Empire of Liberty: A History of the Early Republic, 1789-1815 (14 page)

The Second Amendment states that “a well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” Because of its awkward wording, this amendment has become one of the most controversial at the present time. Its framers, of course, had little awareness of the distinction drawn today between a collective and an individual right to bear arms, and certainly they had no modern conception of gun control.
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The Third Amendment, expressing the long-standing English fear of standing armies, limits the power of the government to quarter troops in the homes of citizens. The Fourth Amendment prevents the government from unreasonable searches and seizures of persons and property—an issue in 1761 with which, according to John Adams, the fiery Boston patriot James Otis had given birth to “the child Independence.”
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The Fifth Amendment guarantees the rights of those suspected of crime and prohibits the government from taking private property for public use without just compensation. Amendment VI recognizes the rights of criminal defendants, and Amendment VII protects the right to jury trial in certain civil trials. The Eighth Amendment prohibits excessive bail and fines and “cruel and unusual punishments.”

The Ninth Amendment, which was very important to Madison, states that “the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” And the Tenth Amendment
reserves to the states or the people all powers not delegated to the federal government and not prohibited to the states. Placing such a clause in the Constitution had been a point of particular concern for the Anti-Federalists. In the Virginia ratifying convention George Mason had warned that “unless this was done, many valuable and important rights would be concluded to be given up by implication.” Indeed, he had said, “unless there were a Bill of Rights, implication might swallow up all our rights.”
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In the early fall of 1789 the Congress passed the amendments and sent them to the states for ratification. By then many Federalists had come to see that a bill of rights might be a good thing after all. Not only was it the best way of undercutting the strength of Anti-Federalism in the country, but the Bill of Rights that emerged, as Hamilton pointed out, left “the structure of the government and the mass and distribution of its powers where they were.”
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Anti-Federalists in the Congress began to realize that Madison’s rights-based amendments weakened the desire for a second convention and thus actually worked against their cause of fundamentally altering the Constitution. Madison’s amendments, as opponents of the Constitution angrily came to realize, were “good for nothing” and were “calculated merely to amuse, or rather to deceive.”
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They affected “personal liberty alone, leaving the great points of the Judiciary & direct taxation &c. to stand as they are.”
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Before long the Federalists were expressing surprise that the Anti-Federalists had become such vigorous opponents of amendments, since they were originally their idea.
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Unlike the French Declaration of Rights of Man and Citizen issued by the National Assembly in 1789, the American Bill of Rights of 1791 was less a creative document than a defensive one. It made no universal claims but was rooted solely in the Americans’ particular history.
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It did not invent human rights that had not existed before, but mainly reiterated long-standing English common law rights. Unlike the French Declaration, which transcended law and the institutions of government and in fact became the source of government and even society itself, the American
Bill of Rights was simply part of the familiar English customary law that worked to limit pre-existing governmental power. to find an American version of the French Declaration of Rights of Man and Citizen that asserted the natural, equal, and universal nature of human rights requires reaching back to the Declaration of Independence of 1776.

Under the circumstances the states ratified the first ten amendments slowly and without much enthusiasm between 1789 and 1791; several of the original states—Massachusetts, Connecticut, and Georgia—did not even bother. After ratification, most Americans promptly forgot about the first ten amendments to the Constitution. The Bill of Rights remained judicially dormant until the twentieth century.

T
HE
A
NTI
-F
EDERALISTS
may have been concerned with rights, but most Federalists had believed that power was what was most needed in the new government. And power to the eighteenth-century American Revolutionaries essentially meant monarchy. If there were to be a good dose of monarchical power injected into the body politic, as many Federalists expected in 1787, the energetic center of that power would be the presidency. For that reason it was the office of the president that made many Americans most suspicious of the new government.

The presidency was a new office for Americans. The Confederation had had a Congress, but it had never possessed a single strong national executive.
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Article II of the Constitution is very vague about the president’s powers. All it says is that the executive power shall be vested in the president and that the president shall be the commander-in-chief of the army and the navy and the militia, when called into service of the United States.

Such an office was bound to remind Americans of the king they had just cast off. When James Wilson in the Philadelphia Convention had moved that the executive “consist of a single person,” a long uneasy silence had followed. The delegates knew only too well what such an office implied. John Rutledge complained that “the people will think we are leaning too much towards Monarchy.”
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But the Convention had
resisted these warnings and had gone on to make the new chief executive so strong, so king-like, only because the delegates expected George Washington to be the first president. The authority of the presidency would never “have been so great,” privately admitted Pierce Butler of South Carolina, “had not many members cast their eyes towards General Washington as President; and shaped their Ideas of the Powers to a President, by their opinion of his Virtue.”
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Washington’s unanimous election as president was preordained. He was the only person in the country who automatically commanded the allegiance of all the people. He was probably the only American who possessed the dignity, patience, restraint, and reputation for republican virtue that the untried but potentially powerful office of the presidency needed at the outset.

Washington, with his tall, imposing figure, Roman nose, and stern, thin-lipped face, was already at age fifty-eight an internationally famous hero—not so much for his military exploits during the Revolutionary War as for his character. At one point during the war he could probably have become a king or dictator, as some wanted, but he had resisted these blandishments.
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Washington always respected civilian superiority over the army, and at the moment of military victory in 1783 he had unconditionally surrendered his sword to the Congress. He promised not to take “any share in public business hereafter” and, like the Roman conqueror Cincinnatus, had returned to his farm. This self-conscious retirement from public life had electrified the world. All previous victorious generals in modern times—Cromwell, William of Orange, Marlborough—had sought political rewards commensurate with their military achievements. But not Washington. He seemed to epitomize public virtue and the proper character of a republican leader.

Following his formal retirement from public life in 1783, Washington understandably had hesitated to get involved in the movement for a new federal government during the 1780 s. Nevertheless, he had reluctantly agreed to attend the Philadelphia Convention and had been elected its president. After the Constitution was ratified, Washington still thought he could retire to the domestic tranquility of Mount Vernon. But the rest of the country assumed that he would become the first president of the new nation. People said he was denied children in his private life so he could be the father of his country.

O
NCE
W
ASHINGTON WAS ELECTED
, many people, including Jefferson, expected that he might be president for life, that he would be a kind of elective monarch, something not out of the question in the eighteenth century. Poland, after all, was an elective monarchy; and James Wilson pointed out that in the distant past “crowns, in general, were originally elective.”
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Many Americans in the 1790s took seriously the prospect of some sort of monarchy developing in America. “There is a natural inclination in mankind to Kingly Government,” Benjamin Franklin had warned the Philadelphia Convention. In fact, many like Hugh Williamson of North Carolina in 1787 thought that the new American government “should at some time or other have a King.”
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Although America becoming a monarchy might seem absurd, in 1789 it did not seem so at all. After all, Americans had been raised as subjects of monarchy and, in the opinion of some, still seemed emotionally to value the hereditary attributes of monarchy.
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In 1794 an English traveler was struck by the degree to which New Englanders were becoming “Aristocrats” and were willing to “admit monarchy, or something like it, seeing and dreading the evils of democracy.” They were, he noted, a “haughty” people, “proud of their families, which from their emigration near two centuries since, they trace . . . from the best blood in England. . . . Most of them display their arms engraven over their door, or emblazoned over the Chimney Piece.” A small matter perhaps, but to this foreign observer, “this little trait of pride is strongly indicative of national character.”
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No doubt for many Federalist gentlemen ancestry continued to be important. In visiting Britain, even devout republicans like Jefferson tended to look up their ancestors.

William Short, viewing the new Constitution from abroad, was not immediately frightened by the power of the executive. But the Virginia diplomat, who was Jefferson’s protégé and successor in France, thought that “the President of the eighteenth century” would “form a stock on which will be grafted a King in the nineteenth.” Others, like George Mason of Virginia, believed that the new government was destined to become “an elective monarchy,” and still others, like Rawlins Lowndes of
South Carolina, assumed that the government so closely resembled the British form that everyone naturally expected “our changing from a republic to monarchy.”
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to add to the confusion, the line between monarchical and republican governments in the eighteenth century was often hazy at best, and some were already talking about monarchical republics and republican monarchies.
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Once Washington accepted the presidency, he inevitably found himself caught up in some monarchical trappings. His journey from Mount Vernon to the capital in New York in the spring of 1789, for example, took on the air of a royal procession. He was saluted by cannons and celebrated in elaborate ceremonies along the way. Everywhere he was greeted by triumphal rejoicing and acclamations of “Long live George Washington!” With Yale students debating the advantages of an elective over a hereditary king, suggestions of monarchy were very much in the air. Following Washington’s unanimous election as president in the late winter of 1789, James McHenry of Maryland told him, “You are now a King, under a different name.” McHenry, who later became Washington’s secretary of war, wished the new president to “reign long and happy over us.” It was not surprising, therefore, that some people referred to Washington’s inauguration as a “coronation.”
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So prevalent was the thinking that Washington resembled an elected monarch that some even expressed relief that he had no heirs.
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Washington was sensitive to these popular anxieties about monarchy, and for a while he had thought of holding the presidency for only a year or so and then resigning and turning the office over to Vice-President John Adams. In the initial draft of his inaugural address he pointed out that “the Divine Providence hath not seen fit, that my blood should be transmitted or name perpetuated by the endearing though sometimes seducing channel of immediate offspring.” He had, he wrote, “no child for whom I could wish to make a provision—no family to build in greatness upon my country’s ruins.” Although Madison talked him out of this draft, Washington’s desire to show the public that he harbored no monarchical aspirations revealed just how widespread was the talk of monarchy.
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Washington’s sensitivity to public opinion made him uncertain about the role he ought to play as president. He had understood what to do as commander-in-chief of the army, but the presidency was a wholly new office with a longer term than that of any of the state governors. He realized that the new government was fragile and needed dignity, but how far in a monarchical European direction ought he go to achieve it? As president, Washington tried to refuse accepting any salary, just as he had as commander-in-chief: such a renunciation, he thought, would be evidence of his disinterestedness in serving his country.
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But as president he knew he needed to do more to enhance the dignity of the office. Keenly aware that whatever he did would become a precedent for the future, he sought advice from those close to him, including the vice-president and the man he would soon make his secretary of the treasury, Alexander Hamilton. How often should he meet with the public? How accessible should he be? Should he dine with members of Congress? Should he host state dinners? Could he ever have private dinners with friends? Should he make a tour of the United States? The only state ceremonies that late eighteenth-century Americans were familiar with were those of the European monarchies. Were they applicable to the young republic?