"Some men" wrote Jefferson in a letter,
"look at constitutions with sanctimonious reverence,
& deem them like the ark of the covenant,
too sacred to be touched.
They ascribe to the men of the preceding age a
wisdom more than human, and
suppose what they did to be beyond amendment."
He could say this all the more nicely since he had been
enjoying the fleshpots of Paris and the "gay face of nature" in the
countryside thereabouts with the lovely Madame Marie Cosway at a
time when the Constitution was being drafted.
The sacred documents of the American creed became the
Declaration of Independence of 1776, the
Constitution of 1789, with its
Bill of Rights (Amendments I to X).
The documents are kept in a 55-ton bombproof vault and
can be viewed only through bullet-proof
ultra-violet-filtered glass. Elaborate examinations by
microscope are conducted every several years to
see how many iotas of ink have blanched.
When the most powerful and rich, and perhaps culturally
most productive people in the world
worships a creation document,
just like the most "primitive" of peoples, and refers all manner of
good and glory to the Framers and their
Constitution, a historian of the people may properly
ask why. Have other peoples been unlucky?
Two centuries of scientific progress have occurred since the
Constitution was ratified by the States in 1789 and the
first elections took place under its provisions.
In all this time in all the world, no document,
no movement, no plan, no philosophy, and certainly no
constitution has shown itself to be rational and correct in its
expectations of its future. We should be suspicious
therefore of claims that the American Constitution
arose to quite another level of achievement.
Our job here is to bring into focus and
interpret the tribal dreamtime.
The Constitution was not perfect for its day,
it was not highly original,
it was not popular,
not much was expected of it,
it acquired ten immediate amendments
(out of 200 proposed)
as the price of ratification,
it lacked foresight of several great developments of history,
and it collapsed into a frightful Civil War within
two political generations.
Patched up and carried on the barrels of guns,
it became an offensive weapon not of the oppressed
but of an oligarchy of economic power.
Finally it allowed just about everything that "needed" to be
done by whoever could put through a winning combination of
the political forces of the nation.
In the years after World War II it was used as a
verbal instrument to humiliate professors into taking oaths.
Eschewing heroics, a Professor of Constitutional
Law at Harvard explained that he had no objection to
swearing his support for the Constitution,
inasmuch as it had supported him for many years.
The Constitution was elegantly drafted by a man who
hated the people. Some of the greatest Revolutionary
leaders rejected the document. It was not democratic.
It preserved and protected slavery.
Its amendment became so difficult, after the first
special burst of eleven amendments, that the
Constitution changed mostly by slippages and distortions of its
language, by hypocrisy,
by coups d'etat of courts and executives,
by economic disaster, and by war.
Amendments to push up a date have been ratified quickly;
amendments to declare women equal in rights to
men have lingered for decades and failed.
Every institution that it provided for is today
almost unrecognizable in its base, powers, and functions.
Many of its provisions are defunct;
if they are not unused, they are not employed
as intended but in devious ways.
Its most beautiful and humane passage was in the very process of
ratification given conveniently the name of "Preamble,"
and declared to be legally inoperative.
Nonetheless it is to the Preamble that one must go to begin an
understanding of the role and therefore the glory and prestige of the
Constitution. For there we read that
"We the people of the United States,
in order to form a more perfect union, establish justice,
insure domestic tranquillity, provide for the common defense,
promote the general welfare, and secure the blessings of liberty
to ourselves and our posterity,
do ordain and establish this
Constitution for the United States of America."
What is said in this passage is that the People,
not God, not a Monarch or Dictator,
not a Class of Society, not Nature, nor the Bible,
nor Right Reason, nor These Contracting Parties of Interest-
containing within themselves the force and legitimacy
of all these foregoing powers,
here ordain and establish how they shall rule themselves.
No sooner had this magnificent statement of the
People been expressed, when the Constitution
proceeded to limit the People.
This was inevitable, for the People does not exist,
never has existed, and never will exist,
except in a statistical sense, if one wishes to
count live bodies - and, most importantly, as a delusion
that lets a normal person feel united with a massive identity, and
that guides his behavior as if this collective identity were
real and cognitive. As soon as one goes beyond
mere enumeration - a meaningless exercise in itself -
one divides the people, and as soon as that happens,
one is in the realm of stresses and strains,
of differences of treatment, of restraints and freedoms.
Since the People as such does not exist,
we must regard the awe, deference, love, and pride
with which the Constitution is viewed and worshiped in
America as precisely the same primitive regard that
would be granted to any other form of legitimate authority -
divinity, reason, a charismatic leader,
a legendary law, a traditional monarch or elite.
Most people require that they be ruled, psychically and
more or less materially, by an awesome power.
What is to be made of the fact that Authority for the
Constitution was a mythical "people"? But all such
legitimating authorities might be called mythical.
Those who believed in the myth would behave more
enthusiastically in regard to whatever was tied to and
prescribed in the name of the myth. Moses claimed that his
tablets of the Law were dictated to him by Yahweh;
those who scorned his announced authority and
worshiped the Golden Calf, Moses massacred.
Early Puritans of Massachusetts and Connecticut
also believed that God guided their covenant-composition and
The republican Romans, closer to the deist American
Framers, used as their legitimating
authority the double myth of SPQR
(Senatus Populusque Romano -
the Senate and the Roman People). The English people were
expected to believe in the traditional legitimacy as
well as the godly unction implicated in the
Divine Right of King James I of the United Kingdom.
So with Louis XIV of France.
Or of the Germans charismatically influenced to
believe in the miracle and rightness of Der Führer,
At this point in history, "the People" was in ascendency and the
authors of the Constitution, its Framers, knew that no
considerable objection would be heard if they put everything they were
empowering on the backs of the People. Furthermore, they had no
alternative. They were already in the historical age of democracy,
when no antique symbol could be brought forward
for any new government, at least not in any
socially, religiously and economically advanced nation.
Although the Constitution became a primeval
creation dreamtime myth, it was also a creature of an
age of rationalism, the Enlightenment, and
it carries the intrinsic logic of an applied scientific creation.
It proceeds: In order to do this, we must do thus:
whence instruments, powers, restraints, demands, etc.
The Constitutional State - the ideas of a rule of law, and the
devising of an ideal structure attracting habitual conformity
in all governing procedures - is a form of applied science.
The premise of an authoritative legitimacy -
the People - is a geometrical contrivance,
to be followed by applications of the premise and its
needs to political reality. This applied
science conforms to the Enlightenment ideology, and to
basically similar constitutional forms that were
also generating in France.
Several of the influential supporters of the
Constitution - Hamilton, Madison, Franklin,
used quantitative metaphors of the science of the day.
They thought of balance and equilibrium as in the
lately developed field of mechanics. They counted
people and divided them into numbers for this or
that purpose - a census, representation, votes in the legislatures.
There was a tendency to make human operations in politics exact.
And to make of people numbers that can be manipulated in
different combinations for political reasons.
And the concept that they had of society as a congeries of groups was
not only an advance in scientific sociology, but
also effective in prescribing for such a society.
The Framers did achieve a number of rational controls,
because their theory -- that society was composed of competing groups,
and that the economic factor was important in the
settlement of human conflicts -- was justified by the events of the
time in Western Europe and by the tsunamis
moving out upon the other continents from Europe.
This interest group theory of government,
the best in the history of political philosophy until then,
occurred in Madison's Federalist paper number 10.
The Framers were not thinking in terms of evolution,
which would come heavily into science and politics a century later.
Nor in religious terms. And the question might be raised,
whether in avoiding religious contamination,
they did not evict morals, throwing out the
baby with the bath water. They did not think consciously and
seriously of the value of those human beings, in the
vast majority, whom their constitutional
prescriptions would govern.
They were blandly, calmly, easily in favor of a
certain elite portion of the population,
"people of the better sort", whose game of free and
assisted commerce they wished to be played, and
whose arena they wished to smooth and prepare for action,
and whose rules they thought they might refine;
they thought their main function might be to get rid of
various old physiocratic and mercantilist
ways of messing up the game by statist rules.
They pondered the contrivances that the free enterprise
class would find handy: a modern unified system of
weights and measures, of coinage, of copyrights and
patents for protecting advances in ideas and inventions.
And they wanted to prevent any hooliganism that would
come from the crowd if it were not guarded against by
such devices as a standing army, a guarantee to the
States of a republican form of government, and a
right to interfere anywhere in order to protect
federal law and authorities.
There was not a large confidence around the country
regarding efforts to bring about a closer union.
Pessimism persisted to the very end of the operation,
especially from the change-weary "inside dopesters" of the country.
Washington gave the Constitution twenty years
on the outside. Madison also thought that his
baby wouldn't breathe for long.
Endorsement of the Convention by the Congress of the Articles
followed two conferences previously held and aborted, and from the
failure of various commercial meetings. Madison's
resolution in the Virginia legislature came out of the
Committee on Commerce and urged all states to send
commissioners to Philadelphia : "to provide
effectually for the commercial interests of the United States."
Congress endorsed the Convention and in a resolution of
February 21,1787 limited its
scope to "the sole and express purpose of revising the
Articles of Confederation." Was it worried about rumors of a
forthcoming newly constituted government?
Or was Congress attempting to avoid irrelevancy?
Art. 13 of the Articles required that any amendment be
"afterwards confirmed by the legislatures of every state."
This was evaded. An unusual majority was provided instead,
so that nine states would have been enough
(not counting Vermont, that came in just then)
but actually all approved - only six without
reservations demanding or requesting amendments.
Records of the Convention are unsatisfying. Only sly
Madison's notes tell us much of what transpired, and
these were not available to the public for another political
generation, after all of the participants
had passed from the scene.
So they could not be contradicted by eyewitnesses.
The secrecy of the proceedings was hardly calculated to set
an example for a democracy. It is improper to excuse the men by
saying that it was "the way things were done in those days."
They knew very well that what they were doing
had to be kept under wraps, and released as a
timed capsule under the right auspices.
Framers, Founding Fathers, Authors
- they have been called, nor were these called so
at the time but more properly members of the
Convention at Philadelphia, which,
we remind ourselves, was not supposed to
compose a new constitution but to strengthen the old.
The Framers were formally the seventy-four men
selected by the legislatures, which were operating under
plurality procedures on the basis of small, male,
Caucasian electorates. Only 55 reported in
(of which 31 were lawyers, not much different from the
25 lawyers among 56 signers of the Declaration of Independence).
An average of 30 attended the proceedings,
18 were vigorous participants in the convention processes,
and 40 finally signed (including
Secretary Jackson who was a delegate - who took bad notes),
but barely a dozen - if that many - organized and ran the show.
A typical elite phenomenon:
from 4,000,000 people, one in twenty electors,
to 1,000 legislators of the 13 States,
to 74 nominees, to 55 check-ins,
to 30 typically in attendance,
to 18 centrally involved participants,
to 10 controllers,
and then back out and up again, with 40 signers,
the hundred-plus members of the Articles Congress,
to the 1,000 State legislators,
to the 1000 men elected
to the ratifying conventions in the 13 States
by the 120,000 electors,
to the 100 or so managers of the Federalist cause,
to the 4 million inhabitants.
Moreover, in most of the cited numbers there were
elites-inside-elites-inside-the-total-number; for example,
a few men controlled the attitudes and procedures of the Congress
and of the State legislatures.
And of the 120,000 potential voters, a third cast no ballots. "We the
PEOPLE.." in the end consisted of the number of voters, say, in
Chicago's Fifth Ward (of Fifty Wards) today.
Getting to the Convention was difficult, and to the ratifying
conventions and to the First Congress was just as hard, and
explains the frequent delays in arriving at quorums to
commence proceedings. There was a chance in six that
you would have an accident, a shipwreck,
a stagecoach incident, a storm or wash-out that would make an
improbable journey practically impossible. Roads were
unpaved and often mere paths.
Facilities along the route were minimal.
It took a few days to assemble the quorum and more,
but finally, at Philadelphia, Pennsylvania,
on May 25, 1787, some fifty-five men from
a majority of States assembled, a plurality of them
eminent, all well-connected or well-to-do,
not exactly filled with brotherly love -
brotherly love being mostly what poor people and
Quakers spoke of - but polished in dealing with human affairs.
Gouverneur (a proper name, not an office or a
misspelling) Morris of New York, a principal figure at the show,
positively detested the people at large.
He was largely responsible for the dry elegant style of
the Constitution, and its concise, logical, and formal progression;
he personally made much law in the process.
Throwing his weight around and venting his illiberal views
at every turn, with an arrogance that shows clearly
through the only records we have of the proceedings,
he obtained the dislike of historians, who unfairly downgraded him.
One story is told: he bet colleagues that he would
slap George Washington on the back in greeting.
He did, too, but said afterwards that the look he
got in return made the bet not worth winning.
(Nota bene: then, before, now,
a typical American was a born bettor.)
The group as a whole would of necessity reveal here
several fundamental unbrotherly attitudes,
that would presage significant problems of the future.
We have, unfortunately, too little of the interplay
occurring, as delegates arrived and departed. No one
expected mere honeyed words, because those who stayed were
still going to perform major operations on the
Articles of Confederation, the ongoing constitution of the
young Republic, even while the Articles were alive,
Philadelphia was a good convention town and an
experienced Capital of the country. Largest of American cities,
though well down the line today,
it was nicely situated in the middle of the 13 States,
moving from North to South. It was not committed to the
ideologies and life styles of the New Englanders and Southerners,
between whom little love was lost but much business was done.
New York had not only been a Loyalist hangout, but
it was not ready to strengthen the union.
Philadelphia had boarding houses, and friends, and
friends of friends, with whom delegates could stay.
General Washington, who arrived punctually from Virginia,
had reserved rooms at a boarding house, but was
prevailed upon by the Robert Morris'es to stay
at their house, nearby the Hall. The streets were not safe:
some delegates carried weapons against ruffians;
they rode and walked together;
some had bodyguards.
The delegates, chosen by their state legislatures,
acted with varying degrees of tight instructions from their
home bodies. Some could do as they pleased,
and this was because they did not want to do too much.
Attendance was not compulsory, and some arrived late,
some came and went, while some left before the work was done.
It was not a strictly disciplined operation.
Nor were the ordinary delegates awed by
the task and responsibility tendered them.
No one came to the Convention who was determined to break down
such unity as the Confederation had provided, or primarily to
guard against change. They all believed that "something
has to be done" to bind and control matters
physical, military and especially fiscal that
appeared to be getting out of hand.
The active and well-to-do were running scared.
There may have been guilt and nightmares for what the new upper
class had done to the Loyalists - and in collaboration with this
same "riff-raff." (Nor had they carried out their
promises to compensate the Loyalists for their property
loss, much less the physical harm and terror.)
Present was a clutch of proven human relations operators,
led to begin with by Alexander Hamilton,
still the young whippersnapper under the protection of the
august George Washington, whom he later called his "aegis,"
(probably a reference to the ancient shield of Zeus that
Athena was permitted to use, possessing magic powers,
including a Gorgon's head the sight of which
would cause people to freeze in fright). Formerly the
brilliant aide-de-camp, he carried now a
new role as an intermarried member of the
power elite of the State of New York, with expansive
theories of economics and finance. His birth as a West Indian
bastard and his orphaning at 13 was fairly forgotten
in a country where it took a wise man to know his own father.
However, Hamilton was to leave the Convention because the
other members of the New York delegation quit,
disgusted with the prevailing nationalist spirit, and
Hamilton had to depart with them. He stayed in touch;
he was a top propagandist over the country and
a top manipulator of the difficult
ratifying convention in New York.
Washington's reputation as a General and patriot of
all the colonies had been enhanced since the Revolution,
his famed reserve grown, too, annoyed by
infirmities like ill-fitting dentures and arthritic limbs,
but with a critical role assigned him by unanimous consent,
President of the proceedings; there he might cast his shadow
continuously over everyone and not have to say much
except through his reliable agents, and in fact,
in the torrent of words that eventuated in the Constitution,
he is recorded to have spoken only once, and that
to make a small point at the close.
Without exception the delegates - who one day
when things seemed to be working out well would be called
Founding Fathers - were of the top one per-cent of the
population of 4 millions in regard to
property, education, positions of authority and
power, and a group on the whole healthy.
Eldest of the group, now octogenarian, reminiscent
of the Albany Plan of Union of a political generation past, was
Quaker, scientist, inventor, womanizer, printer,
writer-publisher, Indianphile, land speculator,
industrialist, Revolutionary leader, diplomat,
Masonic Freethinker, and first Postmaster General,
The two broadest social class aggregates present were the
Northern financial and mercantile interest and the Southern
plantation interest. Among the 55 men who
attended the convention, there was no shopkeeper,
laborer, or small farmer, although these made up the
overwhelming number of Caucasian males in the
population. More than half had been to college.
About two-thirds owned State or Confederation bonds,
which would incline them to provide the fiscal means to
repay them. Almost a half had lent money at interest;
they would presumably wish the value of the money to
remain stable, and would want protection against any
takeover of law-making by the debtor class, which was huge.
A fourth of the delegates owned slaves.
Most were involved in large landholding deals.
A perennial debate among historians concerns the extent to
which their personal economic interests determined the
motives of the Framers and thence the Constitution
itself. Extreme positions have been advanced by marxist
economic determinists and idealistic
rationalists. On the whole the Framers and the
Federalists-to-be of the population were a
fearful and anxious group, but more nervous over
social disorder and uncertainty than over the
value of their property. That is, they were more afraid of
losing status, position, and their group identity than of
giving up possessions or pursuing profits greedily.
They were also more narrow than they were selfish in their view of
government, or, rather, narrowness let their selfishness stand out.
The Constitutionalists, the Federalists, tended to be
cosmopolitan in psychology and outlook, whereas the
anti-Constitutionalists, the anti-Federalists,
tended to be parochial. The former felt at home in an
enlarging world of ever-differentiating
occupations, whereas the latter felt most at home by his
fireside in a clannish bucolic locality.
Both groups had enjoyed political experience.
A fifth had participated in State constitutional conventions.
Over two-thirds had been members of the Confederation Congress.
Over half had been State legislators.
A few had been State governors or judges.
Still, among those who signed the Constitution were
only six men of the surviving 43
who had signed the Declaration of Independence,
eleven years earlier.
Though painstakingly studied by hundreds of scholars in their every
aspect, the relative influence of every member of the
convention cannot be known. It would seem that a dozen men
could be named who were responsible for assembling and agreeing
upon 90% of the Constitution; they would be
James Madison, George Washington, James Wilson,
John Dickinson, George Mason, William Randolph,
Alexander Hamilton, Elbridge Gerry, Roger Sherman,
Gouverneur Morris, Benjamin Franklin, and one more man
whose name presently slips my mind. Jefferson,
to repeat, was not present; he was Ambassador to France.
John Adams was also abroad.
James Madison of Virginia, all of five feet in height
(the same as Lenin and shorter than Napoleon),
slender, pained migraine sufferer, thirty-six years
old and looking even younger, wealthy of family,
conscientious slave-holder, Princeton College
graduate, unlucky in love, a heavy reader who
arrived with trunk upon trunk of books: he was to
be the hero - so unlikely a hero that it makes one
superstitiously favorable to the Constitution to
learn that he was its Father. His theory of interest-group
checks and balances, in society and government both,
pervaded the meetings and the end-product.
Those in effective charge at the Convention wanted a
Constitution with several features. One and all knew that
they were to strengthen the bonds that would tie together
profitably the individual States while
leaving them their liberty. (More and more,
liberty of a government to do as it pleased was called
"sovereignty" since Jean Bodin had glorified the idea and the word.)
They hoped for a government with a tidy purse of its own,
refilled periodically by modest taxes. This
income was to be used to pay off the existing debt and
run up new debts from time to time;
it was to maintain a small standing army to
enforce the government's laws, fight Indians, and
other external enemies; it would sustain a small
independent establishment of judges,
congressmen, and an executive; it would support a navy to
fight smuggling, pirates, and possibly an enemy.
They wanted to get rid of the rule of unanimity and extraordinary
majorities in decision-making, but recognized the need to
limit strictly the national government, and were ready to
recognize the need for a two-thirds majority on a few matters.
They wished to reconcile the principle of the equality of states
with the principle of relative riches and population
(riches were acknowledged to correlate statistically
well enough with the population of a State).
They were interested in a balanced constitution, which to them meant a
separation of powers into the judicial, executive and legislative
branches, and various checks of each upon the other
to keep any one branch from infringing upon the others.
They had two other balances in mind, although not referred to as such:
they wished to balance the federal government with the states, and
they wished to balance the rights of the small states
with those of the large states.
The structure of the document exhibits the separation of powers,
for the Congress, the Executive, and the Judiciary are taken up in
separate major sections. Thereupon each branch has
ways of checking the others. Thus the President might
veto (the word was not used in the Constitution) a
bill of the Congress, in which event a special
majority of two-thirds was needed in both houses to override.
Thus, too, the Supreme Court was independent,
chosen for life, and could smooth and chip away at the acts of the
President and Congress when adjudicating.
(Its power of declaring executive, legislative, and
whoever-else-is-bothersome's actions unconstitutional came later
by a coup d'état of a sort and several subsequent
repetitions of the same).
The legislature, with the power of the purse, could impoverish both
judiciary and executive; it could appoint or approve the
designation of justices and judges. Its power to impeach,
try, and remove members of the executive branch
including the President and Judges, too, was a judicial
function of consequence. A clever critic might have said to
all of this, that the power to check, if exercised
forcibly and extensively might quite upset the balance of
powers and the separation of the branches, and
one would be correct to say so.
There were other kinds of balances and checks -
like a complicated trapeze act it all was.
The Senate was there to check the House and
vice versa. The Federal government was to check the States and
vice versa. The people were to check the government and the
government the people. The Framers wished to prevent a
majority of the electorate, even a limited electorate, from
having a direct voice in the government (only several
would not have hated public opinion polls)
beyond the House of Representatives. Nor did they
tolerate the notion of the "great beast," the people -
in Hamilton's off-the-record language --
breaking into the law-making, law-execution, or
law-judging processes. They were afraid to write a limited
national suffrage qualification into the Constitution for the
election of members of the House of Representatives.
Instead, relying upon the niggardliness of the States in
handing out the right to vote, they let the states
define each its own qualifications for
casting a federal ballot.
They wanted Congress to be the most important branch of
government. They still had faith in representative
government through the legislature. They wished the
legislature to have the power to vote money, and
inscribed a system for controlling all tariffs, but
no export duties (this to allay the fears of the
Southern exporting states). The essence of
republican government must be the legislature.
The word "republican" occurred only once:
the federal government guaranteed each State
a republican form of government.
The word "democracy" did not appear at all.
How to elect the legislature became the hottest issue of the
Convention. The Virginians, well-prepared, came into the
Convention with a scheme that provided two houses,
one elected by the voters, the second to be elected by the
first house from lists of nominees
provided by the state legislatures. New Jersey delegates
counter-attacked with a plan in favor of the small
States and States' rights. It provided for the State
legislatures' electing an equal number of
representatives to a single-chambered Congress.
In concluding debate on the subject, a compromise coming
out of the Connecticut delegation was approved. This created
one chamber elected by State legislatures with
equal representation for all States, and a
second chamber elected by the voters with seats
apportioned to the States in relation to their population.
The Virginia plan had let the two houses of
Congress elect a chief executive. The New Jersey
idea was to have an executive council elected by the
single house of the Congress. The Connecticut version employed the
Electoral College in choosing the chief executive.
Most delegates wished a real executive branch
headed up by a real executive, to wit,
a President chosen in his own right. They wished the
executive to have the power to conduct foreign affairs,
except when it came to making war or writing
his own treaties. Although tempted to
make him popularly elective in order to make him a
truly national figure, they gave his election over to
a national Electoral College under State influence.
And so they provided. Members of the "College"
would be chosen as the States saw fit, whereupon,
in a single meeting, they would vote for President and
Vice-President, the latter being the runner-up
among the several candidates for President.
A majority of votes would be needed to elect the President;
lacking such, the House of Representatives,
voting as States ( with equal voice to every State)
would choose him from the top two candidates.
The Framers wished their handiwork to be durable,
so they made the document difficult to amend.
Two-thirds of both Houses and three-fourths of State legislatures
was one of the four difficult methods of change.
But there it was, the method of change. It had to be there.
It was in all the State constitutions.
The provision in constitutions for their amendment was
itself an invention within an invention. For it
confirmed that there was truly an origin of the Constitution
in the people; they might, not easily to be sure, change it.
It implied, too, that the proper method to change the
basic structure, powers, and functions of a government was by
peaceful and legal means, not by violence,
royal marriage, or voodoo.
They wanted to make the country safe and indulgent for
business, and therefore included various clauses that
forbade the States from impairing the obligation of
contracts, issuing currency, imposing any
import or export duties,
interfering with interstate commerce, or
making engagements with foreign powers.
To assure uniform rules of the game, full
recognition was to be given each State's acts
by every other State. Privileges and immunities of a
person in one State had to be extended to citizens
present there from any and all States.
The Framers protected patents and copyrights
nationally (but ominously did not protect
the creations of foreigners).
They wrote up other benefits to business in the course of
providing benefits to everyone, and vice versa:
such would be a prohibition against denial of the writ of habeas corpus;
a provision for a national bankruptcy law;
a power to fix and control the currency;
a power over citizenship, immigration and naturalization;
jurisdiction over the post offices and standards of
weights and measures; and the prohibition
of legislation that would increase the penalty for a crime
ex post facto (after the dastardly deed was done).
They provided for a jury in all criminal cases of
any consequence, and allowed it in civil cases.
They tightly defined the requirements of proof of treason and
they forbade bills of attainder to restrain executive and
congressional persecution of a man's family..
They liked the existing system of handling the territories
and admitting new states and kept the jurisdiction in the
hands of Congress. They did not ask opinions from the
vast frontier areas.
The several tiny cliques within the top elite of the
Convention managed to get together on all of these
matters and then went out to the hustings and legislative
halls and achieved national agreement. Yet the
leaders of the convention were almost continuously pessimistic.
In retrospect, their victory does appear to have been miraculous.
Most Americans, even of the limited
electorate of the day, really did not want
the Constitution, or wanted it only with some singing clauses
that they believed such constitutions were designed to carry.
A number of things happened that they did not want,
most of these coming later. The matters that escaped their
attention, or were deliberately avoided, or that they took up
gingerly and dropped as explosive, were numerous and
revealing in their entirety. For instance, once they saw
how heated an issue it was, they gave up any interest in
a reform of the electorate that would have made it
The electoral college did not work at all as expected;
all too many candidates for the offices of President and
Vice-President appeared after the first round.
Political factions began to narrow the choice
of the "best men" of the country. The Electors had little to commend
them as sage nominators; they were ordinary politicians or their
friends. Worse, two men running together were
likely to tie or emerge with the wrong man, that is,
the Vice-Presidential candidate of the group getting
more votes than the Presidential candidate.
(So this waschanged by the Twelfth Amendment in 1804.)
Still, very soon, Electors were entirely bound by
public promises to a given Candidate.
So the complicated machine became
The Framers did not foresee the extent to which democracy
"in spirit" would take over the executive branch, or the
extent to which the interest groups would not coalesce
even when the public interest would seem to demand unity,
as in the case of a foreign threat, or the
extent to which State powers, relative to the
Federal powers, could become greatly reduced.
On the other hand, they built the defenses of the States of
small populations so firmly into the Constitution
(in the Senate, for example), that it became impossible to readjust an
imbalance of representation. The Framers could not, of course,
foresee some social changes - the reduction of agriculture to
2% of the work force from over 90%,
the many difficulties in local government that came
from letting these be the creatures of the States solely; the
Frankenstein's monster of the President's war powers; the
growth of governmental employment to one-sixth of all jobs; the
power of sectionalism in the Senate to keep the
country eternally divided; and more.
The Constitution was to change markedly by means
other than formal amendment. Several of the amendments were
adopted, too, in order to help get the Constitution
itself adopted in the first place, while other amendments were
imposed upon the Southern States under duress and
had to wait for political changes to be enforced.
Various amendments were adjustive and technical.
Such was the changing of dates for assumption of office.
A couple of amendments were responses to the obstinacy of the
Supreme Court on social issues, permitting a
federal income tax, for example. One,
prohibiting most uses of alcohol, was repealed after a
dozen years. Late in these pages, we shall reveal more fully
the futility of the amendment process.
Whereas the Framers were sensitive to the potential interests of
merchants, large planters, and politicians, they
seem in retrospect to have been calloused in regard to the
poor, the debtor, the small farmer, the widow,
the illiterate, the aged, the prison inmates, women,
children, Blacks, Indians, indeed just about
everyone else in the population except the top five percent or so.
Their perspective on the population was narrow.
If, as political animals, the Framers had
sympathetic feelings for the aforesaid 95% of the
people, they would condense into a wishful theory that
whatever they might provide for the five per cent
would trickle down to the rest.
Hardly any section of the Constitution was
directly and intentionally beneficial to the lower
majority of the population. A long list of
serious problems, most of which were continually
flaring up, were not engaged. Among them would be:
* The continual destruction of Indian nations
* The inevitable visibly approaching direct egalitarian democracy
* The halting of slavery and indentured service
* The conservation of the union against potential
State nullification and secession
* The growing real inequalities of States, yet the equal national power
* The great land frauds and conspiracies going on at the time and
* General discrimination against the western regions of the States
* The epidemic corruption at all times everywhere
* A mechanism for preventing continual land and sea
free booting and gangsterism
* The suppression of freed Blacks
* The suppression of free workers by wage fixing, strike-breaking, and
* The advancing deterioration of soils and forests in
old and frontier areas.
* The high incidence of personal violence and crime
* The symbiosis of special interest groups with every political office
* The lack of uniformity of state laws on common problems like
waterways, and crime and punishment
* The conflict of libel law with freedom of expression
* The neglect generally of public education, scientific study, and
* The rampancy of factionalism, parties, and mafia-like conspiracies,
ranging up to treason
* Ignoring of all problems of women and their very existence (Among
the 85 Federalist papers was only a single mention of women, in #6,
where the intrigues of courtesans and mistresses were raised as a
* Absence of a federal general police power to back up the given
* Rapidly growing unplanned cities and urbanism (Tammany Hall was
founded within a month of the effective adoption of the Constitution.)
* Little concern with the development of inventions of the approaching
steam age (a group of delegates ventured to a demonstration by John
Fitch of his newly invented steamboat.)
* Corrupt election processes in the States or need to provide clean
elections for Congress
* Apparent unconcern with potential corruption of ordinary federal
The Framers who were slave-holders or connected with the slave
trade were not the worst of the lot;
still, the three provisions that dealt with African-Americans were
contemptible. One called specifically -
in a document of General Principles -
upon the States to return to each other any
refugees from slavery or bondage.
A second permitted specifically (again) the
slave trade to go on for another twenty years
before permitting Congress to ban it.
(This guaranteed another biological generation of
Americans to be born and raised in the endorsement of the
slave trade and of profits for the New England and
South Carolina slave-traders, and a cost-cutting
supply of humans for the Southern plantation.)
The third was inserting into the method of apportionment of
congressional seats and direct taxes a provision,
that all the free and bound population except
untaxed Indians, be counted, but only
"three-fifths of all other persons."
James Madison in Federalist #54
justified this compromise between North and South,
and explained that the Constitution considered them
"as debased by servitude"
so that they were not truly persons;
they were "inhabitants," but "divested of two-fifths of the man."
Thus the Framers went out of their way to
appease the Southern delegations - yet, ashamed
perhaps, or wary, they did not mention the word
"slave" in the Document at all.
The Constitution that came out of Philadelphia
helped the collected ruling elites of the thirteen States
to hang on to most critical powers of government and
to prosper economically. The Framers did not
speak with the specific voice of Adam Smith, but
they were similarly inclined. They felt for the most part that
by guaranteeing the success of the well-to-do
through the control of the power of the commonwealth
they would assure the same class, which they saw clearly as a
small minority, of high standing on the other value indices of
respect, education, and personal well-being.
To put a good face on the Document and their work,
the Framers discussed how to go about presenting
it to the public. An indication of unanimity was important.
Yet it had not been unanimous at all.
Some of the members refused to sign their names.
With Gouveneur Morris instigating him, Benjamin Franklin
suggested that the form declare:
"Done in Convention,
by the unanimous consent of the States present....",
and with this, all but three of the forty-two members then
present signed the Constitution. Five hundred copies of the
document were printed and distributed to those with
"a need to know" around the country.
The Framers believed that they might get the Constitution
adopted if they could avoid the stipulation of a unanimous approval of the
States. They probably could not do so if they turned it over to the
existing Articles of Confederation Congress to
vote on (as States, not as free representatives),
or if they asked the Congress to give it over to
the mercies of the State legislatures, most of
whom were under the influence of localists,
independent farmers, and debtors.
Hitherto, in violation of their instructions,
they had reconstituted the government;
now they by-passed an important faction of both the
Congress and the State legislatures by asking
Congress to ask the States to call special conventions
to debate and vote on ratification. Remarkably,
both institutions dutifully responded, and the conventions
were called under special elections. This by-passed the
existing networks of statehouse politicians;
it allowed the Federalists to bring to bear all of
their social, financial, political, and propaganda forces in a
one-time-only battle for ratification.
Furthermore, by voting to pass along the Constitution to the
States, the Articles Congress in effect was granting the
right of the Constitution to be approved by a vote of
nine of the thirteen States (soon fourteen with Vermont,
which had been playing a semi-treasonable game with the
British to become Canadian), foregoing the principle of
unanimity that was part of the Articles constitution.
Moreover, the States, by setting up their individual
ratifying conventions, were agreeing that the Constitution
should take force by a vote of less than unanimity.
Now the battle was joined. The arena was immense,
the whole of the United States from Maine to Georgia,
in town and country. Every weapon of propaganda and
agitation could be employed. Every interest and
individual could enter the fray. Every kind of
social issue could be introduced as relevant to the
approval or rejection of the Constitution.
The economic division between poor and well-to-do was
important enough to bring defeat to the Constitution
had it not been for the limited suffrage. For example,
in 123 counties where the average dwelling
house value was $100 or more,
69% or more turned in a "yes" vote, whereas
158 counties where the average dwelling
value was under $100 provided
"yes" votes of 47% or less.
Generally, those eligible to vote were such as voted for the
State legislators, a minority of White males.
It is astonishing how close the anti-Constitutionalists
came to victory, even among the delegates chosen
by these voters. Study upon study has shown that a
majority of adult White males in the country were
against the Constitution. A plebiscite even among
the restricted suffrage-holders would have defeated it.
The first ten amendments may be said to owe their
existence to oversights and faults of the Framers,
who were impelled by a fear of public opinion in the
upcoming conventions. Their very existence shows how
unpopular was the work of the men at Philadelphia,
regardless of Washington, Franklin, and Company.
In the privacy of the Convention hall, they talked about a
Bill of Rights, but persuaded themselves that
a government of strictly delegated powers lacked the
power to destroy liberties and rights: ergo,
there would be no need for them. It was a case of men
reasoning themselves proudly into a hopeless position.
Even before they exited the hall, they had the
uneasy feeling that they must acquiesce to some set of
amendments if the Constitution were to be ratified.
James Madison, always careful, carried
a list of possible amendments with him.
Polemics of ratification were fairly narrow, but
also informed, and on a high practical and legal level
on both sides. The most famous disputatious
material consisted of the 85 Federalist
essays composed by Hamilton, Madison and Jay.
Richard Henry Lee's Letters of the Federalist Farmer were
an able presentation of the position of Anti-Federalists.
Innumerable tracts and posters appeared - not so
reasonable. Dirty tricks abounded in the election and
organization of the convention delegates.
Bribery was common - whether of
legislators, voters, delegates, or press.
Professor McMaster wrote a century ago
during a peak period of corruption and reformism,
"In all the frauds and tricks that go to make up the
worst form of politics, the men who founded our state
and national governments were always our equals, and
often our masters."
False promises were made; John Hancock,
whose handwriting was so conspicuous among the signatures to the
Declaration of Independence, was inveigled to
change his stance by assurances of support to be Governor
of Massachusetts, or Vice President, or, who knows,
President, in the event that Virginia failed to
ratify the Document. With men like Patrick Henry
against it in Virginia, the Federalist situation there was critical.
So was it in New York, where five weeks of
all-out efforts turned a hostile assembly into a
barely favorable majority.
Within a year of its adjournment, the Constitutional
Convention's work won approval, first of the requisite nine States,
then quickly of Virginia and New York, then the
laggard, North Carolina, and finally Rhode Island
(May 29,1790, under threat of economic sanctions).
Seven States ratified while either
requiring or demanding amendments
- called "Bills of Rights," though not entirely such.
In no State was there a resounding victory for the Constitution.
It was very much a minority document.
The "if..then proposition" is sometimes justified, sometimes heuristic,
often entertaining - so we may present it occasionally:
If the total population had been represented
in the Convention, then a monumental struggle
would have occurred, but, if the Convention had held
together to the end, the results would have been vastly different and
possibly large segments of the tragedies of the nation -
social, military, economic, cultural, affectional -
over the next two centuries would have been avoided.
Perhaps the USA would have become a
welfare state a hundred years earlier!
Doubts of the intrinsic ability of the Constitution
to survive its infancy were assuaged by the public response.
In all the towns, parades were held to celebrate the ratification.
(Americans cherished every opportunity to parade.
The United States was already a public country, wide-open
to crowd behavior. That the people were largely of lowly origins
heightened the need and pleasure at public displays of
their collective identity as "the People.")
Federal processions and celebrations followed
the approval of the Constitution in the several states.
The bannered "Ten Toasts of Philadelphia" symbolized all.
Actually obstreperous, hostile, and vituperative elements
marched in counter-parades in every State.
Parades continued to be a major part of every
voluntary civil manifestation for 150 years,
then began to diminish when newsreels, radio, and
television took over and people spread out
over the countryside and the world on holidays, and
more of them became skeptical and derisive.
Furthermore, the demands of all kinds of groups,
some of them highly controversial, for their own parades,
put the whole idea of parade at risk.
To which add the recent unpopularity of military might,
the staple of traditional parades, as the
symbol of the public mood and national prestige.
America's Constitution was imitated around the world.
It was progenitor of all national constitutions.
Efforts at revising generally or rewriting the Constitution
have never been able to get off the ground. Were they to
succeed, considerations such as those
appearing in the last chapters of this book
might help set the agenda.
The Constitution, and all laws and treaties pursuant to it,
were declared to be the "supreme law of the land."
Any law or action or judgement of a State
contrary to these would be null and void.
As law, it induced compulsion and habitual behavior
in leaders and people. As compulsory habit it fostered
similar and imitative behavior of many kinds -
in its domestic habitués, in other governments,
domestic and foreign. It emerged from and gave its color to
the broad stream of Living History. It carried forward
its influences more than most other habits,
laws, practices, ideas, and processes that took place
earlier or later. Compared with most other actions and
processes, it became a behavioral constant of large scope and domain.
Considering the Americans' penchant for willfulness,
unlawful behavior, violence and disorder,
the Constitution, with all its faults, helped the center to hold.
A living historical process affects national character.
It is most important that people believe that they are
living under a constant faithful regime and
such has occurred with the Constitution. All of its
harrowing experiences, including the Civil War,
were forgotten; it remained a kind of perpetual virgin.
It has changed a great deal - evolved, some
say, who would like to make the slightest questionable
change a product of the wonderful
immanence of nature.
The Framers would be shocked and dismayed to
observe the operative significance of their words today.
Perhaps amused. ( Eastern Seaboard
respectable types did not laugh then as they do now.
The pandemic American haw-haw probably originated
with people unrepresented among the Framers.)