberty,” to wear to the polls when members of the state’s ratification convention were elect- ed. To the vision of the United States as an energetic great power, Anti- Federalists counterposed a way of life grounded in local, democratic insti- In New York City’s Grand Federal tutions. “What is Liberty?” asked James Lincoln of South Carolina. “The Procession of 1788, celebrating the power of governing yourselves. If you adopt this constitution, have you ratification of the Constitution, members of this power? No.” each trade and occupation marched Anti-Federalists also pointed to the Constitution’s lack of a Bill of Rights, together. This document illustrates the which left unprotected rights such as trial by jury and freedom of speech variety of crafts in the pre-industrial city. and the press. The absence of a Bill of Rights, declared Patrick Henry, was “the most absurd thing to mankind that ever the world saw.” State consti- tutions had bills of rights, yet the states, Henry claimed, were now being  ! VOICES OF FREEDOM F R O M DAV I D R A M S AY , The History of the American Re v o l u t i o n ( 1 7 8 9 ) A member of the Continental Congress from for orderly deliberation, and yet representing the South Carolina, David Ramsay published his whole in equal proportion. These popular branches of legislature are miniature pictures of the history of the Revolution the year after the community, and from their mode of election are Constitution was ratified. In this excerpt, likely to be influenced by the same interests and he lauds the principles of representative feelings with the people whom they represent.... government and the right of future amendment, In no age before, and in no other country, did man embodied in the state constitutions and adopted ever possess an election of the kind of government, under which he would choose to live. The constituent in the national one, as unique American political parts of the ancient free governments were thrown principles and the best ways of securing liberty. together by accident. The freedom of modern European governments was, for the most part, obtained by concessions, or liberality of monarchs, or The world has not hitherto exhibited so fair an oppor- military leaders. In America alone, reason and liberty tunity for promoting social happiness. It is hoped for concurred in the formation of constitutions... In the honor of human nature, that the result will prove one thing they were all perfect. They left the people the fallacy of those theories that mankind are inca- in the power of altering and amending them, pable of self government. The ancients, not knowing whenever they pleased. In this happy peculiarity the doctrine of representation, were apt in their public they placed the science of politics on a footing with meetings to run into confusion, but in America this the other sciences, by opening it to improvements mode of taking the sense of the people, is so well from experience, and the discoveries of future ages. understood, and so completely reduced to system, By means of this power of amending American that its most populous states are often peaceably constitutions, the friends of mankind have fondly convened in an assembly of deputies, not too large hoped that oppression will one day be no more. 276  FROM JAMES WINTHROP, A n t i - Fe d e r a l i s t E s s a y S i g n e d “A g r i p p a ” ( 1 7 8 7 ) A local official in Middlesex, Massachusetts, legislate for themselves. Yet there is, I believe, not James Winthrop published sixteen public letters one point of legislation that is not surrendered in the proposed plan. Questions of every kind between November 1787 and February 1788 respecting property are determinable in a con- opposing ratification of the Constitution. tinental court, and so are all kinds of criminal causes. The continental legislature has, therefore, a right to make rules in all cases.... No rights are reserved to the citizens.... This new system is, It is the opinion of the ablest writers on the subject, therefore, a consolidation of all the states into one that no extensive empire can be governed upon large mass, however diverse the parts may be of republican principles, and that such a government which it is composed.... will degenerate into a despotism, unless it be made A bill of rights... serves to secure the minority up of a confederacy of smaller states, each having against the usurpation and tyranny of the the full powers of internal regulation. This is majority.... The experience of all mankind has precisely the principle which has hitherto pre- proved the prevalence of a disposition to use power served our freedom. No instance can be found of wantonly. It is therefore as necessary to defend an any free government of considerable extent which individual against the majority in a republic as has been supported upon any other plan. Large and against the king in a monarchy. consolidated empires may indeed dazzle the eyes of a distant spectator with their splendor, but if examined more nearly are always found to be full of misery.... It is under such tyranny that the Spanish provinces languish, and such would be our mis- QUESTIONS fortune and degradation, if we should submit to have the concerns of the whole empire managed by 1. Why does Ramsay feel that the power to one empire. To promote the happiness of the people amend the Constitution is so important a it is necessary that there should be local laws; and political innovation? it is necessary that those laws should be made by 2. Why does Winthrop believe that a Bill of the representatives of those who are immediately Rights is essential in the Constitution? subject to [them].... 3. How do Ramsay and Winthrop differ It is impossible for one code of laws to suit concerning how the principle of representation Georgia and Massachusetts. They must, therefore, operates in the United States? 277 278 C H. 7 Founding a Nation, 1783 –1789 THE RATIFICATION DEBATE AND THE ORIGIN OF THE BILL OF RIGHTS asked to surrender most of their powers to the federal government, with no requirement that it respect Americans’ basic liberties. In general, pro-Constitution sentiment flourished in the nation’s cities and in rural areas closely tied to the commercial marketplace. The Constitution’s most energetic supporters were men of substantial property. But what George Bryan of Pennsylvania, a supporter of ratification, called the “golden phantom” of prosperity also swung urban artisans, laborers, and sailors behind the movement for a government that would use its “energy and power” to revive the depressed economy. Anti-Federalism drew its support from small farmers in more isolated rural areas such as the Hudson Valley of New York, western Massachusetts, and the southern back- country. In the end, the supporters’ energy and organization, coupled with their domination of the colonial press, carried the day. Ninety-two newspapers and magazines existed in the United States in 1787. Of these, only twelve published a significant number of Anti-Federalist pieces. Madison also won support for the new Constitution by promising that the first Congress would enact a Bill of Rights. By mid-1788, the required nine states had ratified. Although there was strong dissent in Massachusetts, New York, and Virginia, only Rhode Island and North Carolina voted against ratifica- tion, and they subsequently had little choice but to join the new govern- ment. Anti-Federalism died. But as with other movements in American his- tory that did not immediately achieve their goals—for example, the Populists of the late nineteenth century—some of the Anti-Federalists’ ideas eventually entered the political mainstream. To this day, their belief that a too-powerful central government is a threat to liberty continues to influence American political culture. THE BILL OF RIGHTS Ironically, the parts of the Constitution Americans most value today—the freedoms of speech, the press, and religion; protection against unjust crim- inal procedures; equality before the law—were not in the original docu- ment. All of these but the last (which was enshrined in the Fourteenth Amendment after the Civil War) were contained in the first ten amend- ments, known as the Bill of Rights. Madison was so convinced that the bal- ances of the Constitution would protect liberty that he believed a Bill of Rights “redundant or pointless.” Amendments restraining federal power, he believed, would have no effect on the danger to liberty posed by unchecked majorities in the states, and no list of rights could ever antici- pate the numerous ways that Congress might operate in the future. “Parchment barriers” to the abuse of authority, he observed, would prove least effective when most needed. Madison’s prediction would be amply borne out at future times of popular hysteria, such as during the Red Scare following World War I and the McCarthy era of the 1950s, when all branches of government joined in trampling on freedom of expression, and during World War II, when hatred of a foreign enemy led to the internment of more than 100,000 Japanese-Americans, most of them citi- zens of the United States. Nevertheless, every new state constitution contained some kind of dec- laration of citizens’ rights, and large numbers of Americans—Federalist  ! VISIONS OF FREEDOM Banner of the Society of Pewterers. A banner carried by one of the many artisan groups that took part in New QUESTIONS York City’s Grand Federal Procession of 1788 celebrating the ratification of the Constitution. The banner depicts 1. Why do you think the pewterers believed artisans at work in their shop and some of their products. that the new Constitution would promote The words “Solid and Pure,” and the inscription at the Americans’ freedom and prosperity, as stated upper right, link the quality of their pewter to their in the inscription? opinion of the new frame of government and hopes for the 2. How does the banner reflect the pewterers’ future. The inscription reads: pride in their craft? The Federal Plan Most Solid and Secure Americans Their Freedom Will Endure All Arts Shall Flourish in Columbia’s Land And All Her Sons Join as One Social Band 279 280 C H. 7 Founding a Nation, 1783 –1789 THE RATIFICATION DEBATE AND THE ORIGIN OF THE BILL OF RIGHTS and Anti-Federalist alike—believed the new national Constitution should also have one. In order to “conciliate the minds of the people,” as Madison put it, he presented to Congress a series of amendments that became the basis of the Bill of Rights, which was ratified by the states in 1791. The First Amendment pro- hibited Congress from legislating with regard to religion or infringing on free- dom of speech, freedom of the press, or the right of assembly. The Second upheld the people’s right to “keep and bear arms” in conjunction with “a well-regulated militia.” Others prohibited abuses such as arrests without warrants and forcing a person accused of a crime to testify against himself, and reaffirmed the right