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Seeking the Middle: Balancing Theory and Reality in the American Republic 1776-1787

ByAlexander Berman

August 2012

Submitted in partial fulfillment of the requirements for theMaster of Arts in History

Dual-Degree Program in History and Archives ManagementSimmons College

Boston, Massachusetts

The author grants Simmons College permission to include this thesis in its Library and to make it available to the academic community for scholarly purposes.

Submitted by

Alexander Berman

Approved by:

______ Stephen R. Berry Katherine WisserAssistant Professor Assistant Professor

©2012, Alexander Berman

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Table of ContentsAcknowledgements:.......................................................................................................................................3Chapter 1- Introduction..................................................................................................................................4Chapter 2- Historiography.............................................................................................................................7Chapter 3- Beginnings.................................................................................................................................24Chapter 4 - Articles of Confederation and the State Constitutions..............................................................33

Part I: Articles of Confederation..............................................................................................................33Part II: State Constitutions.......................................................................................................................42

New Jersey...........................................................................................................................................45South Carolina:....................................................................................................................................46Pennsylvania:.......................................................................................................................................48Massachusetts:.....................................................................................................................................49

Part III: Conclusion..................................................................................................................................51Chapter 5 - The Federal Constitution: An Analysis.....................................................................................53Chapter 6 - Madison and Jefferson..............................................................................................................67Chapter 7 - Conclusion................................................................................................................................76Bibliography................................................................................................................................................79

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Acknowledgements: First and foremost, I would like to thank Professors Stephen Berry and Katherine Wisser

for being patient, understanding, and willing to read my thesis several times. I’ve got to thank

Kate Leach and Bradley for cracking the whip and ensuring that I stayed on task. And finally,

I’ve got thank Maggie for being so patient through this whole process.

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Chapter 1- IntroductionOn the state and national stage, early American politicians continuously sought to create

a balance between republican theory and real world application. In 1781, the Articles of

Confederation established the first political body expressly designed as a governing body.

Although theoretically sound, the political structure established by the Articles did not provide

an adequate structure for day-to-day governance. At the 1787 Constitutional Convention,

Federalists and Anti-Federalists agreed on this point. Their opinions diverged as to whether or

not responsibility for these duties belonged at the state or federal level. This disagreement

stemmed from a general paranoia that any national government might (or might not) morph into

a tyrannical entity, like the British Parliament. At the same time, many politicians agreed that the

Confederation Congress did not represent an ideal solution. Any solution necessitated a delicate

balancing act, not only between Anti-Federalist and Federalist aspirations, but also between

theory and reality. The 1787 Federal Constitution represented a mostly successful effort at

constructing and maintaining this balance between republican theory and the demands of

everyday governing.

In 1781, the Articles of Confederation created a Congress for the thirteen states. For six

years (1781-1787), the Congress worked at achieving its objectives with limited legislative

success. Only a few pieces – Thomas Jefferson’s Land Ordnance of 1784 and the Northwest

Ordinance (1787) – highlighted an otherwise chaotic and legislatively unproductive time period.

The primary problem lay with the political structure created by the Articles of Confederation.

Each state retained ultimate responsibility for its own well-being and only assumed responsibility

for the other states if that particular cause fit with their interests. Unfortunately, the

Confederation Congress did not possess a tool-set powerful enough to balance the various states.

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Voluntary participation by the states and no mechanism for financial independence ensured that

the Confederation Congress could never challenge the individual states’ authority or

independently mediate any disputes between states. Rather it seemed that the Articles of

Confederations authors wanted Congress as the international face for the American Republic, not

its governing body. Many feared that granting it additional powers, such as compulsory

participation or independent taxation, would eventually result in a tyrannical and non-republican

government. They did not harbor the same reservations in foreign relations. The Articles of

Confederation codified this notion by explicitly granting the Congress precedence in

international relations, while also banning the individual states from maintaining independent

political ties with foreign nations. The idea behind this dichotomy was that while an internally

powered central government could be dangerous, the young republic needed to present a unified

front in a world dominated by tyrannical governments.

Since the Articles of Confederation strictly limited Congresses powers it could not act as

a more robust and involved government. American migrations into upstate New York, the Ohio

River valley, interstate commerce, and state boundary conflicts forced Congress into an awkward

position. Theoretically, each state represented an independent republic voluntarily participating

in a larger political union. As a result, each state drafted a unique Constitution as befit an

independent political unit. The Articles of Confederation reinforced this interpretation by

creating Congress as a meeting place for these different republics. In reality, even the largest

states (such as New York or Virginia) did not possess adequate resources (financial or

population) for maintaining true independence. Thus, the different political bodies within the

American Republic found themselves requiring outside assistance. However, Congress had never

been intended as an independently active governing body and could offer little help without a

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super-majority of the states’ acquiescence. This limited government fit with the Founders’ initial

vision of the American Republic as a successor state to Greco-Roman political tradition.

Experience proved that these ideals did not perfectly match up with the reality. Specifically, the

reality that no individual state could sustain independently itself and that managing interstate

relationships necessitated a stronger body than the Confederation Congress.

In this way, 1787 represented a watershed year for the American Republic. In

September 1786, twelve representatives from five states (New Jersey, New York, Pennsylvania,

Delaware, and Virginia) met in Annapolis with the goal of lowering barriers to interstate

commerce.1 A combination of limited state participation (some did not arrive in time, and others

did not participate) forced the delegates to recommend a larger convention “to advance the

interests of the union, if the States . . . would themselves concur . . . to meet at Philadelphia on

the second Monday in May next, to take into consideration the situation of the United States.”2

This report indicated that the delegates intended to use the proposed 1787 convention as a

vehicle for a larger agenda.

On May 29, 1787 James Madison presented the Virginia Plan as fifteen resolutions to the

assembled Constitutional delegates by Virginia governor, Edmund Randolph. The document’s

presentation at the conventions start set the tone by outlining a substantially different

interpretation on balanced, effective, and republican government. The fifty-five convention

delegates approached the Constitution’s construction with similar objectives, but very different

methodologies and theories. These theories primarily regarded the appropriate location for

political gravity in the American Republic. Anti-Federalists argued that central governments

1 During the 1780s significant tensions existed between states with major commercial ports, like New York and Pennsylvania, and those without (such as Delaware and New Jersey) due to tariffs enacted by the port states. For more information see Chapter III Part II. 2 Annapolis Convention, The Report of the Annapolis Conference (1786) URL: http :// www . usconstitution . net / annapolis . html

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inevitably collected too much power for themselves at the state and citizens’ expense. Thus they

argued that the states should retain their pre-eminent statuses. Federalists generally argued that

the Confederation Congress’s reliance upon the states for validation had been its undoing. Rather

than hindering state and individual rights Federalists conjectured that a central government,

empowered with taxation powers and defined duties, would actually benefit all parties.

Ultimately, the Federalist vision prevailed because no valid alternative existed. Even ardent Anti-

Federalists, such as Richard Henry Lee, acknowledged that the Confederation Congress’s failure

and the need for reform, although their fears and general opposition to the document did not

abate after its ratification.3 Nevertheless throughout this process Madison’s Virginia Plan, and

afterwards Federalist essays, framed and controlled the debate surrounding the proper structure

and implementation of a federal government.

Chapter 2- HistoriographyHistorical writings on the American political system’s development are remarkable

because although succeeding generations directly alter, refute, or build upon a previous

generation’s analysis, the source materials remain largely static.4 During the 20th and early 21st

centuries, American historians have moved, intellectually speaking, from embracing a

progressive historical interpretation (1920s-1950s) to the Neo-Whig intellectual movement

(1960s-1990s), and finally the Neo-Progressive movement (1990s-). All of these movements

used a particular ideological slant as the primary method for explaining the Founding Fathers

political motivations.

3 Richard R. Beeman and Stephen Botein, Beyond Confederation: Origins of the Constitution and American National Identity (Chapel Hill; University of North Carolina Press, 1987), 298-299.4 Although new documents are uncovered or released for general consumption periodically, the huge variation in Constitutional analyses over the last 230 years alone proves this point.

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Most historians acknowledge James Madison and Thomas Jefferson as key forces behind

the Federal Constitution. Madison’s Federalist essays, most notably Federalist no. 10, outlined a

specific republican vision centered on several key principles: minority protection against

majoritarian tyranny, multi-tiered governmental structure, guided popular participation in

government, and a balanced political structure. Madison specifically cited protection for the

minority against the majority as a key issue and an important reason for ratifying the

Constitution. To Madison, the flat government structures in Pennsylvania represented a

dangerous experiment in majoritarian tyranny and populism. Madison and, to a lesser extent,

Jefferson wrote that allowing the majority (general population) unfettered access to political

power would lead to certain groups’ persecution. Although both men vociferously supported the

individual citizen’s rights, they also believed that only a rich man could be trusted with political

powers. This attitude was reflected in some state constitutions including New Jersey and South

Carolina. Most political figures acknowledged that widespread suffrage for propertied

individuals5 made sense; they also agreed that limiting the candidate pool for political office to

society’s upper echelons would help preserve republican virtue since these men represented the

most “disinterested class.”6

During their extensive correspondence Jefferson and Madison espoused complimentary

and sometimes conflicting theories on good governance. Both men agreed on the need for a

strong, fair government, but disagreed on some details. This diversion centered on Jefferson’s

concerns regarding executive term limits and the need for a national Bill of Rights. Jefferson

wrote to Madison that he did not like “the [Constitution’s] omission of a bill of rights,” which he

5 The idea being that propertied individuals had a definite stake in the political process. This same interest was not necessarily shared by renters, women, children, and or freed slaves.6 They defined “disinterested” as having the financial resources necessary for full time devotion to politics. Ironically, many of the leading “disinterested” individuals also carried significant financial debts and responsibilities.

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described as “what the people are entitled to against every government on earth.”7 Jefferson’s

second objection was “the abandonment in every instance of the necessity of rotation in office,

and most particularly in the case of the President.”8 Ultimately, Jefferson concluded that a

government unhindered by term limitations would inevitably feed into elected official’s

perpetual reappointment. He argued that, rather than destabilize, annual elections would prevent

disorder by “render[ing] them uninteresting.”9 This clashed with Madison’s understanding that

annual elections had been a key destabilizing factor in the Confederation and state governments

prior to 1787.

Madison did not directly reply to Jefferson’s concerns. His later Federalist Essays

demonstrated his conviction that the proposed Federal Government would buck historical trends.

The reason for his belief being that the proposed government derived its legitimacy and power

from the citizenry rather than a minority aristocracy. Madison’s trust in the citizenry ran contrary

to republican theory, which stipulated that only a disinterested party could be trusted with

political power. Instead, Madison theorized that self-interest would prevent a tyrannical

government from arising since the electoral process forced representatives to justify their actions

every electoral cycle. Ultimately, the extended correspondence between the two men indicated

that they interpreted the monumental task confronting the American Republic as striking the

balance between theoretical desires and reality.

Historians remain divided, not only over whether or not the American political system’s

development centered on key individuals, but also the individual or group motivations.

Progressive scholars, such as Charles Beard in An Economic Interpretation of the Constitution of

7 Thomas Jefferson and James Madison, The Republic of Letters: The Correspondence between Thomas Jefferson and James Madison 1776-1826 Vol. One 1776-1790, Ed. James Morton Smith (New York; W.W. Norton & Company, 1995), 512-13.8 Jefferson and Madison, 513.9 Jefferson and Madison, 513.

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the United States argue that the elite’s socio-economic concerns, not philosophical or historical

ideas led to the Constitutions creation. Beard’s Economic Interpretation viewed the Constitution

as an attempt by the land owning elite to protect their investments and status. He saw the

Constitution as a “counter-revolutionary” document designed to strictly manage popular

participation and power in government. As a result, he saw the resulting political system as

biased against the lower classes. Beard’s work seems slightly anachronistic today, it reflected the

time when it was written. During the early 20th century, political rhetoric focused upon

economic inequity as a central motivator in society.

Progressive historians, like Charles Beard, discarded the possibility that the Founders and

Framers had real philosophical concerns and instead sought out class based economic

motivations. Although Beard’s work is an important start for any 20th century historiographical

study it has largely been discredited as a scholarly work. Peter Novik wrote that the primary

reason for not utilizing Beard’s work as an academic reference was the association between his

analysis of the Constitutional Convention and his relativist doctrines. More specifically, post-

World War II historians, or Neo-Whigs, disputed the Progressives’ portrayal of “the events

leading up to the Federal Convention of 1787 as the latest in a long series of struggles between

rich and poor, farmers and merchants, debtors and creditors.”10 Simply put, the Progressive

historical interpretation was eventually rejected by historians because it implanted a class-

consciousness and conflict into a time where those concepts did not exist in their modern

construction.

Gordon Wood took a rather different stance with his works, The Creation of the

American Republic 1776-1787, and The Radicalism of the American Revolution. Wood belonged

10Peter Novik, That Noble Dream: The “Objectivity Question” and the American Historical Profession (New York; Cambridge University Press, 1988), 335-336.

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to the Neo-Whig movement, which directly contrasted the previous Progressive interpretation on

the early American Republic and its central use of economics as a trigger. Instead, Wood and the

Neo-Whigs focused upon the idea that the American Revolution, Articles of Confederation, and

the Constitution reflected a vast, organic yet also individually driven philosophical movement.

This approach starkly contrasted the Progressive focus on economic reasons. Instead, the Neo-

Whig movement centered on a more philosophical approach; in this case common good,

republican virtue, and political balance defined the Neo-Whig approach. Wood described the

entire period (1776-1787) as a movement towards realizing these ideas. Rather than relying upon

1 or 2 central figures Wood postulated that the movement developed relatively organically and in

response to events, such as the Boston Massacre, Intolerable Acts, or Patrick Henry’s pamphlet:

Common Sense. Ultimately, the principal difference between Progressive and Neo-Whig thought

focused upon the balance of power within the political system. Progressives saw the American

Revolution, Confederation period, and in Beard’s case, the Constitution as a fundamentally

unequal struggle between the rich elites and the poor masses. Progressives postulated that the

economic minority established a tyranny over the majority. Neo-Whig historians, like Wood,

argued against this approach. Wood emphasized the Founders continuous quest for a structure

that would support, reinforce, and perpetuate virtue, justice, and above all, balance. In many

ways, the Neo-Whig philosophy reflected old Greek and Roman ideas on the “just citizen” and

saw the American Republic as a successor state.

Wood’s Creation of the American Republic emphasized this philosophical approach to

the American political systems development. He started the book by comparing the American

political systems development with its British predecessor. At first, the “seeming theoretic

excellence of the English constitution’ consisted precisely in . . . ‘that equipose between the

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respective branches of the legislature.”11 This balance remained a goal for American politicians

throughout the early American Republic period. As the American political system developed it

evolved past merely copying the British Parliament. Despite the growing distance between the

two political systems, Americans did not lose their focus upon what constituted a good

government.

Richard Price, a prominent British dissenter wrote that “[g]overnment in which the

people had a proper share . . . therefore, does not infringe liberty, but establish it. It does not take

away the rights of mankind, but protect and confirm them.”12 Wood focused upon this brand of

old Whig philosophy. He wrote “a tyranny by the people was theoretically inconceivable,

because the power held by the people was liberty, whose abuse could only be licentiousness or

anarchy, but not tyranny.”13 Despite general agreement on this subject, American politicians

could not agree upon the most appropriate structure for enabling government by the people,

while simultaneously preventing the licentiousness or anarchy that could accompany it. Some

wrote that “only a single-house legislature could make the “the interest of the legislator and the

common interest perfectly coincident.”14 Others believed that a bi-cameral legislative body

represented the most balanced and fair legislative body for the American republic. This divide

continued all the way through to the Constitutional Convention when Madison and Jefferson’s’

plan provided the solution.

Wood wrote that “the Constitution was a single issue in a complicated situation,” which

ultimately boiled down to one “between aristocracy and democracy.”15 Because “too many of

them [Anti-Federalists] were state-centered men with local interests and loyalties only” they

11 Gordon Wood, The Creation of the American Republic (Chapel Hill; The University of North Carolina Press, 1968), 20.12 Gordon Wood, 6213 Gordon Wood, 63.14 Gordon Wood, 231.15 Gordon Wood, 485.

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lacked the “social and intellectual confidence”16 needed for opposing the Federalists. More

importantly, the Anti-Federalists lacked a coherent alternative to the Madison’s vision. They

could pick apart single issues, but not the entire document. For this reason, the Federalist vision

for proper government won the day. Wood’s arguments in the Radicalism of the American

Revolution supported this idea and reinforced the republican school of thoughts emphasis on

virtue and republicanism.

In Radicalism of the American Revolution Wood further asserted “the republican

revolution was the greatest utopian movement in American history. The revolutionaries aimed at

nothing less than a reconstitution of American society.”17 Rather than merely seeking to improve

upon the British Parliamentarian model, Wood described the American Revolution as bringing

“to the surface the republican tendencies of American life. The ‘suddenness’ of the change from

monarchy to republicanism was ‘astonishing.’18 Wood pointed out that the American Revolution

revealed a startlingly egalitarian tendency in American political culture. From the start, the

framers of the U.S. Constitution sought to extend and preserve this egalitarian tendency. The

political relationship between the states and Congress represented a pressing concern for some of

the Framers. For them, Congress possessed too little power and the states too much. Federalists

worried that allowing the states so much power increased the likelihood that states would enact

preferential statutes for their residents, while discriminating against non-residents. Ultimately,

they reasoned that these legislative activities would poison any attempts at fostering a national

identity and potentially endanger the union. As a result, the Constitution sought to protect

personal liberties for all its citizens by establishing a universal model for political participation in

16 Gordon Wood, The Creation of the American Republic (Chapel Hill; The University of North Carolina Press, 1968), 486.17 Gordon Wood, 229.18 Gordon Wood, Radicalism, 169.

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the federal government and abolished most barriers to interstate activities; at the same time the

document also preserved the existing political arrangements within the individual states. The

obvious hole in this argument was the absence of a national Bill of Rights from the 1787

Constitution.19

Despite these goals, historians, such as Gordon Wood, point out that not all individuals

saw this relationship between the states and the federal government as necessary or even ideal.

Many “Anti-Federalists” saw the model outlined in the Virginia Plan and Federalist essays as a

creating a fundamentally unbalanced and anti-republican political structure. Citing Parliament as

an example, many Anti-Federalists claimed that any strongly centralized government inevitably

courted corruption by concentrating all power within itself. Additionally, Anti-Federalist pointed

out that institutions such as Parliament generally subscribed to “virtual representation.”

According to this system, each Parliamentarian member represented ALL British subjects and

not a particular body. Therefore they were not accountable to any single constituency. Many

Anti-Federalists, notably Robert Sherman of Connecticut, argued for diffusing as many

responsibilities as possible away from the central government, and towards the states. This

method would ensure that government reflected its citizen’s opinions and interests. Wood argued

that these political conflicts reflected the pervasive uncertainties in American political culture

and reinforced the Neo-Whigs historical analysis.

Forrest McDonald’s Novus Ordo Seclorum: The Intellectual Origins of the Constitution

formed the intellectual basis for more radical Neo-Whig arguments. According to McDonald, the

Constitution fulfilled the long term necessity of “institut[ing] new Government, laying its

Foundation on such Principles, and organizing its Powers” in a way “most likely to effect their

19 The Bill of Rights was completed in 1789 and ratified in 1791.

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Safety and Happiness.”20 Novus Ordo Seclorum focused upon the development of American

political society and its progression towards creating the Federal Constitution. He described that

process and the Constitution itself as a running compromise between Federalists and Anti-

Federalists.

McDonald noted that many Anti-Federalists feared that a strong central government,

rather than balancing the system, would fundamentally corrupt it. This fear ensured that many

Anti-Federalists remained extremely skeptical even after the Constitutional Convention and

states’s subsequent ratification of the Constitution. One Anti-Federalist, Samuel Osgood wrote

that “our Danger lies in this-That if permanent Funds are given to Congress, the aristocratical

influence . . . will finally establish an arbitrary Government in the United States.”21 McDonald

wrote that “the republican ideologues were anxious to check the excess of democracy in the state

government by strengthening the central authority,”22 with an added insistence on a bill of rights

to guarantee certain liberties.

McDonald’s argument reflected his observation that both groups wanted to avoid creating

an overwhelmingly powerful state or federal political structure; simultaneously, he argued, they

sought to curb any aspirations for democracy. Specifically, the Framers feared a tyranny by the

majority and the chaos or “excess of democracy” that had occurred during the Confederacy

period. To this point, McDonald wrote that the Constitution “thwarted the [population’s] general

will” as a “matter of design.”23 In the end, McDonald wrote, the Constitution represented the

“culmination of a tradition of civic humanism that date back more than two millennia and of a

common-law tradition that goes back many centuries.”24 However, he also stated that, by 1787, 20 Forrest McDonald, Novus Ordo Seclorum: The Intellectual Origins of the Constitution (Lawrence; University of Kansas, 1985),21 Forrest McDonald, 171.22 Forrest McDonald, 202.23 Forrest McDonald, 201.24 Forrest McDonald, 291.

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the Constitution’s ideological, philosophical, and political foundation was already “crumbling."

What he meant was that although the Constitution derived its inspiration from classical ideas, the

societal infrastructure that had supported these ideas, such as the divine right of Kings, or

aristocratic influence, was being replaced by something new. So although the Constitution built

upon previous traditions, it also represented a significant departure from those same traditions.

Its most radical innovations centered on creating balanced, codified national government. This

same government placed its ultimate power base among the citizenry, while also creating single

access point into the Federal Government. With this idea in mind, McDonald concluded that the

Framers achieved their goals. The Constitution has survived for 225 years because the Framers

constructed a government from “materials prescribed by the ages” and codified a pluralistic and

balanced political society. Finally, they wrote the Constitution “loosely enough so that it might

live and breathe and change with time.”25 Today, this approach has largely given way to a more

radical and ideologically charged interpretation of the period although McDonald’s book laid the

groundwork for these later works.

Newer historians, like Marc Kruman, argued against the points raised by Wood and his

fellow Republican thinkers. Kruman’s work, Between Authority and Liberty: Constitution

Making in Revolutionary America argued that the changes occurring in the United States on a

local level inevitably led to the need for an effective national government. In this way, Kruman

offered a direct counterpoint to Gordon Wood’s Radicalism argument. While Wood wrote that

the Founders viewed the state legislatures as the ultimate expression of popular sovereignty.

Kruman took the opposite viewpoint and postulated that even before the Federal Constitution the

Founders distrusted the state legislatures’ monopoly on political power. As a result, Kruman

described the Confederation period as a movement towards creating a balanced and nationally

25 Forrest McDonald, 293.

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focused political structure. He postulated that as states amassed more political and economic

power, the balance between local and national political interests became increasingly skewed.

Anxious to protect their power, he argued, many state constitutional conventions remained

hyper-vigilant against even the slightest whiff of federal tyranny. They believed that “all men

who wielded government power were potential tyrants.”26 Thus they attempted to create systems

that did not abandon the “idea of a common good, but maintained that self-defense against

tyranny by voting was the only way to secure the common good.”27

Kruman wrote that although the men writing the various state constitutions wanted to

empower the people, many also had significant fears about popular sovereignty and its potential

impact upon the political culture and structure. Above all else they sought rational and stable

governments, not governments that could be changed on a popular whim. As with all rules, there

are exceptions, such as Pennsylvania’s 1776 Constitution, although the 1790 Pennsylvania

Constitution indicated that its citizens saw a move away from total democracy as a positive step.

Throughout this period, the Founders and Framers wrestled with two priorities: protecting the

citizenry's political rights and creating a working government for balancing out any tyrannical or

otherwise un-republican ideas.

Michael I. Meyerson’s Liberty’s Blueprint: How Madison and Hamilton Wrote the

Federalist Papers, Defined the Constitution and Made Democracy Safe for the World followed a

similar thought process. Meyerson asserted that the arguments made by James Madison,

Alexander Hamilton, and John Jay in the Federalist Papers framed the publics’ interpretation of

the Constitution and aided the ratification process. He argued that the Federalist Essays

convinced readers that the Constitution better served their needs by providing a counter-balance 26 Marc W. Kruman, Between Authority and Liberty: Constitution Making in Revolutionary America (Chapel Hill; University of North Carolina Press, 1997), 162.27 Marc W. Kruman, Between Authority and Liberty: Constitution Making in Revolutionary America (Chapel Hill; University of North Carolina Press, 1997),[PAGE NUMBERS?]

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to the state legislatures’ intensely local focus. Ultimately, Meyerson argued that Hamilton, Jay,

and Madison did not directly aim their arguments at the state constitutions. Instead, they take aim

at the Confederation Congress and explained why a weak central authority represented a clear

and present danger to effective government. The core of their argument was that no country can

exist without a strong central government; this strong government not only balanced out the

state’s power, but also guaranteed a minimum of political standardization and rights across the

American Republic.

Although Madison is widely considered the “Father of the Constitution”28 some historians

challenge this interpretation. In his essay “Madison’s Opponents and Constitutional Design”,

David Robertson argued that the published Constitution owes its form more to Madison’s

opposition rather than Madison himself. Although Madison’s Federalist essays created a

compelling vision for the Constitution’s implementation, the document is not a purely

Madisonian creation. In fact, Robertson argued that Madison’s defeats proved more influential at

the convention. Specifically, Robertson cited Robert Sherman of Connecticut as Madison’s

primary opponent at the Constitutional Convention. By compiling a list covering measures voted

upon during the Convention, Robertson observed that Madison actually suffered more defeats

than victories during the Convention. So while Madison helped frame the debate with his

Virginia Plan and ratification with the Federalist essays, his effectiveness during the convention

itself was debatable. By one count, Robertson observed that “Of the remaining twenty-nine

disputes, the Convention ultimately adopted Sherman’s position nineteen times, and Madison’s

position ten.”29 More to the point, these votes indicated that while many individuals felt that the

Articles of Confederation had failed, they were not entirely sold on the strong central

28 Madison responded that he did not feel the title was appropriate. Rather he felt that the title “author” was more accurate.29 Robertson, 233.

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government laid out by Madison in the Virginia Plan. Operating within the narrative laid out by

Gordon Wood’s Creation of the American Republic, Robertson argued that these political

conflicts represented the continuing struggle to “define and implement republican ideals” during

the late 18th and early 19th centuries.30 More importantly, they demonstrated that although the

Anti-Federalists achieved some isolated victories they failed to present a unified alternative to

the Federalist Constitution. Thus when given the choice between the Constitution and the

Articles of Confederacy, many grudgingly supported the Constitution.

Calvin Jilson’s essay, “Constitutional-Making: Alignment and Realignment in the

Federal Convention of 1787” argued that the Constitutional Convention actually contained four

distinct phases. In each phase, the voting blocs changed depending upon the issue. For phrase

three and four, Jilson wrote that the primary issue was “the confrontation over representation . . .

was the classic battle between large states and small . . . the [final] was primarily contested

between the states of the North and South.”31 As the Convention progressed and the dominant

issues changed, coalitions shifted accordingly. However random the associations might have

seemed, Jilson wrote that these temporary alliances largely reflected the each states political

priorities regarding representation, large vs. small states, and sectional differences. As a result,

Jilson concluded that “the activities of the convention were by no means as fluid and

unstructured as past interpretations have indicated.”32 Rather these coalitions reflected political

tensions that had existed prior to the Federal Convention, but for whatever reason had not

previously congealed. Anti-Federalists, Federalists, and independents all disagreed over the

proper relationship between the state and national government. The Constitutional Convention

30 David Brian Robertson, “Madison’s Opponents and Constitutional Design,” American Political Science Review 99:2 (May 2005), 231.31 Calvin C. Jilson, “Constitutional-Making: Alignment and Realignment in the Federal Convention of 1787,” The American Political Science Review 75:3 (September 1981), 606.32 Jilson, 609.

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provided the perfect arena for testing these ideologies. Despite their differences, they ultimately

compromised and produced a document acceptable to the majority.

In 1787, no faction actively questioned that a national government would replace the

Confederation Congress. Anti-Federalists, such as Sherman and his allies, disputed the balance

of power laid out in the Virginia Plan; during the Convention itself, they disputed the model

proposed by Madison and the Federalists. Madison’s plan tipped the political scales in favor of a

federal government with mostly internal checks and balances. The ideas put forward by Sherman

sought to externalize this balance. According to Sherman, the states, not the federal government,

must balance the Federal government.33 According to Robertson, the Anti-Federalists attempted

to neuter any potentially powerful Federal government because they feared that it would fatally

disrupt each state’s political and economic integrity.

Woody Holton’s essay “Did Democracy Cause the Recession That Led to the

Constitution”34 argued that, despite many individual prejudices against any powerful national

government, economics forced the Constitutional Convention. Holton wrote that “the best known

opponents of the Constitution concurred with the Federalist’s judgment that the state assemblies

had caused, or at least exacerbated, the recession of the 1780s by yielding to grassroots pressure

for tax and debt relief.35 Later, Holton asserted that “despite their numerous regional,

temperamental, and other differences, nearly all fifty-five Constitutional Convention delegates

shared a common motive: to rescue the American economy from the clutches of the thirteen state

legislatures.36 These quotes demonstrated that although Holton’s hypothesis was similar to

Beard’s thesis, a number of key differences existed between the two interpretations. Holton’s

33 Robertson, page 23234 Woody Holton, “Did Democracy Cause the Recession That Led to the Constitution,” The Journal of American History 92: 2 (September 2005) 442-469.35 Holton, 442.36 Holton, 443.

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analysis insinuated that the Framers intentionally created a less popularly responsive

Constitution so they could adequately address the rampant economic problems plaguing the

United States. Holton never disputed that the Constitution benefited the Framers economically

and politically. Instead, he saw this benefit as a side effect of the Constitutional Convention’s

work, not its primary goal. This interpretation built upon and fleshed out Beard’s progressive

view of American history, which viewed the entire Convention as a conspiratorial power grab.

Holton wrote that the Founders’ agreement on economic issues, more than any other

issue, was the main reason for the Constitutions published form. Above all else, the Framers

endorsed the Constitution because it promised a pathway towards economic prosperity. Holton

expanded upon Gordon Wood’s portrayal of the Framers as elitist by affirming that “they were

elitist . . . at least in part because they hated [economic] relief. They believed the assemblymens’

solicitude for taxpayers and debtors had destroyed Americans’ collective credit rating.”37 To this

effect, Holton argued, that the Framers created a system tilted against the state assemblies

because they did not trust its members. Specifically, they did not trust the state assemblies

responsiveness to the voters’ demands38; many felt that this responsiveness had ruined the

Confederacy and therefore wanted to limit their impact. Even though Holton singled out

Madison as a driving force behind the Constitutional Convention, he also affirmed Wood’s

analysis that the American political system developed, not in response to individual actions or

ideas, but rather in an attempt to codify and successfully implement Republican policies and

ideas. Holton’s essay also postulated that these ideas did not exist in a vacuum; instead they

developed and coagulated in response to a severe economic crisis.

37 Holton, 448.38 In the Federalist #51 Madison argued that the primary difficulty faced by state legislatures is that they were too closely tied to the electorate. Annual elections and large scale suffrage ensured that many state legislatures remained more concerned with ensuring their reelection than focusing upon governing. Although term limitations did exist, the ability to stand for reelection so soon made term limitations largely toothless.

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For the Progressives, the Founding Fathers represented an elitist conspiracy, which aimed

at suppressing the lower classes, while preserving their own elite status. The primary issue with

the Progressive interpretation was that it imposed a contemporary value system upon the

eighteenth century American Republic. By implanting a class mentality upon the early American

Republic, the Progressives molded the time period so it fit with their modern understandings.

Ultimately, this intellectual approach proved unsatisfactory (factually and philosophically) for a

historians like Gordon Wood. Wood postulated that the American Revolution and early

American Republic represented an intellectual reaction against perceived threats to American

rights and property. In this sense, the American Revolution represented a movement to preserve,

rather than revolutionize, American society.

According to Neo-Whigs this conservatism influenced the early American Republic and

provided the intellectual groundwork for the Federal Constitution. Above all, Neo-Whigs defined

the American Revolution and the early American Republic as an intellectual movement

dedicated to preserving and protecting American rights and property. Neo-Progressives, like

Holton, disputed this conservative interpretation. Although they utilized a similar intellectual

approach to the Progressive movement, the Neo-Progressives differed because they did not view

the Founding Fathers as conspiratorial elites. Rather, the Founders were portrayed as

ideologically driven revolutionaries with an agenda that included economic stability, expanded

suffrage and increased opportunities for common people.

Although these intellectual movements had many differences there was one consistent

theme: they all allege that the American Revolution and early American Republic represented an

era dominated and shaped by ideology and economic concerns. While this perspective is true, the

extent to which real world issues drove the political developments during this time is often

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underestimated. The Annapolis Convention (1786) and the Philadelphia Constitutional

Convention (1787) were not called because of ideological problems. The Annapolis Convention

met to address interstate commercial issues, such as the conflict between New Jersey and New

York over tariffs. Ideological concepts played an important role in the Convention; but the

decision to adjourn until May 1787 resulted from both Alexander Hamilton and James

Madison’s machinations and because many delegates never attended the Annapolis Convention.

Similarly the debates over the proposed Federal Constitution did not form based solely upon

ideological differences. In many cases, economic and social issues forced the delegates into

supporting ideas they personally disliked. The resulting Federal Constitution represented not

only a particular political perspective, but also reflected the economic and social concerns raised

by Shay’s Rebellion, persistent economic conflict between different states, and a host of issues

entirely unrelated to ideological concerns. Ultimately, ideological concerns provided the

intellectual basis for Jefferson and Madison, but that events dictated the circumstances and

timing for implementing or discarding these intellectual imperatives.

Chapter 3- BeginningsThe Articles of Confederation represented the American Republic’s first attempt at

implementing a balanced, republican government. That said, many political figures, such as

Thomas Jefferson, described the Articles of Confederation as a document forged under duress

and with limited political experience.39 Jefferson’s objection represented the general consensus

that it constituted the first, not last, step towards creating a more permanent republican

39 Thomas Jefferson, The Life and Selected Writings of Thomas Jefferson, Ed. Adrienne Koch and William Peden (New York; The Modern Library, 1993), 224.

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government. The 1787 Constitutional Convention created a much more defined federal

government than the Confederation Congress. This revision closely followed the political

structures outlined by Jefferson in his Notes on the State of Virginia (1785), by James Madison

in the Virginia Plan (1787) and his Federalist essays (1787-1788). It should be noted that

Jefferson did not physically attend the Convention since he was the American ambassador to

France during this time. His impact was most felt in the diffusion of his ideas through his

prolonged correspondence with Madison, his Notes on the State of Virginia and Madison’s

Virginia Plan, which Madison and the Virginia delegation submitted just before the Convention

began. These works (excluding the Federalist essays) created theoretical bedrock for the 1787

Constitution Convention and as a result, the Federal Constitution. More than anything else

Jefferson and Madison’s ideas and correspondence outlined a particular interpretation on a

proper republican government, its relationship with the populace, and how government could

balance the two ideas.

Madison expanded upon his political theories in his Federalist Essays. In Federal No. 39

he wrote “it is essential to such a government that it be derived from the great body of the

society, not from an inconsiderable proportion or a favored class of it.”40 The Articles of

Confederation had placed the onus for defining proper governance to the states. As a result, the

American Republic contained fourteen political institutions (the 13 states and 1 federal

government) with unique viewpoints on implementing a functioning republican government.

While theoretically sound this political arrangement did not facilitate interstate cooperation since

the Confederation Congress lacked the authority necessary for settling issues, such as the

commercial conflict between New York and New Jersey. The general adaptation of annual

elections exacerbated the situation by introducing political instability into the mix. Any political

40 Madison, Hamilton, and Jay, 237

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arrangements could only be guaranteed for a year since most states banned individuals from

standing for consecutive elections. The Federal Constitution attempted to rectify these problems

by strictly defining the Federal Government’s role and powers41 although it generally left the

individual states existing political arrangements alone.42

The political arrangement outlined by the Articles of Confederation represented a direct

response against the centralizing tendencies exercised by the British Parliament; it also reflected

the Founders attempts at implementing a pure republican government. As a result, the Articles of

Confederation placed the onus for creating good republican government with the states. This

arrangement ensured that although each state spoke the same ideological language, they created

thirteen unique political societies. Pennsylvania’s 1776 Constitution implemented a unicameral

legislature, annual elections, and relatively low suffrage requirements. Just across the Delaware

River, New Jersey’s 1776 Constitution took a starkly different approach. It placed a significant

monetary and property barrier on potential lawmakers. In terms of suffrage it stated,

all inhabitants of this Colony, of full age, who are worth fifty pounds proclamation money, clear estate in the same, and have resided within the county in which they claim a vote for twelve months immediately preceding the election, shall be entitled to vote for Representatives in Council and Assembly

This requirement indicated that although New Jersey had created extremely high barriers to

political office, it had not replicated this policy with voters. Quite the opposite, New Jersey did

not explicitly discriminate based upon gender or race; instead it used financial status as a

dividing line in political participation. This scenario played out in other states, including South

Carolina, albeit with different methods and results. South Carolina’s Constitution43 included high

41 This included guidelines on term length, limits, and compensation.42 The biggest exception is that the Constitution centralized the national financial structure and infrastructure with the Federal Government.43 See Article V of the 1778 South Carolina Constitution: “ . . . shall have in this State a settled plantation or freehold in their and each of their own right of the value of at least ten thousand pounds currency, clear of debt . . .”

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property and financial requirements for holding political office, long residency standards, and a

bias towards preventing popular participation in state level law making. In contrast,

Massachusetts 1780 Constitution represented a familiar preview for modern republicanism with

a heavy emphasis on town meetings, and popular participation in politics. It is the only state that

utilized an actual Constitutional Convention. The Constitution required voter consent; and it took

four years for voters to approve the document. These four states represented a cross section of

the different perspectives that the thirteen American states took towards creating good republican

governments.

The differences between the state constitutions underscored the difficulties faced by the

early American Republic. In 1787, the relationship between citizenry and their local and national

governments required clarification. Did people living in Massachusetts consider themselves

American citizens as well? How did they relate with their counterparts in Virginia and

Pennsylvania? The Articles of Confederation represented a theoretically pure republican

government. However, interstate commercial issues, runaway inflation, mounting foreign debts,

and the need for a stable political system44 imposed requirements on the Confederation Congress

that far outstripped its stated purpose.

At this junction, James Madison and Thomas Jefferson provided a firm theoretical

foundation for an alternative to the Confederation Congress. Jefferson’s only major published

work, Notes on the State of Virginia, and his considerable correspondence with Madison ensured

that, despite his absence at the Federal Convention, his thoughts on a proper republican state

retained considerable influence. Jefferson’s protégé James Madison took a more active role in

44 Annual elections played havoc with the political system. Constantly changing governments represented a classical republican approach to mitigating political corruption yet also introduced a destabilizing element into American politics. If a government only lasted a year (since many states enacted rules against back to back reelection) then long term planning would be impossible since it would necessitate political continuity across multiple administrations.

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the process. Not only did he take the only published notes on the Constitution: Notes of the

Debates in the Federal Convention of 1787 Reported by James Madison (1840),45 he also wrote

several pamphlets and articles making the case for the Constitution46 and authored the Virginia

Plan. Despite the many compromises at the Federal Convention, the Constitution indelibly

resembled the ideas laid out in Madison’s extended correspondence with Thomas Jefferson.47

The Federal Constitution represented a less dramatic departure from the Articles of

Confederation than originally envisioned by Madison. Rather than completely breaking away

from the Articles of Confederation, the Federal Constitution clarified the Federal Government’s

roles and responsibilities as well as its relationship with the states. This arrangement improved

upon the political infrastructure created by the Articles of Confederation for several reasons.

First, it specifically empowered the Federal government with actual responsibilities and the tools

necessary for completing these responsibilities. Under the Constitution, the Federal Government

gained a bicameral legislative branch, an empowered executive branch, and a judicial branch.

Additionally, it received taxation powers, eliminated interstate commerce barriers, and

centralized currency powers within itself. Finally, the Constitution created the possibility for

long-term political stability at both the national and state levels.

Up to this point, most states and the Confederation Congress adhered to annual elections,

with no allowance for concurrent terms. Wood noted in Creation of the American Republic that

although this setup reflected republican theory it did not necessarily promote good government.

Holton supported this idea by concluding that the economic crises were ultimately based upon

45 Madison took the notes as a future tool for historians studying the Constitution and the Constitutional Convention. 46 These papers were eventually gathered and released a comprehensive compilation. see Federalist essays #10, 14, 19, 37-58, 62-6347 see Thomas Jefferson and James Madison, The Republic of Letters: The Correspondence between Thomas Jefferson and James Madison 1776-1826, Ed. James Morton Smith (New York; W.W. Norton & Company, 1995) for a complete correspondence between the two men.

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legislative instability (in part driven by annual turnover), the state government’s over-

responsiveness to voter demands, and inability to pay financial obligations.48 Thus, Holton

asserted that the Framers’ overall goal was to clarify and improve upon the Confederation

government. Rather than remaining focused upon ideological purity, they wanted a government

that could address the real world issues, such as interstate conflicts, inflation, debt, and taxation,

without forcing the citizens into rebellion49 or the nation into catastrophe. A Bill of Rights (1791)

and a process for amending the Constitution further empowered the Federal government and

addressed some lingering issues from the Constitutional Convention.

In 1786, American political society had evolved to its maximum potential under the

Articles of Confederation. For James Madison and Thomas Jefferson, this evolution had not

progressed far enough. With Jefferson’s support on the need for creating a more powerful

national system, Madison proposed a system to remedy this problem: the Virginia Plan.

Madison’s proposed a system to replace the Articles of Confederation; by doing so Madison set

the tone for the Constitutional Convention. The Convention sought to change the political

equation, but to what extent? Neither Madison nor Jefferson advocated a Parliament-style

government; additionally, both men saw the Confederation Congress as a failed experiment.

Instead they sought a balance between the two systems. Compromises with Anti-Federalists

ensured that the individual states retained responsibility50 for their internal affairs; although the

Constitution clarified the Federal Government’s role as the preeminent political entity in the

American Republic.51

48 These debts included debt to European merchants, government debts accrued during the Revolutionary War, and back-pay for Continental Army Soldiers.49 Shays Rebellion and the Whiskey Rebellion are two prominent examples. Both arose from questions regarding taxation, fairness, and legality. Also both occurred because no other course seemed possible. 50 Taxation by the Federal Government, as well as abolished interstate economic barriers replaced some state responsibilities. These included voluntary contributions to the Federal Government and tariffs imposed by states upon imported goods (foreign or from out of state).51 See Articles 1 ,2, and 6 of the Federal Constitution.

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Madison and Jefferson also wanted balance within the government itself. The Articles of

Confederation represented a conscious effort by the Founders to reject the centralized governing

style attempted by the British Parliament during the 1760s and 1770s. Instead they founded a

government that specifically rejected a centralized government in favor of a more state centric

model. However to many Anti-federalists this approach simply traded one tyrannical model for

another one. Although the Articles of Confederation eschewed a central government, the

emphasis on state government ensured that local rather than national concerns determined

dominated state and interstate politics. This in turn created more chaos since different states

pursued different, and often competing agendas. Since most state constitutions necessitated

annual elections the state governments also remained extremely sensitive to the citizens’

expectations, which did not always translate into workable policies.

An example is Shay’s Rebellion, which occurred in Massachusetts between 1786 and

1787. Shay’s Rebellion erupted between eastern and western Massachusetts’ towns regarding

taxation, debt repayment, and representation. Essentially, merchants centered in eastern

Massachusetts sought relief for their considerable debts by in turn demanding repayment on their

own loans in specie. Their connections in the Massachusetts legislature and the abrupt

resignation of Governor Hancock ensured that their demands became policy.52 With no national

or state recourse, residents in western Massachusetts rebelled against, what they perceived as, the

tyrannical policies enacted by the majority against the minority. Not only did this episode expose

problems within the Massachusetts political structure, it also emphasized the Confederation

Congress’ weaknesses. With no independent revenue stream, Congress could not raise or

maintain an armed force for putting down the rebellion. That responsibility fell upon

52 It’s important to note that eastern Massachusetts contained a majority of the population and therefore representatives within the state legislature.

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Massachusetts, which also lacked the necessary financial resources for raising and maintaining

an armed force. Fundraising efforts allowed the Massachusetts government to raise 3000

privately funded troops but revealed the state’s weak financial and political status. The political

fallout further demonstrated the problems facing the American Republic in the years before the

Constitutional Convention. Following Shay’s Rebellion, John Hancock, who had abruptly

resigned the year before, defeated Governor Bowdoin and promptly cut taxes, placed a

moratorium on debt payments, and refocused state money away from debt payments.53 Although

these legislative efforts proved popular, they did great damage to Massachusetts’ financial

standing and stability.

On February 21, 1787 Madison warned George Washington that although “the Rebellion

[was] nearly extinct” the proposed measures for “disarming and disfranchising those concerned

in it should be carried into effect” might further disrupt Massachusetts (and by extension, the

American Republic) fragile socio-political status.54 Madison used this letter as a way to

encourage Washington’s participation in the Constitutional Convention. Jefferson interpreted

events much differently than Madison. On December 20, 1787 he wrote to Madison that “the late

rebellion in Massachusetts has given more alarm than I think it should have done.” Nine days

later he wrote to Colonel Edward Carrington that “the basis of our government being the

opinions of the people, the very first object should be to keep that right.”55 Jefferson interpreted

Shay’s Rebellion as a message to the Massachusetts state government that it did not adequately

serve all its constituents. He noted that the rebellious citizens wanted political equality and an

equitable tax burden, not to overthrow the system. Even with Jefferson's reaction most 53 For more information , see Leonard Richard, Shay’s Rebellion: The American Revolution’s Final Battle (Philadelphia : University of Pennsylvania Press, 2003).54 Thomas Jefferson, “Thomas Jefferson to James Madison, December 20, 1787,” Thomas Jefferson Papers, Series 1, General Correspondence, Library of Congress.55 Thomas Jefferson, “Thomas Jefferson to Colonel Edward Carrington, January 16, 1787,” Thomas Jefferson Papers, Series 1, General Correspondence, Library of Congress.

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politicians, like Madison, reasoned that a strengthened and defined central government would be

less susceptible to popular demands and therefore better able to address or solve the political

issues behind Shays Rebellion. Massachusetts’ inability to address the rebellious citizens’

concerns without violence and the Confederation Congresses inability to act made the

Constitutional Convention seem even more imperative.

Between 1782 and 1787 the American Republic experimented with different schools of

republican thought as the political class sought to create a working relationship between the

government, the people, republican theory, and real world issues. By 1787, it seemed clear that

the political arrangement outlined by the Articles of Confederation did not work as its authors

had hoped. The 1787 Philadelphia convention modified the previous political arrangement in

favor of a more centralized and defined model. Although the vision championed by Thomas

Jefferson and James Madison became the model adopted by the Constitutional Convention the

Federal Constitution did incorporate aspects of other proposed plans.

On June 15, 1787 William Patterson submitted a plan, which he proposed “be substituted

in place of that proposed by Mr. Randolph.”56 His “New Jersey Plan” proposed that the “articles

of Confederation” ought to be so revised, corrected & enlarged, as to render the federal

Constitution adequate to the exigencies of Government, & preservation of the Union.”57 While it

did establish a federal executive and granted Congress taxation responsibilities it maintained the

assumption that each state existed as an independent political unit. Each state existed as an

independent republic and should therefore be granted a single vote, rather than proportional

allocation in the Congress. This proposal conflicted with the bicameral legislature outlined by the

Virginia Plan and reflected the conflict over representation and political power within the

56 Gov. Edmund Randolph submitted the Virginia Plan on May 29, 1787.57 James Madison, “Madison Debates June 15, 1787”; 1787, URL: http :// avalon . law . yale . edu /18 th _ century / debates _615. asp # pat

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American Republic. States with smaller populations objected to proportional representation

because it meant that more populous states would wield greater political power. The Madison

authored Virginia Plan outlined a competing vision for the Federal government. Unlike the New

Jersey Plan, it proposed a bicameral legislature with a popularly elected “first branch of the

National Legislature” and a “second branch of the National Legislature [that] ought to be elected

by those of the first.”58 The Virginia Plan put forward a radically different structure than what

either the New Jersey Plan or Articles of Confederation established. The ultimate response to

these two plans was deadlock since neither side saw any real room for compromise on the issue.

On June 11, 1787 Robert Sherman of Connecticut proposed a solution to the deadlock

over representation in the Congress. According to Madison’s notes “Mr. Sharman proposed that

the proportion of suffrage in the 1st. branch should be according to the respective number of free

inhabitants; and in the second branch or Senate, each State should have one vote and no more.”59

Although it did not make any forward movement until July 23rd,60 the Convention ultimately

adopted Sherman’s proposal as a compromise between the big and small states. The catchword

for the entire process is “compromise”. The Federal Constitution represented a compromise

between many different and competing visions for proper governance. While many of the

Framers agreed that the Articles of Confederation needed revision their opinions on how to best

accomplish this reform varied widely from person to person.

58 James Madison, Variant Texts of the Virginia Plan, Presented by Edmund Randolph to the Federal Convention, May 29, 1787. Text A (May 29, 1787), URL: http :// avalon . law . yale . edu /18 th _ century / vatexta . asp 59 James Madison, “Madison Debates June 11, 1787”; 1787, URL: http :// avalon . law . yale . edu /18 th _ century / debates _611. asp 60 See Madison Debates July 23 for more information. URL: http :// avalon . law . yale . edu /18 th _ century / debates _723. asp

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Chapter 4 - Articles of Confederation and the State Constitutions

Part I: Articles of ConfederationIn 1781 the Articles of Confederation represented a particular perspective on

implementing a good republican government. The foundation for defining good government is

found in John Locke’s Second Treatise on Government. According to Locke, “every man has a

property in his own person: this nobody has any right to but himself. The labour of his body, and

the work of his hands, we may say, are properly his.”61 To protect an individual’s property “one

divests himself of his natural liberty, and puts on the bonds of civil society,” in an effort to

“secure enjoyment of their properties, and a greater security against any, that are not of it.”62

With few exceptions, the Articles of Confederation gave the states a tremendous level of

authority in establishing the social contract between the citizen and government. According to

Locke, a lawful government could only evolve through this societal arrangement, which centered

on property and personal rights guaranteed by a voluntarily subscribed political entity.63

American politicians interpreted this idea to mean that if government remained locally bound

and derived than it would better protect its citizens rights and property.64

Article II of the Articles of Confederation stipulated that “each state retain its

sovereignty, freedom, and independence, and every Power, Jurisdiction, and right, which is not

by this confederation expressly delegated to the United States in Congress assembled." Although

the Articles did establish a national government domestically it was intended more as a national

forum, since each state retained the ability to govern itself. In stark contrast with

61 John Locke, Second Treatise on Government, ed. C . B . Macpherson (Cambridge; Hackett Publishing Company Inc, 1980). 62 Locke, 52.63 The idea for making participation in the American Republic voluntary is derived from this Lockean idea.64 Devolution from the centralized Parliamentarian model to the state centric Confederation Government.

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Parliamentarian government, the Confederation Congress only retained those powers specifically

designated to the “United States in Congress." Since these powers strictly limited its independent

powers, the Confederation Congress remained entirely dependent upon the states and their

consensus on important issues. This arrangement created a significant clash between political

theory and expectations for a national government. Because the states retained a majority of the

political power they could effectively maintain both their independence and protect the citizens

property rights. The problem with this state centric approach is that it did not promote productive

interstate relationships. In fact, the state centric political structure actually facilitated conflict and

competition between the states.65 A relatively limited central government could only watch the

situation since regulating these conflicts did not fit within the duties “expressly delegated” to the

Confederation Congress.

Article IV attempted to mitigate potential commercial tensions between the states. It

dictated that to “better secure and perpetuate mutual friendship and intercourse among the people

of the different states in this union” all citizens of the various states “are subject to the same

duties, impositions, and restrictions as the inhabitants thereof respectively, provided that such

restrictions shall not extend so far as to prevent the removal of property." While Article IV

addressed commercial issues between the various states, it also served another important

purpose. Article IV attempted to leverage strong economic ties between citizens from the

different states to create an informal national identity. The key phrase is that all citizens of the

various states are subject to the same duties, etc. as “the inhabitants thereof respectively." So

while Article IVs supported the states’ economic independence it also attempted to level the

economic playing field between the different states and their citizens. In reality Article IV only 65 Significant tensions existed between states like New Jersey and New York based upon New York’s tariff structure, and favoritism towards New York based merchants. The Confederation Congresses inability to fix this issue is cited as a significant reason for the Annapolis Convention, which eventually led to the Philadelphia Convention.

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barely alleviated interstate tensions over commercial issues since Congress lacked the

independent regulatory powers necessary for enforcing its designated powers. The Congress’

weak economic powers and the dire financial situation in the American Republic during the

1780s represented a key reason for the Constitutional Convention. For all its theoretical

soundness, the Congress’ inability to actively regulate or mediate on economic matters ensured

that its practical ability would be quite limited.

Article V of the Articles established a Congress between the various states “for the most

convenient management of the general interests of the united States." Individual state legislatures

determined congressional membership. This article emphasized the Confederation Congresses

primary role as a meeting place for the various states. As a result, the Articles allowed the

individual states to recall their representatives at any moment. The largely voluntary relationship

between the various states and Congress resulted from the Framers desire to distance the

American Republic from the previous government model. In their eyes Parliament had proven

that a powerful central government, even a bicameral one, could not maintain a proper

republican government. The obvious alternative to this system was delegating political power to

the states. The Framers theorized that the states would be more representative than a centralized

government because people would be represented by their peers and thus fulfill Locke’s

requirement for creating a political system. Ultimately, this closeness became a double-edged

sword as the state could not create or manage effective economic and taxation policies.66

Experience revealed that the annual electoral cycle and resulting turnover in legislative

membership made them increasingly susceptible to political instability and rebellion. Since the

American Republic had a de facto, but no de jure political center during this time (1782-1787)

this instability necessitated considerable reforms to the Articles of Confederation. It also bears

66 see Woody Holton’s “Did Democracy Cause the Recession That Led to the Constitution.”

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remembering that many American politicians, including Thomas Jefferson, thought that the

Articles of Confederation as an evolutionary, and not penultimate, step for the American

Republic and has anticipated the need for reforms.67

Article IX contained several important responsibilities for the Congress. The first section

stipulated “the united States in congress assembled, shall have the sole and exclusive right and

power of determining on peace and war, except in the cases mentioned in the sixth article." The

second section further described and limited the responsibilities that Congress could take upon

itself, specifically, that Congress “shall be restrained from imposing such imposts and duties on

foreigners, as their own people are subjected to, or from prohibiting the exportation or

importation of any species of foods or commodities whatsoever." In all external matters the

Articles of Confederation gave Congress exclusive responsibility; domestically Congress

exercised only as much power as the individual states allowed. The reason for this division is

that many politicians feared that a strong or empowered federal government would potentially

endanger its citizen’s rights. As a result, the Articles of Confederation established thirteen

nominally independent states with a weak center holding them together.

Even so, the Founders recognized that they needed to present a united front

internationally lest the American Republic be gobbled up by another European empire. However

military conflicts in the Ohio River valley, upstate New York, and Shay’s Rebellion in

Massachusetts put significant pressure on the relationship between Congress and the states.

Shay’s Rebellion demonstrated that single states usually did not possess adequate resources for

combating uprisings or sustaining military campaigns. Congress offered little relief since any

Congressional or multi-state effort required near unanimous approval and interstate cooperation.

67 Jefferson, 220.

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In the Ohio River valley and upstate New York settlers repeatedly clashed with Indian

Confederacies, supported by the British, in an effort to claim desired land. According to the

Treaty of Paris,68 which ended the American War for Independence, this land had been granted to

the United States by Great Britain. This arrangement ignored the Indian nations, such as the

Iroquois Confederacy, which already inhabited the lands granted to the United States. Despite

the generous terms offered in the Treaty of Paris the British never abandoned their forts in the

area69 citing American violations as their reason. Although the British avoided direct conflict

with American settlers, they encouraged and armed the Indian Confederations. As American

settlers moved in these areas they came into violent contact with these confederations.

The Treaty of Paris established that the territory between the Appalachians and the

Mississippi legally belonged to the American Republic.70 The problem with this arrangement was

that the British had no legal agreements with the original inhabitants. Since they did not legally

own the land, they could not legally give it away. Because the Indians were not considered

citizens violence between the settlers and Indians could not be classified as an insurrection. Since

Confederation Congress didn’t diplomatically recognize most Indian Confederacies it could not

declare war. The conflicts in upstate New York and the Ohio River valley exposed the

conundrum posed by the Confederation Congresses limited political responsibilities. It could

only raise an army with the states’ permission and participation; however the discord between

the states, unclear state boundaries71 and fears of a national army made raising an army

untenable. New York technically retained responsibility for settlers and their protection, but

lacked the resources needed for a war with the Iroquois Confederacy. Neither Kentucky nor Ohio

68 see 1782 Treaty of Paris URL: http :// avalon . law . yale . edu /18 th _ century / prel 1782. asp 69 The 1794 Treaty of London remedied this situation. 70 It eventually became Kentucky and Ohio. 71 This was especially true in west of the Appalachian Mountains.

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existed as states during this time and confusion over political boundaries west of the Appalachian

Mountains further complicated the situation.72 This legal and political morass exemplified the

Confederation Congresses inherent limitations. Because these limitations were written into the

Articles of Confederation they could not addressed until the Federal Constitutions ratification.

Economics represented another area where Congress’ limited powers hobbled its

effectiveness. According to Article IX Section IV, “the united States in Congress shall also have

the sole and exclusive right and power of regulating the allow and value of coin struck by their

own authority or by that of the respective States." The obvious loophole was that “the legislative

right of any State within its own limits be not infringed or violated." The Articles of

Confederation gave Congress regulatory control over the value of specie struck by the Congress

or the states, but did not regulate paper money. While this idea is consistent with traditional

republican thinking, which eschewed paper money; its implementation revealed that it left

Congress helpless since, theory or not, the states continued to print paper money anyway.

Theoretically, Congress retained responsibility for ensuring that the various financial and

commercial rules applied universally to all citizens. Again though, Congress’ inability to regulate

paper money and the states continued printing nullified any potential regulation. Since printing

paper money proved popular with many people, it drove up inflation and eventually left states

and individual citizens unable to pay off their debts. Holton’s article postulated that this inability

to pay off debts coupled with a specie shortage created a financial crisis that spiraled out of

control and eventually forced American politicians to consider substantially revising the national

and state political structures.73 Whether or not Holton’s causational relationship is correct, this

72 These boundary issues would not be fully resolved until the Northwest Ordinance of 1787 was ratified.73 see Woody Holton, “Did Democracy Cause the Recession That Led to the Constitution,” The Journal of American History 92: 2 (September 2005).

39

practice did nothing to help the beleaguered American financial system, which had not recovered

from its collapse during the Revolutionary War.

During the Revolutionary War, the Continental Congress and the states had all issued

their own paper currency. By 1780, the Congress’ currency had devalued to 1/40th of its original

value due to over-circulation. Additionally, studies indicate that during this time period most

colonial economies functioned on credit.74 As the currency devalued, many individuals could not

repay their debts, eventually both the debtors and the currency became insolvent. Because the

Confederation Congress could not regulate paper money, this practice continued during the

1780s. Without a compulsory, unified income stream, and with massive debts, Congress and the

states experienced significant challenges in meeting their financial obligations. The organizers

for the Annapolis Convention (1786) and later the Philadelphia Constitution (1787) cited these

economic troubles as prime motivating factors for reforming the Articles of Confederation.

By signing the Articles of Confederation, the states lost control over specie production,

but retained full control over issuing paper bills (or bills of credit). During the 1780s, this

exception succeeded in exacerbating the already tenuous economic situation. Holton suggested

that this financial insolvency and the states inability to withstand voter demands directly fed into

the Congress’ ineffectualness,75 as well as calls for a new government. Additionally, it also

explained why states like New Jersey ratified the new Constitution so quickly. Not only did it

grant the Federal Government rights over taxation and sole responsibility for printing money, it

also forbid states from imposing internal tariffs (as New York did to New Jersey during the

1780s). By re-balancing and recalibrating the internal economic and financial structure, the

Constitution distinctly separated itself from its predecessor..

74 See Flynn, David. “Credit in the Colonial American Economy." EH.Net Encyclopedia, edited by Robert Whaples. March 16, 2008. URL http :// eh . net / encyclopedia / article / flynn . colonialcredit 75 Holton, 449.

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Article IX Section VI stated that Congress could not pass legislation “unless nine States

assent to the same.” In other words, each successful piece of legislature passed by Congress

required a total majority. While this process ensured that legislation passed by the Congress had

broad appeal, it also made every legislative debate a potential battle between competing interests.

In response to this, Madison wrote extensively about the dangers posed by majority tyranny in

Federalist no.10.76 By creating a political union, but not implementing a fully fleshed out

structure for regulating interstate regulation and cooperation, the Articles of Confederation

created a decentralized political structure with a weak center. The Confederacy satisfied Locke’s

requirements for a working republic, but in reality, failed to facilitate an effective, balanced

union between the states.

These weaknesses aside, the Confederation Congress did have some legislative success;

specifically the Land Ordinances of 1784, 1785, and 1787. Under the old colonial charters

Connecticut, Virginia, and almost all of the original colonies had been granted lands from the

Atlantic to the Pacific. By 1784, Americans had begun moving west in increasing numbers. As

these settlers built homes and created communities, they became embroiled in land disputes with

the older states. In response to this conflict the Confederation Congress passed the Land

Ordinance of 1784. As defined by Article IX, the responsibility for creating new territories and

states lay well within the Congress’ authority. Jefferson, the ordinance’s author, wrote that it was

“necessary for the preservation of peace and good order among the settlers.”77 Not only did the

Land Ordinance of 1784 prohibit slavery, it also established a mechanism for admitting new

states in the Confederation. Eventually, this ordinance evolved into the Northwest Ordinance of

76 Madison, Hamilton, and Jay, 72-79.77 Thomas Jefferson, The Works of Thomas Jefferson: Notes on Virginia II, Correspondence 1782-1786 (New York; Cosimo, Inc., 2009) 279

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1787,78 which George Washington signed in 1789 establishing the Northwest Territories. This

case represented one of the few legislative success enjoyed by the Congress because it fell within

the strict limits defined by the Articles of Confederacy and enjoyed near universal support from

the states.

Part II: State ConstitutionsThe Articles of Confederation created a system based upon theoretical cooperation

between thirteen nominally independent republics or “States." As a result, each state defined the

relationship between the citizen and its government in slightly different ways. These differences

when coupled with the limited powers assigned to the Congress demonstrated the difficulty in

crafting a nation, while simultaneously allowing each member state tremendous political

autonomy. In many cases, such as Shay’s Rebellion or the commercial conflict between New

York and New Jersey, the states proved politically unable or inadequately equipped for resolving

these issues. At the same time, the Congress did not possess, nor did the states feel it necessary

to extend, the powers necessary for independently addressing these problems. Thus, the

republican theory of government laid out by the Articles of Confederation proved to be a double

edged sword. The Constitutions of Pennsylvania, Massachusetts, South Carolina, and New

Jersey represented a cross section of the citizen-government relationship types that developed

during this time period. They also represent the key to understanding why, in 1787, all thirteen

states sent representatives to the Constitutional Convention.

Many state constitutions provided protections for freedom of religion and press. Some,

like South Carolina, went against this grain and introduced explicit religious requirements for

eligible office seekers. Others, such as Pennsylvania, did not make any requirements beyond

78 U.S. Congress, Northwest Ordinance ; July 13, 1787, 1787, URL: http :// avalon . law . yale . edu /18 th _ century / nworder . asp

42

some basic residency and financial requirements. New Jersey had basic requirements for voting

and higher standards for participation in government. The 1780 Massachusetts Constitution

defined three popularly and distinct separate government branches, as well as an explicit Bill of

Rights.

Nevertheless, most state Constitutions embraced representative republicanism over direct

democracy. They adapted the representative model for several reasons. Practically speaking,

limitations on long distance communication made direct democracy impractical and necessitated

a representative republican model. Additionally, Madison wrote in Federalist no. 10 that direct

democracies are not acceptable because they allow the majority power over the minority.

Although rare, Madison posited that the likelihood of a majoritarian tyranny necessitated a layer

of separation between the voters and the legislative process79; this reason made another case for a

representative republic rather than a direct democratic model. Since the colonists had created

legislative bodies with locally elected representatives, the representatives theoretically

maintained their legitimacy through their local connections. Additionally many states required

frequent election and strictly delineated government responsibilities among the different

departments. Above all, all state governments deliberately constructed their political systems in a

manner that discouraged any long-term government service. Their experience with Parliament

had demonstrated that political longevity inevitably corrupted no matter how good the intentions.

In 1781, annual elections and prohibitions on consecutive terms offered a particularly alluring

solution to this political problem.

By 1787, many politicians had concluded that annual elections created great political

instability, which in turn exacerbated existing economic problems.80 Despite the problems facing

79 See Federalist Essay No. 10.80 Annual elections = great popular input in government. It’s never popular to institute austerity measures and even harder to sustain them when the government is constantly changing.

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the republic in 1787, Marc Kruman wrote that many individuals remained reluctant to central

political authority. Many people still believed that no single institution “could be trusted with

unlimited power, government needed to be hemmed in at every turn.”81 Kruman theorized that by

attempting to limit government the state constitutional conventions agreed with the idea that a

“government is founded in compact, and originates with the people.”82 The more important

question, posed by Madison in his Federalist essays, is whether or not popular participation in

government and popular control over legislative policy actually yielded effective government?

Based upon the political structure established in 1776, and codified by the Articles of

Confederation, Madison and his Federalist supporters believed that although popular

participation in politics remained vital, it required a distinct and separate counter balance.

For all their diversity the state constitutions operated with very similar ideologies.

Parliamentarian meddling during the previous decades convinced the Framers that a powerful

centralized government inevitably led to tyranny. Based upon their experiences with the British

Parliament, state constitutional conventions attempted a different course of action. To this effect

many states, such as Massachusetts and New Jersey, created governments with multiple and

distinct branches with short and defined tenures for political participants. The legislative,

executive, and sometimes judicial branches held separate responsibilities, and generally retained

checks on the other branches. In some cases, like Pennsylvania, the popularly elected legislature

retained sole power in the government.83 To balance against potentially tyrannical legislatures,

the Pennsylvania constitutional convention made it directly accountable to its citizenry.84 It made

81 Marc W. Kruman, Between Authority and Liberty: Constitution Making in Revolutionary America (Chapel Hill; University of North Carolina Press, 1997), 14.82 Kruman, 19.

83 See “Plan or Frame of Government for the Commonwealth or State of Pennsylvania Section 1.”84 See “Plan or Frame of Government for the Commonwealth or State of Pennsylvania Section 6.”

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legislative activities a matter of public record, stipulated annual elections, and placed constraints

on reelection in an effort to maintain government honesty. Although the 1776 Pennsylvania

model did not survive the 1790 Pennsylvania Constitutional Convention, it remained an

important deviation from the established bi-cameral system.

New Jersey The New Jersey Constitutional Constitution established a separate Legislative Council,

General Assembly, and a Governor, but did not create an independent judiciary.85 For the

General Assembly, the Constitution required that a successful candidate possess £500 in real and

proclamation money within the county where they resided. It required £1000, real and

proclamation money for the Legislative Council. Membership in each legislative body

necessitated at least one years residency within the specified county. For the Governor no

explicit constitutional requirements existed, but the Legislative Council and General Assembly

chose the individual for Governor. This electoral method meant that while an executive branch

did exist, the legislative branch retained ultimate authority. Article IV stipulated that “all

inhabitants of this Colony, of full age, who are worth fifty pounds” gained suffrage irrespective

of skin color and sex. An important exception being that while married women could not vote,

unmarried women meeting the property requirement could. New Jersey’s Constitution

emphasized the idea that only people with property could claim a legitimate interest and stake in

politics. Since married women were generally regarded as property or, at the very least, did not

possess any independent property from their husbands this law excluded them. Unmarried and

propertied women represented a different quantity. Since no laws restricted property ownership

for unmarried women, they could own property and therefore retained a stake in government.

85 See “Constitution of New Jersey 1776 Article I.”

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This was less a women’s rights issue than an understanding that any propertied individual should

be allowed participation in politics, irrespective of sex.

As with all other states, the Assembly retained sole responsibility for passing “money

bills,” although in all other respects the Legislative Council acted as the superior legislative

body. In military matters, Article X placed higher responsibilities with the Council and

Assembly, not with the executive branch. The Supreme Court and its inferior courts served terms

varying from one year to seven years and received appointments from the governor or vice-

president of the council. It is important to note that the judiciary did not have any term limits.

This meant that judges could be reelected to an infinite number of terms. As with most other

states, New Jersey created a bi-cameral legislative body with some responsibilities devolving to a

figurehead executive. This created a political structure balanced against executive tyranny as

well as majoritarian tyranny. It accomplished these goals by eliminating the independent

judiciary, weakening the executive, and intentionally or not, siphoned direct political

participation through a financial sieve. New Jersey’s Constitution represented a fairly orthodox

interpretation of republican theory with some caveats such as allowing unmarried women

suffrage.

South Carolina: As with New Jersey, South Carolina’s 1778 Constitution created a bi-cameral legislature

and a legislatively appointed governor. In Articles VI and VII the Constitution dictated that each

governor served for two years and be ineligible for re-election for four years afterwards. As with

all other state constitutions, these term limits reflected concerns that any prolonged political

service inevitably led into corruption. Despite this seemingly republican notion, the remaining

articles contradict the ideas behind term limits. Rather than inhibit societal stratification and

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project liberty for all the South Carolina Constitution constructed a system, which preserved and

perpetuated the contemporary social structure. Article VII supported and expanded on this idea.

It explicitly prohibited an individual from holding the governor or lieutenant-governor position at

the same time as any other government position. Significantly, Article XII dictated how many

representatives each parish received and the requirements for prospective representatives. Again,

South Carolina followed the precedent set by other state constitutions in creating representative

systems. The most important difference were the income requirements for political office.86

The property and debt requirements in the South Carolina Constitution excluded a vast

majority of the population from the legislature. This requirement illuminated the Framers’

intention to perpetuate the social strata and order that had existed before independence. In this

case, Beard’s assertion that the elites conspired to keep power in their hands is more correct than

the Neo-Whig or Neo-Progressive narrative for the time period. Even between people eligible for

political office the Constitution established a political hierarchy between the rich and super rich.

Essentially, the South Carolina Constitution reinforced existing socio-economic roles that had

existed before the Revolutionary War. Additionally, the rhetorical tools utilized by the Founders

threatened the social arrangement in South Carolina by emphasizing social equality, political

suffrage, and natural rights. For this reason, the South Carolina Constitution reads like a

republican document but simply codified the prewar sociopolitical arrangement.

Article XVI reinforced this notion by stating that although “money bills” would always

originate in the House of Representatives and may not be modified by the Senate, the Senate

retained veto power. Additionally, the Senate could originate all other bill types further

enfeebling the House of Representatives. The South Carolina Constitution demonstrated the

dangers posed by the Articles of Confederation. Although the South Carolina and Pennsylvania

86 See “Constitution of South Carolina- March, 19 1778 - Article XIII.”

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Constitutions utilized the same vocabulary each state established diametrically opposed political

systems.

Pennsylvania:In 1776, Pennsylvania took the opposite approach to South Carolina when it established a

unicameral authority. Although this might seem vaguely Parliamentarian the Framers created a

flat government structure, which utilized citizen participation to offset the potential dangers

posed by a unified government. Article IV stated that “all power being originally inherent in, and

consequently derived from the people” all government officials and offices are always

accountable to the people. In Article V “the community hath an indubitable, unalienable, and

undefeasible right to reform, alter, or abolish government." These articles not only emphasized

that government is always accountable to its population, but also reaffirmed the principles

outlined in the colonial charter.87 This stands in direct contrast to South Carolina’s Constitution,

which attempted to limit popular participation in politics. Articles VI through VIII stipulated that

the people can recall their representatives if they felt it necessary. In Article VII the Pennsylvania

Constitution stated that “all elections ought to be free” and that all freemen with “sufficient

evident common interest” are allowed to vote and run for office. Continuing this trend, Article

VIII stated that as long as an individual contributes their fair share they could enjoy state

protection. What makes Pennsylvania’s 1776 Constitution so remarkable was its connection to

and reliance upon popularly elected institutions. This continued a policy outlined in the 1696

colonial charter which stated that all men could vote if “they be free denizens of this

87 Paul Leicester Ford, “The Adoption of the Pennsylvania Constitution of 1776,” Political Science Quarterly 10:3 (September 1895) URL: http :// www . jstor . org / stable /2139954, 454.

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government, and are of twenty one years . . . and have fifty acres of land . . . or be otherwise

worth fifty pounds . . . and be a resident within this government for the space of two years.”88 The

1776 Constitution made some modifications,89 but events did not allow for a substantial revision

to the Charter. Despite being a largely derivative document the Pennsylvania Constitution still

embodied the words written in the Declaration of Independence that “Governments are instituted

among Men, deriving their just powers from the consent of the governed.” Only Massachusetts

came close to matching the Pennsylvania Constitutions populist principles.

Massachusetts:The 1780 Massachusetts Constitution represented the vision outlined by John Adams in

his essay “Thoughts on Government.” In 1776, Adams wrote that a representative assembly

“should be in miniature an exact portrait of the people at large.”90 However Adams identified

several problems with centering all power into a single political body. He wrote that a

representative assembly lacked two distinct properties for a good executive: “secrecy and

dispatch.” Adams asserted that the legislature should not assume judicial responsibilities because

it was “too numerous, too slow, and too little skilled in the laws.”91 Adams solution was to create

three distinct branches of government. Why three? One branch inevitably invited tyranny, like

the British Parliament. Two branches only ensured that “the contest shall end in war,” with the

victorious group usurping power. The solution lay with assembling a mediator between the “two

extreme branches.” Adams assigned the judiciary branch to this role. He did not create this

88 See the 1696 Pennsylvania Charter paragraph 3 URL: http :// avalon . law . yale . edu /17 th _ century / pa 06. asp 89 Changes from the 1696 Charter: all freemen over 21 years old, having resided in the state for at least a year, and having paid taxes during their residency are eligible for suffrage and office holding.90 See John Adams, “Thoughts on Government." URL: http :// teachingamericanhistory . org / library / index . asp ? document =37 91 John Adams, “Thoughts on Government." Accessed May 12, 2012. URL: http :// teachingamericanhistory . org / library / index . asp ? document =37

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political organization in a vacuum. Instead, he built upon the theories postulated by past

philosophers including John Locke and John Milton. In this way, Adam’s Massachusetts

Constitution represented old ideas on proper governance attached to a political structure

explicitly created as a means for balancing competing societal elements: the law, aristocracy, and

the common folk.

In many ways, the Massachusetts Constitution represented a preview for the Federal

Constitution. It had an explicit Bill of Rights, which outlined 30 different, explicitly guaranteed

rights. Massachusetts was the first state to utilize a dedicated convention process for

Constitutional development. Additionally, the convention submitted the Constitution to the

general population for ratification. And unlike many other states, Massachusetts conceived the

legislative, executive, and judicial departments as distinct and separate entities. Chapter I Section

I Article I establishes a bicameral legislature-a Senate and House of Representatives. The Senate

is the “first branch of the legislature,” although Senators were still popularly elected. Suffrage

was extended to “every male inhabitant of twenty-one years of age and upwards, having a

freehold estate of the value of sixty pounds." Reflecting Adam’s sentiment that the representative

assembly should reflect the population, Massachusetts focused political power on individuals via

incorporated towns. Chapter I Section 3 Article II stated that “every corporate town containing

one hundred and fifty ratable polls, may elect one representative” with “two hundred and twenty

five ratable polls [being] the mean [sic] number for every additional representative."92 The

Constitution established no upper limit on the number of annually elected representatives. In the

Massachusetts Constitution, John Adams outlined a government that reflected and combined

republican ideals with a working government. Even with this Constitution Massachusetts

experienced significant challenges during the Confederation period.

92 See “Constitution of Massachusetts 1780 Chapter I Section 3 Article II.”

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By the 1780s, Massachusetts had developed two radically different and codependent

economies. Merchants dominated the eastern state economy, which centered on ports like Boston

and Gloucester. Agriculture dominated western Massachusetts. Following the American

Revolution European creditors cut off Massachusetts’ merchants from their previous lines of

credit. Instead they required that the merchants pay with hard currency. In turn, Massachusetts’

merchants began demanding hard currency payments from their customers. Since many of their

customers proved unable to pay their debts or taxes they began losing their land. Even Gov. John

Hancock’s refusal to actively prosecute delinquent payers didn’t help. Feeling as if they had no

alternatives, farmers in eastern Massachusetts rebelled in an effort to rectify their precarious

situation.93 Ultimately, the Confederation period proved that even a sound government structure

did not provide the states with the necessary resources for combating the intense economic

conditions brought upon by the American Revolution. Congress’ inability to provide any

meaningful relief during this time as well as the states’ demonstrated inability to cope provided

significant impetus for the Constitutional Convention in 1787. The Constitution did not solve

every state’s economic problems, but it did address the weaknesses that states, like

Massachusetts, demonstrated during the Confederation period. By centralizing taxation, minting,

and responsibility for each states debt the Constitution significantly reduced the economic load

forced upon each state. In turn, this allowed each state the economic breathing room necessary

for developing and diversifying themselves. The assumption of public debt by the Federal

Government represented one of the most important reasons for why states, like Massachusetts

and Rhode Island, were able to expand and industrialize their economies during the early to mid-

19th century.

93 See “Shays' Rebellion: The Making of an Agrarian Insurrection” by David P. Szatmary for more information.

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Part III: ConclusionLike the Articles of Confederation, the various state constitutions illustrated a universal

desire for balance and good government. Significantly, states approached this desire in very

different ways. Massachusetts blended previous philosophical ideas on proper government with a

structurally balanced government model. More importantly John Adams, the Massachusetts

Constitutions architect, demonstrated that the ideas, which Madison and Jefferson presented in

the Virginia Plan, did not originate spontaneously. Instead, they reflected the continuous

intellectual development of republican thought in the American Republic.

In keeping with the idea of intellectual evolution, New Jersey eliminated the independent

judiciary branch and hobbled the executive branch. Drawing from their experience with

Parliamentarian “tyranny,” the New Jersey Constitution’s framers created a tiered though

popularly derived political model. South Carolina adapted a similar model to New Jersey with

some significant differences. It paid lip service to popular participation in state politics, but the

incredibly steep property and income requirements excluded anyone worth less than £2000 from

politics. These requirements indicated that South Carolina’s Constitutional framers actual

interests lay with preserving the existing socio-economic arrangement rather than implementing

actual republican policies. Alone among the states, Pennsylvania experimented with a direct,

representative model. The legislature rolled all branches of government into itself and

maintained a direct relationship with its populace. Again the Framers strove for a balanced

political model.

Unlike the other states, Pennsylvania’s constitutional Framers minimized restrictions on

popular participation in government. They theorized that this model best represented a good

republican government. The 1780s demonstrated two important problems with the political

structure created by the Articles of Confederacy. It did not create an environment conducive to

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any unified efforts between the states and each state proved generally unable to cope with the

economic problems they faced. So while this construction reflected an idealized republic,94 this

idealism quickly clashed with a series of intractable problems such as war debt and interstate

commercial issues. Again and again, the individual states demonstrated that they lacked the

resources for addressing the problems posed by debt from the Revolutionary War, interstate

commerce, or engaging in military campaigns. At the same time, the Confederation Congress

lacked the powers needed for assuming a leadership position on these issues. By 1787, it had

become evident that the structure outlined by the Articles of Confederation needed substantial

revision or replacement since it had clearly demonstrated its weakness as a national government.

Chapter 5 - The Federal Constitution: An AnalysisIn many ways the Federal Constitution represented a clarification, rather than a

revolution, for the Articles of Confederation. The Articles of Confederation identified the states

as the most important political unit. In this way, it fit with the model outlined by Locke’s Two

Treatises on Government; at the same time it also represented a distinct reaction against the

nationally centralized model embodied by the British Parliament. The cracks began to show soon

after independence. Saddled with no control over paper currency, no independent income source,

and massive debts, the Confederate Congress faced an almost insurmountable dilemma.

Utilizing the states as the central political institutions in the American Republic only exacerbated

these issues by preventing any unified responses. The Federal Constitution did not alter each

state’s political structure, but expanded and clarified the Federal Government’s responsibilities.

Madison wrote that this “act, therefore, establishing the Constitution will not be a national, but a 94 Switzerland is an often cited example. You have to give an example of who and how it is cited. You cannot say that it is frequently cited and give no citations.

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federal.”95 Like John Adams in Massachusetts, Madison envisioned the Federal Government as

an entity that reflected and relied upon its constituents but also functioned as an independent and

superior governing organization. This idea tweaked, rather than revolutionized the national

government’s role in American politics and addressed the difficulties experienced by the

Confederation Congress.

The differences between the Articles of Confederation and the Federal Constitution are

immediately evident. Article I Section II stated that “the House of Representatives shall be

composed of members [who] . . . shall have the qualifications requisite for electors of the most

numerous branch of the state legislature." Rather than retaining the voluntary “Congress”

established by the Articles of Confederation, the Federal Constitution established a bi-cameral

structure: the House of Representatives and the Senate. By eliminating voluntary participation in

Congress the Constitution established its supremacy as the nation’s dominant political body.96

Article I Section II stated the House of Representatives contained people elected according to the

requirements in each state. The individual states retained their individual electioneering routines,

while the Federal Government created a uniform time and proportional representation structure.

Each state was allowed “at least” at least one Representative and cannot “exceed one for every

thirty thousand."

By creating a minimum for representation as well as a proportional system for allocating

representatives the Federal Constitution avoided a problem outlined by Thomas Jefferson in

Notes on Virginia. According to Jefferson, a danger with the assembly “determining the quorum

of their own body which may legislate for us . . . is that from forty it may be reduced to four, and

from four to one; from a house to a committee, from a committee to a chairman or speaker, and

95 Madison, Hamilton, and Jay, 23996 See Article 1 Section VIII of the American Constitution for the specific duties granted to Congress. URL: http :// www . usconstitution . net / const . html # Preamble

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thus an oligarchy or monarchy be substituted under forms supposed to be regular.”97 While

Jefferson acknowledged that “no legal obstacle to the assumption by the assembly of all the

powers legislative, executive, and judiciary” he also pointed out that in 1776 and 1781, “it was

proposed in the house of delegates to create a dictator, invested with every power legislative,

executive, and judiciary, civil and military, of life and death."98 The problem did not lay with

peoples’ intentions, but with the historical precedents they utilized. Jefferson wrote, “they had

sought this precedent in the history of Rome . . . Their constitution, therefore, allowed a

temporary tyrant to be erected,99 under the name of a dictator and that temporary tyrant, after a

few examples, became perpetual.”100 He pointed out that without an appropriate and empowered

structure it would be too easy for a legislature to appoint a dictator. Jefferson urged his

countrymen to apply “the proper remedy, which is a convention to fix the constitution, to amend

its defects, to bind up the several branches of government by certain laws, which, when they

transgress, their acts shall become nullities."101 Jefferson also advised for creating a system,

which allowed its citizenry an outlet, so as to mitigate the need for constant revolts.

Although the Articles of Confederation had supposedly remedied this situation Shay’s

Rebellion showed otherwise. The rebellious citizens’ inability to satisfactorily resolve their

political complaints with the state government, a lack of a federal appeals system, and the states’

inability to remedy the economic situation highlighted the problems associated with the pre-

Constitution political arrangement. Essentially, the farmers rebelled because they felt as if they

had no alternatives. Although imperfect, Jefferson felt that the Federal Constitution represented

97 Thomas Jefferson, The Life and Selected Writings of Thomas Jefferson, Ed. Adrienne Koch and William Peden (New York; The Modern Library, 1993), 226-227.98 Jefferson, 230.99 Jefferson is referring to Caesar, who eventually declared himself tyrant for life. This happened despite assurances to the contrary. 100 Jefferson, 230.101 Jefferson, 230.

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an important step towards eliminating “elective despotism." Jefferson thought that the Federal

Constitution did not create “the government we fought for;” rather it represented the “one which

should not only be founded on free principles, but in which the powers of government should be

so divided and balanced among several bodies of magistracy.”102 This reflected the opinions that

Jefferson had shared with James Madison leading up to the Constitutional Convention on the

need for reforming the Articles of Confederation.103

Madison also saw the need for a reformed federal government. He advocated for “energy

in government,” which was “essential to that security against external and internal danger and to

that prompt and salutary execution of the laws which enter into the very definition of good

government.”104 Madison insinuated that the Confederation Congress had not represented an

energetic government as a result it had proven singularly unsuccessful in protecting the

American Republic from internal and external threats or enforcing its laws. In the end, Madison

argued that the Confederation Congress had failed because it had not been given the proper tools

for the job. Madison’s Federalist Essays, when compared against his earlier conversation with

Jefferson, demonstrated that between 1782 and 1787 his opinions had changed and developed as

difficulties with implementing republican theories surfaced.

Problems aside, Madison still believed that “all power should be derived from the

people,” and that “those intrusted with it should be kept in dependence on the people by a short

duration of their appointments.”105 However this “short duration” could not compromise stability,

which Madison argued, “requires that the hands in which power is lodged should continue for a

length of time the same.”106 In this way, Madison refuted the ideas laid out most prominently by

102 Jefferson, 220.103 See Jefferson, 377-8 and Jefferson, 382-3.104 Madison, Hamilton, and Jay, 223105 Madison, Hamilton, and Jay, 223.106 Madison, Hamilton, and Jay, 223.

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the 1776 Pennsylvania Constitution. The Pennsylvania Constitution asserted that a unicameral

government, with annual elections represented the best bulwark against tyranny. Madison refuted

this model as both “improper and unsafe” because it intermixed “the different powers of

government in the same body of men.”107 Additionally, by 1787 annual elections had proven

ineffective at creating stable, working governments. Although they kept the government closely

tied to popular opinion, this closeness proved a double-edged sword. Annual elections did

prevent tyrannical governments from arising; however they also prevented effective governance

and long term planning. Additionally, Madison wrote that potential dangers posed by single

body legislature were exemplified by “the government of England, which has one republican

branch only, combined with an hereditary aristocracy and monarchy, has with equal impropriety

been frequently placed on the list of republics.”108 To Madison, a balanced government

represented “a due foundation for that separate and distinct exercise of the different powers of

government.”109 To ensure “the preservation of liberty,” Madison stipulated that “each

department should have a will of its own;” additionally no person could occupy two different,

simultaneous positions within the government.”110 Like Adams, he argued that effective

government required stability and multiple, rather than singular, departments.

Funding was another area where the Federal Constitution expanded and clarified the

relationship between the states and the Federal Government. Under the Articles of

Confederation, the individual states determined their contributions to the general treasury.

Sections II, and VI-IX of the Federal Constitution made direct taxation by the Federal

Government mandatory. According to Article I Section II “direct taxes shall be apportioned

107 Madison, Hamilton, and Jay, 224.108 Madison, Hamilton, and Jay, 237.109 Madison, Hamilton, and Jay, 319.110 Madison, Hamilton, and Jay, 318.

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among the several states, which may be included within this union, according to their respective

numbers." This represented a significant departure from the Articles of Confederation for several

reasons. Not only did this clause give the new Federal Government considerable financial

resources, it also increased its independence from the states control. For many Anti-Federalists

this represented a disquieting expansion in federal powers since their previous experience with

such a powerful national government had been the British Parliament. Yet the failure of the

Articles of Confederation, in part because the Confederation Congress lacked a self-financing

mechanism, meant that few if any alternatives existed.

Section VII further emphasized the Federal Government’s need for financial

independence. It established that “all bills for raising revenue shall originate in the House of

Representatives, but the Senate may propose or concur with amendments as on other Bills.”111

The importance of this section is that it further separated the Federal Government from its

previous reliance upon state governments. More to the point, establishing the Federal

Government as a financially self-sustaining entity signaled a significant intellectual departure

from the Articles of Confederation. This also indicated that Madison and the other Federalists

recognized that the limitations imposed upon the Confederation Congress had rendered it fiscally

and legislatively inert. With the Federal Constitution, Madison and the Federalists wanted the

governmental roles and responsibilities clarified and expanded without trampling on the

individual states rights.

Edmund Morgan wrote in his book, Inventing the People: The Rise of Popular

Sovereignty in England And America that to accomplish this goal “Madison recognized that it

[the Constitutional Convention] could achieve the objectives he had in mind for it only by

111 See Article I Section VII of the U.S Constitution.

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appealing to . . . the people of the United States as a whole."112 By empowering the Federal

Government, financially and politically, Madison sought to avoid the political and economic

problems, which had plagued the American Republic since 1776. According to Morgan,

Madison argued that the states had fundamentally failed in their responsibilities to their

constituents. The root of the problems lay with the states’ financial weakness and their political

structures. The debts accumulated during the American War for Independence coupled with the

runaway inflation posed quite a problem. The intense economic displacement and devastation

caused by the war exacerbated the states already weak financial positions. The political structure

adapted by the Articles of Confederation did not provide any relief; instead each state retained

responsibility for their own debt. Because no single state possessed the financial resources for

paying off these debts they eventually became trapped in a cycle of massive debt, shrinking tax

receipts, and citizen frustration and anger.

Structural issues aside, Woody Holton113 argued that the economic crisis created by the

states weak financial situations forced the Constitutional Convention. Their distress created an

effective rationale for Section VIII, which explicitly outlined and defined the Federal

Government’s financial obligations. Most importantly the Constitution required Congress to

“regulate commerce . . .to pay the debts; . . . to coin money, regulate the value thereof . . .”114 In

short, the Federal Government’s new economic primacy was specifically aimed at relieving the

many states’ crushing debts. Article II gave the Federal Government access to a much larger

financial base than any individual state. As a result, the Federal Government could more easily

pay down the debts accumulated by the states. Additionally, by centralizing commercial relations

112 Edmund S. Morgan, Inventing the People: The Rise of Popular Sovereignty in England and American (New York; W. W. Norton & Company, 1988), 267.113 See Woody Holton, “Did Democracy Cause the Recession That Led to the Constitution,” The Journal of American History 92: 2 (September 2005) for more information.114 See U.S Constitution Section I Article VIII

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the Constitution removed an important impediment to fostering a national identity. Previously

states, such as New Jersey and New York, had experienced cool relations over this issue. Since

New Jersey lacked a major trade port its citizens utilized Philadelphia and New York City.

Following independence, New York and Pennsylvania erected trade regulations for interstate

commerce. Although both states exempted American made goods, they did place significant

rates (e.g., 10% in NY)115 on any foreign goods moving through their ports. These duties created

significant difficulties for many merchants operating from New Jersey, because it placed a

premium on top of costs already incurred by the shipper.116 Not only did the interstate tariffs

create economic tiers between the different states they also increased the costs associated with

conducting interstate business. For instance, merchants in New York did not pay the 10%

premium required for out of state merchants. The Constitution abolished these tiers and for this

reason, New Jersey ratified the Constitution almost immediately. This example demonstrated

that economic concerns as well as political ideology provided significant incentive for

Constitutional ratification.

Jefferson’s writings clearly illustrate that he saw the Constitution as an effective bulwark

against anti-republican outcomes, ideas, and governments. To this end, he defined the Federal

Government’s role as an institution tasked with facilitating and perpetuating virtuous and

republican economic opportunities and growth. Jefferson wrote that “young as we are, and with

such a country before us to fill with people and with happiness, we should point in that direction

the whole generative force of nature, wasting none of it in efforts of mutual destruction.”117 He

thought that the reforms implemented by the Federal Constitution would help make the United

115 See David Flynn "Credit in the Colonial American Economy," EH.Net Encyclopedia, ed. by Robert Whaples, March 16, 2008. URL http :// eh . net / encyclopedia / article / flynn . colonialcredit 116 Calvin H. Johnson, “The Panda’s Thumb: The Modest and Mercantilist Original Meaning of the Commerce Clause,” William and Mary Bill of Rights Journal 13:1 (October 2004), 13. 117 Jefferson, 263.

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States “invulnerable to Europe” by turning “all our citizens to the cultivation of the earth; and, I

repeat it again, cultivators of the earth are the most virtuous and independent citizens.”118

Jefferson recognized that small-scale industrialization was inevitable. However he equated

republican virtue with agricultural labor and saw the Constitution as a tool to this end.

Accomplishing this goal necessitated a strong and balanced federal government supported by an

adequate and secure financial structure.

In Federal No. 41 Madison outlined the case for expanding and solidifying the federal

revenue stream. Speaking to the Atlantic “frontier” and especially Virginia, Maryland, and New

York, Madison stated “the inhabitants of the Atlantic frontier are all of them deeply interested in

this provision for naval protection.”119 Madison pointed out that “in the present condition of

America, the State more immediately exposed to these calamities have nothing to hope from the

phantom of a general government which now exists.”120 Given their independently limited

resources it also appeared unlikely that an individual state could support fortifying coasts,

otherwise they would have done so. With this situation in mind, Madison rebutted the suggestion

that the Federal Government should continue only collecting “external taxation." Madison wrote

that while “it cannot be doubted that this will always be a valuable source of revenue . . . but we

may form very mistaken ideas on this subject, if we do not call to mind in our calculations that

the extent of revenue drawn from foreign commerce must vary with the variations.”121 Rather

than relying solely upon unstable revenue sources, Madison urged the Constitutional Convention

towards another solution: internal taxation. Not only would this alleviate the economic issues

facing the states, but it would also enable to grow with the nation.

118 Jefferson, 264.119 Madison, Hamilton, and Jay, 257.120 Madison, Hamilton, and Jay, 257.121 Madison, Hamilton, and Jay, 257-8.

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Unlike Jefferson, Madison acknowledged that, at some point, the American economy

would evolve beyond agriculture and small-scale industrial complexes. In fact, Madison argued

that rather than existing as a net importer the United States might eventually develop into a net

exporter. At that point, burdening incoming products with tariffs would not benefit the American

economy, especially if the imported goods contained raw materials for American products. He

closed stating “a system of government meant for duration ought to contemplate these

revolutions and be able to accommodate itself to them.” Madison conceded that some might see

the new Federal Government’s ability to “lay and collect taxes, duties, imposts and excises to

pay the debts, and provide for the common defense and general welfare of the United States” as

too broad.122

Anti-Federalists, such as Harry Lee III, had many concerns about the Constitution,

specifically relating to its legality and the extent to which it expanded the Federal Government’s

role and responsibilities. In a letter to George Mason, he wrote that “the 13th article of the

Confederation precluded us from giving an opinion concerning a plan subversive of the present

system and eventually forming a New Confederacy of Nine instead of 13 States.”123 In addition,

Lee felt that the Federalists moved with undue haste and without considering the ramifications

for their actions. In an October 16, 1787 letter to Edmund Randolph, Lee expanded upon his

concerns towards the Constitution. He claimed that “it cannot be denied . . . that this new

Constitution is, in its first principles, highly and dangerously oligarchic.”124 Lee felt that the

Constitution concentrated too much power into only a few hands with too little accountability.

Specifically, he feared that the more numerous Northern states would band together and create

122 Madison, Hamilton, and Jay, 258.123 See Richard Henry Lee, “Letter to George Mason October 1, 1787.” URL: http :// teachingamericanhistory . org / library / index . asp ? document =1846 124 See Richard Henry Lee, “Richard Henry Lee’s Objections to the Constitution.” URL: http :// teachingamericanhistory . org / library / index . asp ? document =1848

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“an oppressive monopoly upon the five Southern States.”125 All in all, he thought the

Constitution created a government perilously close to a dictatorship, but ultimately could not

propose a workable alternative.

Madison objected to Anti-Federalist concerns for several reasons. As with any republican

system the Federal Government ultimately relied upon citizens and their elected representatives

for support and legitimacy. Therefore, the Federal Government could hardly disrupt the nation’s

delicately balanced political foundation by imposing excessive taxes or “tyrannical legislation."

Second, by 1787 Madison and Jefferson had already concluded that the Confederation Congress

represented a broken political system. As a result they claimed that it required substantial

revisions. No system would be perfect, but Madison and Jefferson felt confident that they could

create a system, which balanced theoretical concerns with the tools necessary for everyday

legislation.

Notably, the taxation and revenue clauses redressed the previous political system’s

inequities by shifting responsibility to the central government, and away from the states. In doing

so the Constitution fundamentally altered the relationship between the states and federal

government. This change is evident in the Constitution. Both Madison and Jefferson recognized

that the key to a successfully implementing the Federal Constitution was the citizen and their

representatives. Therefore, breaking any economic or political boundaries between the states

became imperative.

This does not mean that Jefferson and Madison supported direct democracy. On

December 20, 1787 Jefferson wrote to Madison stating that

[I] approve of the greater House being chosen by the people directly. For though I think a house so chosen, will be very far inferior to the present Congress will be very illy qualified to legislate for the Union . . . ; yet this evil does not weigh

125 Lee, URL: http :// teachingamericanhistory . org / library / index . asp ? document =1848

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against the good, of preserving inviolate the fundamental principle that the people are not to be taxed but by representatives chosen immediately by themselves126

Ultimately, Jefferson feared that despite all the tools and rights afforded to them, the people

would not act in an intelligent and virtuous manner. In the same letter he wrote about the

executive branch and his concern over the possibility for removal especially given the lack of

term limits. He wrote that “the power of removing every fourth year by the vote of the people, is

a power which they will not exercise, and if they were disposed to exercise it, they would not be

permitted.”127 This letter illuminated Jefferson’s major fears. First, he feared that the people

would not exercise their political rights. If they did Jefferson feared that the entrenched powers

would not allow their decision to stand. He wrote “I am not a friend to a very energetic

government. It is always oppressive.”128 Instead he postulated that security was best preserved by

giving “information to the people . . . [e]ducate and inform the whole mass of the people”

because they are the “only sure reliance for the preservation of our liberty.”129

Jefferson’s extensive correspondence with Madison demonstrated his complex views

towards the general populace, its relationship to the government, and government itself.

Although they generally agreed that the Federal Constitution represented the best possible

solution for American Republic they disagreed on several points. Jefferson noted that the

Constitution did not set any term limits for government officials. He was especially concerned

about the executive branch. According to Jefferson, historical precedent indicated that a political

officer without term limits became an officer for life. Jefferson also remained a primary

proponent for the Bill of Rights, despite Madison’s objections.130 Jefferson argued that such a

126 Jefferson, 403-404.127 Jefferson, 406.128 Jefferson, 406.129 Jefferson, 407.130 Jefferson, 404.

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strong national government with no term limits for officers, especially the executive, necessitated

an enumerated Bill of Rights. Not only would a Bill of Rights assure many Anti-Federalists, it

would also protect the citizens against any potential infringements upon their rights. In the end,

Jefferson wrote that despite its omission the Constitution should be ratified because it would

“secure to us the good it contains, which I think great and important.” He concluded by writing

that a declaration of rights would “give to the whole fabric, perhaps, as much perfection as any

one of that kind ever hard.”131

Originally, Madison objected to the Bill of Rights because the Constitution did not

require Americans to surrender any individual rights. Since most states included clauses

protecting the citizens’ rights and property Madison reasoned that a national Bill of Rights would

be redundant. However, the difficulties encountered during the ratification process made him

rethink his position. Anti-Federalists specifically cited the Bill of Rights as a primary reason for

their opposition to the Constitution. North Carolina refused to ratify the Constitution unless it

contained an enumerated Bill of Rights. Massachusetts attached a list of recommendations to its

ratification again citing the need for a specific Bill of Rights. At this point, Madison recognized

the danger posed by a potential second Constitutional Convention or even non-ratification and

took preemptive action.

On May 4, 1789 he formally proposed a series of Amendments to the Congress. These

amendments specifically outlined and guaranteed rights granted to the citizenry.132 More

importantly, Madison understood that proposing and implementing a Bill of Rights would

significantly mollify his political opponents. In 1787, the “Anti-Federalists” had generally

opposed the Federal Constitution because they felt that it did not adequately defend state or 131 Jefferson, 408-9.132 He drew heavily from previous works including the Virginia Declaration of Rights, which he had helped write in 1776. For more information see “Virginia Declaration of Rights” URL: http :// www . history . org / almanack / life / politics / varights . cfm

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individual rights. The proposed Bill of Rights simultaneously strengthened the Constitution’s

legitimacy, especially among its political opponents and also reassured the public about their

guaranteed national rights.133

Madison had a similar view on popular participation in government. In his Federalist

essays, he wrote that any effective government must come from, and protect, the people. He did

not support democratic government, but recognized that any legitimate government required a

reciprocal relationship with the general populace. To prevent a majoritarian tyranny, Madison

stipulated that two branches: the executive and judiciary should remain separate from direct

election. This political arrangement reflected Madison’s and Jefferson’s’ fears that direct

elections would produce majoritarian dictatorships, which in turn, would disrupt the entire

political structure. Specifically, they cited the political and economic chaos that occurred during

the Confederation period. As a result the Constitution featured a tiered political structure, which

they reasoned would mitigate the problems posed by majoritarian governments. The

representatives in the House of Representatives were directly elected according to the individual

state laws and served 2-year terms. Each state retained two Senators selected by each legislature

for 6-year terms. The Electoral College selected the President and Vice-President. This

arrangement had the dual benefit of allowing for popular participation in the Federal

Government,134 while simultaneously limiting that participation to one level government.

Jefferson and Madison acknowledged that public support legitimized government, but

they also agreed that popular participation in politics could be problematic since the most

popular option did not always represent the best option. All told, the differences between the

Articles of Confederation and the Constitution remained small. The differences primarily lay

133 For the full text of his speech see “Madison’s Introduction of the Bill of Rights” URL: http :// www . usconstitution . net / madisonbor . html # Sec 2 134 Although “popular” depended upon the individual states suffrage laws.

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with how the Constitution clarified, and in some ways, expanded upon the powers granted to the

Confederation Congress. Madison and Jefferson played a key role in this process because: they

formulated a government structure that combined theoretical republican concepts with the

powers necessary for actual governing. Although Jefferson was in Paris during the Constitutional

Convention, Madison collated and presented their ideas as the Virginia Plan. In collusion with

Gov. Randolph he timed its release so that it dictated the debate during the Constitutional

Convention.

Chapter 6 - Madison and JeffersonJames Madison and Thomas Jefferson’s correspondence revealed that both men saw the

Constitution as a necessary device. More importantly they saw it as a modification, rather than

replacement for the Articles of Confederation. Neither man thought the published Constitution

represented a perfect document and had some concerns. These ranged from Jefferson’s view on

the executive branch and the absence of an explicit Bill of Rights to Madison’s caution towards

popular participation in the political process.

Jefferson’s main concern about the executive branch lay with “the abandonment, in every

instance, of the principle of rotation in office, and most particularly in the case of the

President.”135 He expressed similar sentiments in a letter to Mr. Alexander Donald in a letter

dated February 7, 1788. In this letter Jefferson wrote that he had two main objections to the

proposed Federal Constitution. First, he hoped that “the four latest conventions, whichever they

be, may refuse to accede to it, till a declaration of rights be annexed.”136 Additionally, he wrote

135 Jefferson, 405.136 Jefferson, 408.

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“there is another strong feature in the new Constitution, which I as strongly dislike. That is, the

perpetual re-eligibility of the President.”137 Consistent with Jefferson’s dislike for “energetic

government” Jefferson opined, “reason and experience tell us, that the first magistrate will

always be re-elected if he may be re-elected."138

Jefferson cited historical precedents in Poland, Rome, the Roman Catholic Church, the

Holy Roman Empire as the basis for his caution. For instance, he noted that although Polish

kings were technically elected the position almost always became hereditary. With this precedent

he felt that if given the power, the people would not act. And if given the power, they would be

stifled by aristocratic political elements. It’s important to note that Jefferson based his fears upon

ancient precedent rather than recent experience. Under the Articles of Confederation perpetual

elections had yielded endless turnover in government. And if somehow reelected, no incumbents

ever successfully stifled their opponents.

In some ways, the Federal Constitution seemed to represent a significant shift away from

the Articles of Confederation. In fact it remained largely loyal to the preceding document and

generally slightly tweaked, rather than overhauled, existing political arrangements. Simply put

Jefferson feared that an empowered executive branch would break with this tradition and impose

tyrannical rule upon the American Republic. Even the need to stand for re-election could become

a fiction since Jefferson did not believe that the general population could or would be allowed to

exercise their political power. Although the Electoral College could potentially alleviate

Jefferson’s executive worries, in 1787, he had no promise that it would work as advertised.

Madison took a slightly different view towards the executive branch. In Federalist No. 51

Madison wrote “in order to lay a due foundation for that separate and distinct exercise of the

137 Jefferson, 409.138 Jefferson, 405.

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different powers of government . . . each department should have a will of its own.”139 This was

consistent with his stance towards the executive during the Constitutional Convention. On

September 7, 1787 Madison seconded a motion stating, “in the election of President by the

House of Representatives, no State shall vote by less than three members, and where that number

may not be allotted to a State, it shall be made up by its Senators.”140 Although this specific

motion did not make the final version, it signified that Madison sought equality, fairness, and

stability in the electoral process.

During the convention Madison demonstrated that he remained flexible on issues that

did not impede the proposed government’s central responsibilities. For example, despite his wish

for the various branches of government to remain separate and distinct, he concurred with the

idea that “two thirds of the Senate” was needed “to make treaties of peace, without concurrence

of the President." Madison thought that because the President “would necessarily derive so much

power and importance from a state of war that he might be tempted, if authorized, to impede a

treaty of peace.”141 Taking note of John Adam’s efforts in Massachusetts Madison generally

supported the idea that the different government branches should balance out one another. In

Federalist No. 47 he specifically highlighted the Massachusetts Constitution as having a

sufficient division of political power. Additionally, Madison wrote that the Massachusetts

Constitution “correspond[ed] directly with the doctrine of Montesquieu” although the document

defined a much stricter division than the Federal Constitution.142

Madison’s actions during the Constitutional Convention and Federalist No. 51

demonstrated his commitment to balanced and diversified government as an alternative to the

139 Madison, Hamilton, and Jay, 318.140 James Madison, Notes on the Debates in the Federal Convention of 1787 Reported by James Madison, ed. Adrienne Koch (Athens; Ohio University Press, 1965), 596.141 Madison, 599.142 Madison, Hamilton, and Jay, 301.

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Confederation Congress. Repeatedly Madison wrote that a balanced government with “separate

and distinct” entities would be the most responsive to its constituents. In this case an empowered

executive branch with very specific duties (as outlined in the Constitution) represented an

important innovation and reduced the possibilities for absolute domination by the Legislative

branch. However, as Jefferson noted, the Constitution had a significant omission regarding

executive term limits. Although Madison acknowledged that this omission could create

problems, he argued that this possibility remained remote. In 1787, no perpetually elected

officials existed or, because of the state constitutions, could exist. Only after Franklin Delano

Roosevelt’s election to an unprecedented 4th term did serious investigation into term limits take

place. Eventually passed, the 22nd Amendment limited the President of the United States to two

four-year terms.

In Federalist No. 51 Madison justified the need for an independent judiciary branch as a tie-

breaking element between Congress and the Executive branches. He wrote “in the constitution of

the judiciary department in particular . . . the permanent tenure by which the appointments are

held in that department must soon destroy all sense of dependence on the authority conferring

them.”143 Madison argued that since the judiciary depended upon the Congress for creating courts

and the President/Civil Administration for appointments it must have a means for gaining

independence, therefore enabling it to stand against the other branches. The judiciary achieved

this independence through perpetual tenure. Judicial officials could still be removed in the case

of scandal, but otherwise remained politically independent once appointed and often occupied

their positions far longer than their congressional or executive counterparts. Thus whatever

dependencies a justice carried upon reaching the bench eventually dissipated therefore securing

judicial independence. Opponents argued that similar to the executive branch the judiciary posed

143 Madison, Hamilton, and Jay, 318.

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a potential threat to the American Republic. Since it retained the final say on constitutionality,

and enjoyed perpetual tenure, critics argued that the justices might forget their responsibilities to

the public; instead, critics feared that they would decide based upon personal opinions and

political allegiances.

Jefferson shared Madison’s view on the judiciary. In a letter to Madison dated, June 20,

1787, Jefferson wrote, “the idea of separating the executive business of the confederacy from

Congress, as the judiciary is already, in some degree, is just and necessary.”144 For instance,

Jefferson asked whether or “not an appeal from the State judicature to a federal court, in all cases

where the act of Confederation controlled the question, be as effectual a remedy, and exactly

commensurate to the defect.”145 Jefferson wrote that because the federal judiciary existed

independent of the Congress or President it could essentially right all wrongs. Jefferson that

establishing the Federal Judiciary as the preeminent legal authority would mitigate the fallout

from state centered cases where “judges are weak enough to decide according to the views of

their legislature. An appeal to federal sets all to rights.”146 In a letter dated December 16, 1786,

he wrote to Madison that “to enable the federal head to exercise the powers given it to best

advantage, it should be organized as . . . legislative, executive, and judiciary.”147 By creating and

defining boundaries for these government branches the Constitution bound “up the several

branches of government by certain laws, which, when they transgress, their acts shall become

nullities.”148 Jefferson stated that he disliked “energetic government” because it always led to

tyranny. To Jefferson, the Federal Government worked because the Constitution defined limits

144 Jefferson, 391.145 Jefferson, 392.146 Jefferson, 392.147 Jefferson, 377-8.148 Jefferson, 230.

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for each branch and implemented enough corrective mechanisms to assuage his fear of “a

rebellion, on every infraction of their (the citizenry) rights.”149

In Federalist No. 43 Madison wrote that “useful alterations will be suggested by

experience could not but be foreseen."150 Madison agreed with the convention that “the mode

preferred by the convention seems to be stamped with every mark of propriety."151 For this

reason the amendment process existed outside direct popular participation. This guarded “equally

against that extreme facility, which would render the Constitution too mutable; and that extreme

difficulty which might perpetuate its discovered faults."152 Here, Madison built upon his opinion

that the state governments’ direct connection with the people had rendered them too malleable

and responsive to their every whim. Madison anticipated that the Constitution would need future

amendments. However, he also recognized the danger in making the amendment process solely

dependent upon popular decisions. Additionally, Madison asserted that this process would enable

“the general and the State governments to originate the amendment of errors, as they may be

pointed out by the experience on one side, or on the other." In effect Madison supported Article

V because it represented the most effective manner for creating and implementing future

amendments.153

The 1787 Federal Constitution generally reflected the views expressed by Thomas

Jefferson and James Madison. Although Jefferson did not physically participate in the process

his constant and prolonged correspondence with Madison meant that his views were still felt. In

contrast, Madison maintained a leadership role in the Convention itself, kept a detailed recording

of the Constitutional Convention, and afterwards penned many essays supporting the

149 Jefferson, 230.150 Madison, Hamilton, and Jay, 275.151 Madison, Hamilton, and Jay, 275.152 Madison, Hamilton, and Jay, 275.153 Madison, Hamilton, and Jay, 275.

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Constitution as “Publius.” Suffice to say, Madison had a much more direct impact than Jefferson.

In summation, Jefferson himself wrote that the Confederation had been created out of necessity

and naiveté. This naiveté sprung from their inexperience with national government and the

growing pains associated with matching theory and reality.

Madison wrote in 1787 that the United States faced a severe existential crisis. According

to Madison, it was apparent that the Confederation government was not working. Its “radical

infirmity” could be traced back to the “dependence of Cong. on the voluntary and simultaneous

compliance with its Requisitions, by so many independent communities, each consulting more or

less its particular interests & convenience.”154 Moreover these “independent communities” and

their particular interests created significant tension between the various states. Each state pursued

a different, and oftentimes, competing agenda. Madison stated that the Articles of Confederation

provided no relief or recourse for these states. In fact, its inability to manage the relationships

between the states helped facilitate support for “the new Constitution, superseded the old.”155

Furthermore Madison noted that the structure implemented in the Articles of Confederation

meant that legislatures “retained an aversion” to any cooperation with the national government

unless it suited their needs. This in turn contributed to “the rapid growth of anarchy in the Fed

System, and the animosity kindled among the states by their conflicting regulations.”156 For these

reasons, Madison felt that without significant reform the American Republic would splinter into

competing states, which would eventually be swallowed by the European powers.

Jefferson had very similar expectations for the Constitution but had an entirely different

mindset regarding the new government’s purpose. In his Notes on the State of Virginia Jefferson

used Virginia as a case study for the proposed Federal structure. Jefferson noted that “this

154 Madison, Hamilton, and Jay, 7155 Madison, Hamilton, and Jay, 7156 Madison, Hamilton, and Jay, 8

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constitution was formed when we were new and unexperienced in the science of government."157

As a result, the Virginia Constitution made several important errors. First, “the majority of the

men in the State, who pay for its support are unrepresented in the legislature.” Second, Jefferson

wrote that even “among those who share the representation, the shares are very unequal."

Specifically, Jefferson referred to the ongoing political conflict between the western and eastern

counties over adequate. The older eastern counties continuously denied the newer, and faster

growing, western counties proportional representation in the House of Burgess. They feared that

allowing proportional representation would endanger their political control and threaten their

economic dominance. Third, Jefferson believed that the Virginia legislative body was “by its

constitution, too homogeneous,” and ultimately too unrepresentative when compared the

Virginia population. Jefferson’s fourth critique addressed the centralization of all power:

legislative, executive, and judiciary, “result to the legislative body."158 He felt that this

centralization combined with the legislatures unrepresentative composition created undue

political tensions within the state and did not encourage a good republican government.

According to Jefferson, “the concentrating these in the same hands is precisely the

definition of despotic government" represented the Virginia government, and by extension, the

Confederation Congresses true fallacy. Jefferson wrote that a “plurality of hands and not by a

single one”159 represented the true ideal foundation for good government. Above all, Jefferson

urged vigilance against any groups facilitating a despotic government, especially an elective

despotism. To this end, he continuously advocated for a balanced, divided, and popularly derived

government. The three primary branches of government should remain as independent as

possible, with minimal overlap.

157 Jefferson, 220.158 Jefferson, 220-222.159 Jefferson, 220-222.

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In 1787, the mounting economic crises and political tensions between the states

convinced Jefferson that the “situation [was] indeed perilous.” He hoped that a convention “to

fix the constitution160, to amend its defects, to bind up the several branches of government by

certain laws”161 would be called in order to save the republic. There is a direct connection

between Jefferson’s Notes on the State of Virginia and his national concerns on the American

Republics political health. In his letters, Jefferson clearly drew inspiration from his thoughts on

the political structure in Virginia and applied them to the larger picture. Only a balanced,

representative, and truly republican government could hope to truly protect its citizenry and

allow them to spread and flourish across the American continent.

On July 31, 1788 he wrote to Madison that he thought the Constitution represented a

“good canvas, on which some strokes only want retouching. What these are, I think . . . calls for

a bill of rights."162 Citing England as an example Jefferson noted that although “for the few cases

wherein the suspension of the habeas corpus has done real good, that operation is now become

habitual."163 To avoid this outcome Jefferson wrote that a federal guarantee on certain rights was

necessary.164 Although the individual states could still retain own Bill of Rights a federal

government required a federal declaration.

On March 15, 1789 Jefferson again wrote to Madison thanking him for his “thoughts on

the subject of the declaration of rights." Jefferson told Madison that not only would the

declaration of rights strengthen and protect the individual citizen against tyranny. It would also

put a legal check “into the hands of the judiciary. This is a body, which, if rendered independent

and kept strictly to their own department, merits great confidence for their learning and

160 Jefferson is referring to the Articles of Confederation.161 Jefferson, 230.162 Jefferson, 416-17.163 Jefferson, 416-17.164 Jefferson, 416-17.

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integrity.”165 And although a declaration of rights might inconvenience some government

functions, Jefferson wrote that “the good in this instance, vastly overweighs the evil.”166

Jefferson conceived the Constitution as a safeguard against tyranny, both within and without. His

letters to Madison and Notes on the State of Virginia aptly demonstrate this concern. He believed

that if given the appropriate safeguards and strictures then the American Republic would not

only survive, but thrive. Although the lack of term limits and no Bill of Rights perturbed him,

Jefferson supported the Constitution because it represented a flawed, but necessary solution to

the problems faced by the American Republic.

Chapter 7 - ConclusionThe Federal Constitution drafted during the Constitutional Convention of 1787 morphed

the previous united States in Congress into the United States of America. James Madison and

Thomas Jefferson played an absolutely essential role in creating the theoretical underpinnings for

this transformation. To these men a government derived from its citizenry, yet not entirely

dependent upon them was the best protection against tyranny. They recognized that although

people were not perfect, if they could be provided with an appropriate framework than the less

desirable tendencies could be mitigated. Although only the House of Representatives retained a

direct connect with the citizenry (according to the individual state). It also remained the primary

originator for almost all government functions and responsibilities. Superior legislative bodies

existed yet they remained inextricably tied to the House of Representatives and, through it to, the

people.

165 Jefferson, 426.166 Jefferson, 426.

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The United States created in 1787 did not represent a dramatic departure from the

political structure defined by the Articles of Confederation. Rather it reflected an understanding,

based upon experience, that the model created by the Articles needed some serious

modifications. Jefferson and Madison realized that the structure created by the Articles had

contributed to the chaos that had dominated between 1782 and 1787. The Confederation

Congress’ voluntary nature had reduced it to a meeting place for the states, rather than a

legislative body for the nation. Although this had been by design, experience showed that any

national body required an independence from the states to work properly. This separation

between the state and federal political bodies represented an attempt by Madison and Jefferson to

mitigate problems associated with democracy and to introduce a previously absent stability into

the process. They felt that a tiered political system represented the best method for preventing

drastic and irrational Constitutional mutations as well as maintaining a connection, but not

dependence upon, with the general population and states.

Historians have typically cited ideological reasons as causes for the American Revolution

and the development of the American political system. However, they often ignore the fact that

the Constitution reflected tremendous ideological input from both the Anti-Federalists and

Federalist. Given the ideological conflicts, it’s curious that the Constitution was ratified at all.

Even though the Framers were certainly motivated by ideological concerns, ultimately real world

events and issues forced their hands. In 1786, they convened at Annapolis to discuss methods for

reducing interstate commercial rivalries. Although ideological concerns may have influenced the

solutions proposed, the convention would never have occurred without a real world need.

Similarly, the Constitutional Convention occurred because, based upon their experiences, the

delegates at the Annapolis Convention perceived the Articles of Confederation as a flawed

77

document. And although Anti-Federalists attacked specific points in the proposed Constitution,

such as the omission of a Bill of Rights, they lost out because they could not propose a workable

alternative to the model created by Madison.

Above all else the Federal Constitution ratified by the Constitutional Convention and then

by the states represented a series of compromises. States with smaller populations demanded that

all states receive uniform representation in Congress. More populous states required the opposite

outcome. The Connecticut Compromise gave both sides what they wanted: a proportional House

of Representatives and a uniform Senate. Madison and Jefferson saw a greatly expanded federal

government as the key to the American Republic’s survival. The Constitution created a greatly

expanded Federal Government, while also leaving many state institutions and responsibilities

intact. The desire to create a perfect (or nearly so) republican government in 1776 had not gone

away by 1787. Instead this desire, best captured by the Articles of Confederation, was changed to

incorporate the experience gained during the 1780s. Madison and Jefferson recognized that the

Constitution would exist as a living document and recognized that longevity depended upon

creating a system conducive to changing circumstances. As a result, the Federal Constitution is

still in use today although it has been significantly changed in the previous two hundred and

twenty five years.

78

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