American Experiment (9 page)

For the black man, exclusion from the reach of liberty and equality, even on solemn occasions glorifying liberty and equality for “all men,” was already an old story. In his first draft of the Declaration of Independence, Thomas Jefferson had indicted King George for the horrors of the slave trade, only to have this clause struck out from the final draft on the insistence of South Carolinians and other seacoast Southerners. And even in Massachusetts, where slaves had been “freed,” emancipation was accomplished by judicial decree rather than legislative action. What white workers really wanted, in Donald Robinson’s words, “was not the emancipation of the slaves, but their removal from the state.”

Throughout the heated debates that followed, the three-fifths formula stuck. Another seeming compromise was reached on the issue of the slave trade: abolition not before 1808, with a powerful extradition clause written into the Constitution. What the delegates did not do was more important than what they did: “they did not themselves outlaw slavery,” Rossiter noted, “nor in any way seek to mitigate its effects; they did not give Congress the power to outlaw slavery in the states; they made provision neither to help nor hinder free Negroes in the attempt to win the status and rights of citizenship.” The reason was obvious to all: a stronger stand on slavery would probably have led to rejection of the Constitution in the South, and eventually to disunion.

Union and order and national strength were far more important to most of the Framers than were the rights or liberties of black men and women. For only in union and order, most of them believed, could their own liberties be protected.

And so the men of Philadelphia persevered through the hot July and August days, filling out the details now that the grand design had been set in the Connecticut compromise, sawing boards to make them fit, as Benjamin Franklin said. Some of the boards required much sanding and smoothing, as the delegates thrashed out irksome but vital aspects of the relations between the national and state governments, the enumerated powers of Congress, the jurisdiction of the courts, the reach of impeachment, the amending clause, and procedures for ratifying the Constitution itself. They endured hundreds of roll-call votes as they polished clause after clause of the new charter. They debated the “details” of the Constitution as if they foresaw that someday vital outcomes would turn on such matters as the availability of impeachment or the scope of judicial review. They deliberated as if the eyes of the world were on them. “With Grave Anxiety, my dear friend, I wail for the Result of the Convention,” Lafayette
had written John Jay, who was keeping in touch with delegates from his post in New York. Hour after hour the delegates toiled, six days a week, with hardly a break, except for a ten-day recess during which a committee on detail consolidated the work of the convention, while the rest of the delegates dined out, tackled their correspondence, took excursions into the countryside, and went fishing. Philadelphia offered few temptations; nights were given over to further talk in taverns and in the delegates’ hot and crowded quarters.

There were diversions. One was the spectacle of Alexander Hamilton taking the floor for six hours one day to orate brilliantly on the need for a powerful national government and a President of almost monarchical cast. The delegates listened avidly, then returned to their mundane carpentry. Another was John Fitch’s steamboat, which the inventor demonstrated down at the river. Watching the ungainly, heaving, panting contraption, the delegates could hardly have dreamed that steam would transform the very society and economy they were seeking to tame.

T
HE STORY HAS OFTEN
been told of the final conciliatory moment of the convention, on September 17—of Benjamin Franklin’s remark, as the last members were signing, that during the vicissitudes of the proceedings he had often looked at the president’s chair, on which a sun happened to be painted, and wondered whether it was a rising or a setting sun; but now, he said, he knew that it was rising. The delegates later repaired to the City Tavern on Second Street near Walnut, where they “dined together,” Washington reported, “and took a cordial leave of each other.”

Nevertheless, the convention adjourned amid extensive disagreements and misgivings. Three delegates—Randolph, Mason, and Gerry—refused to put their names on the document. Others signed mainly to present a show of unity. A number of delegates lamented especially the absence of a bill of rights. When Charles Pinckney and Elbridge Gerry had proposed in convention that the “liberty of the Press should inviolably be observed,” Sherman had replied, “It is unnecessary—the power of Congress does not extend to the Press,” and the proposal was voted down. Sherman’s argument had sat badly; how could a constitution fashioned to protect liberty omit a guarantee of liberty? Still, delegates felt that this omission and other failures in the charter could be remedied through extensive use of the amendment process that they had fashioned so carefully. Some calculated that adding a bill of rights could be made the price of accepting the new charter.

Still, the delegates had passed a hard test of leadership in Philadelphia. The question in the fall of 1787 was whether these leaders could pass the far harsher test of winning support for the new charter in the ratifying conventions to be held in the states. At the start, prospects looked good for the “friends of the Constitution.” They were led by Madison, Hamilton, Wilson, and others who had demonstrated their political skills year after year, in struggle after struggle. They had both an evocative symbol and a stalwart leader in George Washington. They had access to clergymen, editors, state officials. They could boast of a reserve team of leaders who had not attended the convention but who matched the Federalists at
Philadelphia in their political experience and acumen—men like John Adams of Boston and London, Thomas Jefferson of Charlottesville and Paris, John Jay of New York, John Marshall and Edmund Pendleton of Virginia, Dr. Benjamin Rush of Pennsylvania, Edward Rutledge and Henry Laurens of South Carolina.

The Federalist plan was to push quickly through Congress, in which they were well represented, a resolution transmitting the draft Constitution on to the states with a recommendation in favor of ratification. But the national legislature, still cautious to the point of inertia, would not commit itself; and the Federalists had to be satisfied with a resolution that the document “be transmitted to the several legislatures in order to be submitted to a convention of delegates chosen in each state by the people thereof.” Richard Henry Lee of Virginia complained to his fellow anti-Federalist George Mason that the Federalists had made much of the Congress
unanimously
transmitting the Constitution to the states, “hoping to have it mistaken for an unanimous approbation of the thing…[but] no approbation was given.” The Federalist tacticians also saw to it that the legislatures
had
to call conventions in their states, and that the Constitution would go into effect—for the ratifying states—after endorsement by conventions in any nine of the thirteen states. The new order would not wait for unanimity.

For a time the critics of the Constitution seemed thrown off balance by the Federalist momentum. But the anti-Federalists had a general strategy too. If the strength of the Federalists lay in their power to dominate the central and secret conclave in Philadelphia, that of their foes was to rally the opposition in the separate states. If the strength of the Federalists lay also in possessing a positive plan that would catalyze the amorphous political groupings in America, that of their foes was to unite the opponents of the Constitution, despite their own disagreements, in efforts to delay, amend, or repudiate the charter in the battle arenas of the states. The anti-Federalists were not overawed by the eminence of their leading opponents. One of them, annoyed by the incessant prating about the demigods of Philadelphia, remarked that he would not make invidious comments about their characters, “but I will venture to affirm, that twenty assemblies of equal number might be collected, equally respectable both in point of ability, integrity, and patriotism.” The foes of the Constitution could point to their own leadership in the convention—Mason, Gerry, and the others—and to their remarkable second team throughout the country, with state leaders such as Richard Henry Lee, Governor George Clinton of New York, Samuel Adams, and above all, the formidable Patrick Henry of Virginia.

Among the Federalist leaders, none was more active than Alexander Hamilton, now barely thirty-two years old. During the summer of 1787, as Robert Yates and John Lansing returned from Philadelphia and spread rumors that a consolidated national government was being contrived, he fell into a row with Governor Clinton, who was already busy rallying the opposition in New York State. Hamilton was at his worst in this encounter. Choosing the dangerous pseudonym “Caesar,” indulging freely in personal attacks, he took such an elitist position in favor of a strong national government, in which popular passions would be curbed to defend the people’s own liberties, that he confirmed the anti-Federalists’ worst suspicions. So Hamilton turned to a mere cerebral approach—a collaborative series of reasoned and trenchant essays on the Constitution, to be published in New York newspapers, and he had the wit to involve in this enterprise James Madison and John Jay, both of whom were in New York City at this time. By late October, Hamilton had struck off the first number of the
Federalist—
written, it has been said, on a vessel proceeding up the Hudson—in which the author called for moderation and then went on to argue that “a dangerous ambition more often lurks behind the specious mask of zeal for the rights of the people, than under the forbidding appearance of zeal for the firmness and efficiency of government.” The vigor of government was essential, he argued, to the “security of liberty.”

It was a remarkable collaboration. So agreed were the authors on their ends and their means, so similar was their background in ancient and contemporary classics, that readers could not recognize the particular author of a paper. Hamilton evidently had hoped that the three authors could meet regularly at his house at the corner of Broadway and Wall Street to unify the papers, but the trio were all too busy for this. He wisely chose Jay, still Secretary of Foreign Affairs, to write on foreign policy, Madison to philosophize on the shape and structure of the new government, and himself to demonstrate the inadequacies of the Confederation—a subject on which Hamilton viewed himself as an expert.

The authors wrote in secrecy, using the benign pseudonym “Publius”; Washington was one of the few to know something about the authorship. Throughout the late fall and winter of 1787-88 the papers appeared in the New York
Packet
on Tuesdays and Fridays and in the
Independent Journal
Wednesdays and Saturdays. Another newspaper ran some of the essays, but dropped the series after anti-Federalists aroused pressure from subscribers. So avidly were the essays sought after by “politicians and persons of every description,” the publishers John and Archibald McLean reported, that they issued a collected edition in March 1788, long before the end of the struggle over ratification.

Not even the enthusiastic McLeans could guess that a later publisher would be able to say with good reason that the
Federalist
was “America’s greatest contribution to political philosophy.” What attracted attention to the papers even at the time was the enlarged vision and the sophisticated analysis that the authors brought to their pitch for the new system. Although the essayists—especially Madison—drew heavily on their own earlier writings, they seemed to grow intellectually as they struck off the papers, sometimes as the printer waited impatiently.

Madison obviously liked his own earlier comments about the human tendency of liberty toward factionalism; the need nonetheless to protect liberty and find some other way to curb faction, which was sown in the very nature of man; the many varieties of faction, including the frivolous but most of all the economic (“the various and unequal distribution of property”). He contended still that the
causes
of faction could not be removed, and hence the only remedy was to control its
effects
, and that this could be accomplished by submerging factions in a wider sphere—namely, under a new, strong, national government. These ideas appeared in the 10th paper.

But Madison went far beyond his earlier writings intellectually in facing the supreme dilemma—the possibility that powerful factions, whether minority or majority, might capture the new national government just as they had come close to dominating state governments. No one has ever described the ultimate remedy—separation of House, Senate, executive, and judiciary, with each branch responsible to its own unique, competing constituency—as cogently and compellingly as Madison did in the 51st paper. “To what expedient then,” he asked after a long survey of the dilemma, “shall we finally resort for maintaining in practice the necessary partition of power among the several departments, as laid down in the constitution? The only answer that can be given is, that as all these exterior provisions are found to be inadequate, the defect must be supplied, by so contriving the interior structure of the government, as that its several constituent parts may, by their mutual relations, be the means of keeping each other in their proper places.” Each department must be as separate as possible, with a will of its own. Then came the imperishable words:

“But the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. The provision for defence must in this, as in all other cases, be made commensurate to the danger of attack. Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place. It may be a
reflection on human nature, that such devices should be necessary to controul the abuses of government. But what is government itself but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controuls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: You must first enable the government to controul the governed; and in the next place oblige it to controul itself. A dependence on the people, is no doubt, the primary controul on the government; but experience has taught mankind the necessity of auxiliary precautions.”