Textbook for American Surveys
Looking back, we get
a false sense of inevitability about the success of the
early United States. Looking forward from 1781,
there was less optimism about its prospects. The
Revolution was harder than most people today
realize. Soldiering was dangerous, thankless and
painful, civilians suffered economically because of the
long blockade, and politicians put their lives on the
line organizing the revolt.
After all that, the hard work started: building a country from scratch. It wasn’t really from scratch, in their case, because the colonies had a long tradition of local self-rule behind them, but they nonetheless faced a challenge with no self-sufficient economy, little history of unity amongst themselves, and no standing military to speak of. In front, lay the challenge of creating the world's first major republic since ancient times.
Not only do most revolutions fail, there was little historical precedent for representative governments. The Founders knew that because they were amateur historians themselves. Greek Athenians invented a pure form of democracy in the 6th century BCE, where citizens voted directly on issues. But those voters proceeded to make a series of mistakes, getting the city-state into ill-advised wars, and then killing religious skeptics because they thought their lack of faith caused them to lose the wars. Romans provided the most durable example, maintaining a republic for around 500 years that reverted to a dictatorship in the 1st century BCE. Smaller republics existed in medieval Switzerland (confederacies protected by the Alps from the Austrian monarchy), Florence, United Provinces (Netherlands), and some German and Russian city-states (mercantile republics), where wealthy merchants had managed to wrest power away from the landed nobilities traditionally tied to monarchies. Large-scale republics weren't a part of Europe's political landscape, though. The English Civil War created a republic of sorts during the Interregnum of the 1650s, but they restored their monarchy a decade later. Still, England had a long heritage of its people thinking that their government owed them something, and had gradually evolved a mixed system where the Crown shared power with Parliament and ministers.
The British American colonies provided some of the best examples of republics, because they'd mostly run themselves for 150 years by the time the Revolution rolled around. But no country had attempted a single republic on a geographic scale as large as eastern North America since the Romans. The American rebellion hadn't even been aimed at getting rid of the king at first, only at protesting Parliament's taxes. Now, just a few years later, they had no king or parliament and were trying to launch a form of government with no promising track record. As of 1777, they hadn't even settled on a good flag yet. They stole their design for the first Continental Colors from (of all people!) the British East Co., importers of the very tea the Sons of Liberty ceremoniously tossed into Boston's harbor. Clearly, both the Founders and Betsy Ross had some work to do.
Articles of Confederation: Accomplishments
Americans tried twice to come up with a successful formula. The first, the Articles of Confederation, were drawn up during the Revolutionary War and lasted until 1788. The second, the Constitution, was drawn up in 1787 and still used today, making the United States the oldest major government on earth (the English House of Commons, specifically, has met continuously since 1689, and Iceland's Althing since 930 AD).
Before looking at the problems with the Articles that led the Founders to abandon them, it’s worth looking at what worked well under the Congress of the Confederation, or Confederation Congress. First, and easiest to overlook, is the very fact that the Rebels (with some help from France) won the war with limited resources and domestic support against a formidable army.
Second, it might have been too jarring to go from separate colonies to unified states all at once. The colonies had only unified just prior to the war, mainly for military expediency. Think of what's going on in Europe in our lifetimes, if you pardon an imperfect analogy. Hoping to avoid future conflict, Europeans banded together after World War II to form the European Union (EU), allowing workers and goods to flow freely across national borders. Later, after incongruous currencies caused trade imbalances, eleven of the EU countries went in together on a common currency, the Euro. Yet, the combination of a monetary union without a fiscal union, where a central government decides on the budget, now plagues the continent as the more productive North (i.e. Germany) bickers with the more free-spending South (e.g. Greece and Italy). It remains to be seen whether the continent will ever unify, but it won't transition into a country quickly, if it ever does at all.
The U.S., though, strengthened its economy by banding together early, between 1776 and 1787, with the Articles of Confederation serving as a segue, or transition, from union to real nation. Then, with the revised Constitution the Founders gave the national tier control over interstate trade with the Commerce Clause to prevent the states from passing tariffs and barriers against one another. The Articles, though, were a useful stepping-stone as citizens wrapped their heads around identifying with a bigger political unit -- a process that wasn't complete until a painful civil war 80 years later. Given the lack of representative governments to study historically, the early individual states provided a laboratory of test cases by each drawing up their own constitutions. The founders drew on those examples when they drafted a national constitution in 1787. The federal combination of state and national power serves a similar purpose today. Take, for example, a key issue like hydraulic fracturing, or fracking -- the type of drilling that involves horizontally injecting chemicals, sand and water into shale rock to capture hydrocarbons like natural gas and oil. Fracking has enormous advantages and drawbacks, promising the U.S. boundless supplies of cheap energy (i.e. economic growth) and decreasing reliance on the Middle East, while potentially polluting air and water aquifers, using a lot of already scarce freshwater, and accelerating climate change through methane leaks, if done carelessly. States have compromised in different ways, with some banning it altogether (e.g. California and New York), and some saying "drill baby, drill." Colorado brought drillers and environmentalists together to draw up sensible regulations. If the issue was only before the national government, who knows what would happen, but our regulatory system allows states to study each other to see what's working. Eventually, maybe the national government can adopt a successful state model like Colorado's through the EPA. It's interesting to think about the basic structure of shared power between the states and national government, especially since polls show that ¼ of Americans favor their state seceding from the U.S.
Third, among accomplishments under the Confederation Congress, the country not only won the war, but also survived the economic turbulence of the first decade, when there was no strong national currency (the phrase ain’t worth a continental originated in the 1780s), as the states reeled under war debt. The country itself was flat broke, with Congress indebted to the states and foreign countries. It was a mess that had to be cleaned up and re-organized down the road but, in the meantime, the chaos didn’t take down the fledgling country.
Fourth, Congress established standards for weight, volume and distance -- unfortunately adopting the English (or Imperial) System just a few years before the French institutionalized the more intuitive, user-friendly metric system during their revolution. The association of metric with France is one reason some Americans resisted transitioning later to "athiestic" units. Early U.S. customary measurements were roughly similar to those codified in England in 1824:
Dating back to Roman and Anglo-Saxon history, these proportions have some folksy charm, but there's no common standard. Only an expert could take you from a grain to a ton, and few among us could gauge the difference between a Gunter's chain and a furlong. Volume isn't a total mess, though it's not readily apparent how many jiggers equal a hogshead. In an age before accurate scales, it's a wonder more barterers didn't strangle each other. That might partially explain why, as a matter of custom, deals and lawsuits were negotiated, sealed and settled over a pottle or two of liquor.
Later Americans adopted the metric system in science, some industry, track & field (1980s) and the military (1949) for some precision measurements. Thankfully, Thomas Jefferson established U.S. currency in metric units of ten from the beginning. The early dollars, pegged to English currency, were similar in size and composition to Spanish dollars, and Spanish dollars and Mexican pesos were legal tender in the U.S. until 1857. One theory is that the pesos' scroll-wrapped columns (the Pillars of Hercules on the Spanish coat-of-arms) gave rise to the famous $ sign. For those that cared to keep time, they retained the Babylonian sexagesimal (base 60) system of sixty seconds in a minute, sixty minutes in an hour and 360 degrees in a circle.
As a fifth accomplishment, the Confederation Congress settled disputes between the states over western lands, which is another problem easy to overlook in hindsight. Some of the original colonial charters granted territory "from sea to sea," one of the reasons the colonists hated the British Proclamation Line along the Appalachians. So, by the 1780s, maps were starting to show a series of difficult-to-manage horizontal bands (right). States were even claiming areas above and below their respective stripes. Virginia, Massachusetts and Connecticut claimed the Old Northwest Territory in the Great Lakes region. The rebel state of Franklin (aka Frankland, or the Free Republic of Franklin, now in Tennessee) even seceded from North Carolina.
The Confederation Congress convinced the states to do the logical thing and give up their western claims. Consequently, they not only won the Revolutionary War, they arguably prevented civil war, or at least serious civil conflict. However, they accidentally sowed the seeds for civil war down the road by regionalizing slavery. They banned slavery in the Northwest Territories, but failed to in new territories south of the Ohio River, thus creating a north-south divide over slavery when the original northeastern states gradually abolished slavery after the Revolution.
Jefferson set up a procedure in the Northwest Ordinance of 1784-87 whereby the new western lands could become territories after attaining a certain population threshold, then draft a state constitution in line with national constitutional principles and apply for statehood. These new states would come in as equal partners to the old states. Instead of adopting the English model of growing subordinate colonies – the system the colonies had chaffed under – the U.S. adopted the Roman model of growing into contiguous areas, with new areas enjoying equal status. The first exceptions to the contiguity principle were Alaska and Hawaii, but they too came in as equal states in the 1950s.
Jefferson's Land Ordinance of 1785 dictated how the territories would be further subdivided down into square mile sections and acres (left). The Ordinance is responsible for the familiar patchwork pattern you can see flying over flat farming areas today.
Articles of Confederation: Failures
Overall, though, the Articles didn't bind the country together tightly enough. Its drafters, including John Dickinson most influentially, took Thomas Paine's advice of unifying the states, but keeping most of the power at the state level. The national government had no real executive branch, national court or significant congress, and nothing could be done without nine of the thirteen states agreeing to it. There was a president of Congress -- John Hancock, Samuel Huntington and John Hanson of Maryland were really the first American presidents, not George Washington, and Washington always referred to Hanson as the first president as he was the first elected and first to serve a full term. But these men just presided over Congress and didn't have much power. The states also printed their own money and negotiated their own treaties with foreign countries. The U.S., in other words, was heading toward an arrangement similar to the modern European Union, where an umbrella serves some purposes, but doesn’t constitute a true country that citizens identify with. People identified mainly with their states and, even years later, when Jefferson said he loved his country, he meant Virginia not the U.S. The same held true of Confederate General Robert E. Lee two generations later. While somewhat torn over allegiances in the Civil War, he ultimately chose to fight for his "country" of Virginia.
There were also problems under the Articles of Confederation controlling civilians. Disgruntled war veterans from Massachusetts, led by Captain Daniel Shays, seized arsenals and marched east to appeal to the state government in response to rising taxes, demands that they pay for goods in hard currency (rather than barter) and high farm loan payments with usurious interest rates. They wanted transparency among political leaders in league with financiers, and prosecution of corrupt officials. The farmers' frustration was understandable, to say the least. Aside from not being paid well to fight, many veterans never got their promised land after the war, or the notes they got instead became worthless. Shays himself received nothing for all his years of service, and then returned home to find his farm getting foreclosed. Also, monetary deflation increased the real value of their loan payments. They wanted titles to be held by the farmers who were actually improving the land, not landlords or speculators.
In the bankers' defense, farmers had taken out loans they wanted to forfeit on, and the bankers (who didn't have anything to do with their low wartime pay) couldn't just stand by and have their money stolen from them. While the lower house of Massachusetts' legislature sided with the rebels, the upper house side with the farmers' creditors. There were several small-scale skirmishes as the rebels tried to close down state courthouses and seize arms. Massachusetts raised their own militia and arrested the rebels (two were hanged), but moneyed interests still found the whole episode unsettling. Shay’s Rebellion raised fears in other states and, at one point, troops even threatened the Confederation Congress in Philadelphia. It also echoed an earlier uprising in the Carolinas before the Revolution called the Regulator War, a drought and debt-fueled revolt of small farmers and tenants against corrupt officials and wealthy landholders.
Even before Shay's Rebellion, a consensus was forming among the powerful that class war might only be averted with a strong, central government. They weren't talking about arguments over whether the wealthy should pay 36% or 39% of their income toward taxes, the way we are today when we throw the term class warfare around; they were talking about class warfare of the sort that happened in Shay's Rebellion, with guns. Shay's Rebellion underscored, for one, the necessity of establishing a more dependable and stable currency. European traders skeptical of early state currencies were demanding gold, and American merchants on the coast were, in turn, asking backcountry farmers for gold they didn't have access to. High inflation followed by steep deflation whipsawed the young country's fragile economy, leading to predictable conflict between lenders and borrowers. Inflation victimized the eastern bankers (lenders) who lent to farmers, and deflation victimized the western farmers (borrowers).
Another overriding weakness was Confederate Congress’s inability to tax. Without taxes, there was no military and, without a military, the U.S. had no real control over its own civilians or diplomatic leverage abroad. They maintained a one-regiment army between 1784 and 1789, but no navy or marines. Power was mainly in the hands of state militias. Spain threatened from the South, and England never bothered leaving their forts on the western frontier, per the 1783 Treaty of Paris, because they knew the U.S. couldn’t force them to. Pirates didn’t recognize the U.S. flag and plundered merchant ships at will once they figured out the country had no significant navy. In short, someone inevitably would have overrun the U.S. if they hadn’t united behind a stronger central government, or it would've been overthrown from within. At a meeting in Annapolis, Maryland, five of the biggest states decided to hold a convention the following year, 1787, to revise the Articles of Confederation and plan canals that would connect the eastern seaboard to the growing interior.
Spirit of '87: Safeguarding Against Democracy
That winter, leaders studied what was working in the various state constitutions and what was not. You could think of the respective states as Petri dishes in a political science laboratory. Two states, Pennsylvania and Georgia, took the inspiring language of the Revolution too far and spread the vote to regular white men -- ones that didn't own substantial property. New Jersey forgot to forbid women from voting in their constitution (oops).
Regular people threatened the wealthy because of their potential to tax or pass crazy laws forgiving all debts, or forcing people to accept undependable state currencies. When it comes to money, the rich can be exploitive and the poor can be misguided, not realizing that you can't just print more money and make everyone richer. Since most people are debtors, majorities would forgive debts, but then no one would lend again, grinding the economy to a halt. Even Jefferson, the strongest promoter among the Founders of universal white manhood suffrage (he included the provision for new states with the Northwest Ordinance), said something must be done to “silence the Democratick Babble.”
Democracy, in fact, was not a word any of the Founders intended as complimentary. Whereas the Spirit of '76 helped mobilize the masses to defeat Britain, the Spirit of '87, had they used such a phrase, was more about stuffing that revolutionary genie back in the bottle. Just as they wanted to avoid a dictatorship of one (a monarchy), so too they strove to avoid a dictatorship of many (democracy). The mob, after all, was passionate and uneducated. John Adams called normal Americans "vile, detestable and loathsome." Adams prophetically, if un-democratically, wrote:
|It is dangerous to open so fruitful a source
of controversy and altercation as would be opened by
attempting to alter the qualifications of voters; there will
be no end to it. New claims will arise; women will
demand the vote; lads from 12 to 21 will
their rights not enough attended to; and every
man who has not a farthing, will demand an equal voice
with any other, in all acts of state. It
tends to confound and destroy all distinctions,
and prostrate all ranks to one common level.
Adams to James Sullivan, May 26, 1776
The Founders' goal was to compromise with a republic or parliamentary democracy, where certain qualified individuals voted for politicians, who then made the decisions. Why? As George Washington put it, “for the same reason one cools down coffee by pouring it from a cup into a saucer.” We don't often use saucers under our coffee cups anymore, but you get the point.
Fellow Virginian Edmund Randolph said, "Our chief danger arises from the democratic part of our [state] constitutions." Another fellow Virginian James Madison said that something must be done to “check those who labor under all the hardships of life and secretly sigh for a more equal distribution of its blessings.” Translation: the people who actually do the work are going to tax the rich if we let them vote. John Jay (upper right), the first Chief Justice of the new Supreme Court, didn't mince words: "those who own the country ought to govern it."
The Founders, as we call them, were the powerful. They included business leaders and planters working with lawyers to maintain a system in which they could thrive. Emboldening, reinforcing or inspiring working class Americans wasn't on their agenda, but neither was unimaginative class warfare of the sort common in many revolutions. In the North, at least, the U.S. provided remarkable avenues of upward mobility.
Unlike most of the men invited to the Philadelphia convention, James Madison studied all winter, including the Roman and English attempts at representative democracy, and what the states had done with their own constitutions. He read Charles-Louis de Montesquieu, a French philosopher who wrote favorably on England's parliamentary system. Even Montesquieu was skeptical about republicanism working in large areas with millions of people, though. The early U.S. numbered roughly three to four million.¹
The state closest to Madison's mixed-system ideal of republicanism was Massachusetts. Although the colony had famously bristled under British rule (the Massacre, Tea Party, Bunker Hill), the state's new government was a miniature version of England’s. They had a bi-cameral (two-house) legislature patterned on Parliament’s House of Lords and House of Commons.
In May 1787, Madison hit the ground running. At 5'3" with a slender frame, one colleague described him as "no bigger than a half-bar of soap." Yet, Madison had an outsized impact on the American Revolution and the country's future. While the other 55 attendees (of the 80 invited) were still taking off their coats and saying their hellos, Madison dropped his plan on the table.
The Virginia Plan, so-called because of Madison’s home state, actually applied the Massachusetts model on a national scale. Within the national tier were three branches – the executive (president), legislative (congress) and judicial (courts) – tied together by a system of checks and balances (vetoes, overrides, appointments, judicial review) whereby no one branch had ultimate authority over the other two. Congress made laws, but the president could veto laws, but Congress could override the veto with a bigger majority. The president assigned justices to the Court, but Congress authorized the appointments, and so on. This is good basic knowledge to learn in your history and government class, as today fewer than 33% of Americans can name the three branches, let alone explain how they relate to one another (immigrants score much higher).
Minds like Madison's don't work in a vacuum so much as they recombine and re-adapt existing models. Put another way, he used a different recipe than England or Massachusetts, but drew on the same ingredients. As mentioned, he was looking to strike the right republican balance between the tyranny of one king and the tyranny of a democratic majority. Madison wrote, "Our government ought to secure the permanent interests of the country against innovation [democracy]...[laws] should protect the minority of the opulent against the majority."¹
The Articles of Confederation weren't revised; they were torn to pieces and thrown in the trash straight away. No one mentioned canal building, the other ostensible purpose of the meeting. Some opponents of a national government, the Anti-Federalists, made the fatal mistake of boycotting. That ceded the initiative to the Federalists, so named not because they wanted to shift all the power to the national level, but because they wanted to confederate power by establishing a multi-tiered system of national, state, county, and city governments. Dividing Founders into Federalists and Anti-Federalists is a gross oversimplification since most were somewhere in between, and many Anti-Federalists supported some type of national government -- just one weaker than what emerged. Likewise, most Federalists weren't in favor of an extremely strong, overbearing centralized national government.
The word federal is often confused with meaning national government, because today we speak of the Fed or Feds at the top level. When people say the Feds are after them, they mean the IRS, BLM, BTF or FBI, not the local sheriff. Technically, though, it refers to shared power across the entire apparatus. The 2014 Encyclopaedia Britannica defines federalism as "unit[ing] separate states or other polities within an overarching political system in such as way as to allow each to maintain its own fundamental political integrity." In that way, Barney Fife, as deputy of fictional Mayberry, North Carolina, was just as much a Fed as the Men in Black.
The shared federal system idea was already established under the Articles of Confederation, despite that government's reputation for granting all power to the states. They still had a national tier grafted on top insofar as the states had formed a union and fought as a country. There was a Continental Army, Continental Congress and president of Congress. The Founders wrote the new Constitution to strengthen the upper tier. The Federalists, representatives of the rich establishment in the eyes of their critics, felt the Revolution had gone too far in the democratic, de-centralized direction and wanted more law and order. Noticeably absent in the new Constitution they created are the words liberty, freedom or democracy. The general feeling was that Jefferson might have poured a little too much fuel on the fire with the Declaration. It was time for the Spirit of '87 to check the Spirit of '76.
Their first agreement was to shutter Independence Hall -- the same building in Philadelphia where that same Declaration was signed eleven years earlier -- and agree that no one would talk to the press for the duration of their meeting. However, it was never their intention to ram the new government down Americans’ throats without citizens' feedback. They just wanted to finish crafting the government in private, without too many people in their ears, and then turn it over to special conventions called in each state. Under terms the old Congress authorized, it would become the new law of the land if nine of the thirteen states agreed to it. In this way they didn't completely trash the Articles of Confederation, because they granted the old government the right to approve of the new transition toward a new government. Why not give it to the state legislatures directly instead of special conventions? Because the states had no motive to relinquish any power to a new national government when, under the Articles, they were pretty much in control.
While they kept no official minutes, we know from Madison's journal that the basic parameters of debate never left his original framework.¹ Of course, Madison can't be trusted as an impartial source, but the final result was similar to his Virginia Plan. There was a three-tiered national government (executive, legislative and judicial) tied together by a system of checks and balances that left no one branch in charge of the other two. The remaining months were spent hammering out details like representation, the Electoral College and slavery.
No one mentioned slavery until Benjamin Franklin introduced a Quaker petition calling for its abolition, that he'd signed as well. Southern states demanded that northern states figure out a way to deal with emancipated slaves, such as repatriation to Africa, but they'd prepared no such plans. Georgia and South Carolina threatened to stay out of the U.S. if slavery was abolished, just as they had with the Declaration of Independence. So it was not abolished, and slavery's legality is implicitly acknowledged at several points: the Fugitive Slave Clause obligating Northerners to return runaway slaves (strengthened in 1793 and 1850), the ban on Atlantic slave trading after 1808, and the infamous 3/5th Compromise allowing Southern states to count 60% of their black populations when determining their number of representatives. Contrary to popular perception, the South wanted to count their slaves, not the North. That gave the South more senators, representatives and votes in the Electoral College. The slaves themselves were not counted as 3/5th of a person; they were counted as 0/5th of a person in terms of their own rights and citizenship. Determining representation was, understandably enough, the most contentious issue of the convention.
Small states wanted to continue the one-vote-per-state direct, or equal, method of representation used under the Articles of Confederation. Larger states (or small states that were growing) argued, logically enough, that their larger populations should get more votes. Why, today, should Wyoming have equal power with Texas, when Wyoming has only half the population of Travis County, Texas? Thus, one advantage of the bi-cameral legislature they decided on, with an upper Senate and lower House of Representatives, was that they could mix these two otherwise imperfect systems, with direct representation in the Senate and proportional representation in the House. The idea was known as the Great Compromise, or Connecticut Compromise because its originator Roger Sherman hailed from that state.
The Electoral College also benefited from this mix, with the total number of votes (electors) from each state equaling that states’ combined number of Senators and Representatives. A broad popular vote for the presidency would have been impractical in the 1780s, but has been impossible to implement since because it would require an amendment agreed upon by ¾ of the states. The smaller states would never agree to it because the current formula of figuring electors slightly favors small states. Adding senators to the total, which small states have as many of as big states (2), gives the small states a slight boost they would lose in a straight popular vote. Without the Electoral College, presidential candidates would skip the "fly over states" altogether and focus mainly on urban areas.
Given all these disagreements and compromises and the uncertainty of the future, it was wise of the Founders to include a provision to tweak the Constitution. The amendment system, borrowed from Pennsylvania's state constitution, gave the government the ability to change and adapt to new circumstances without scrapping it and starting over. Two-thirds of either Congress (both houses) or the states can propose an amendment, and ¾ of the states (either legislatures or special conventions) are required to ratify the amendment. Without this feature, the Constitution would no longer be around. The U.S. is not the oldest country, of course, but their written constitution is the oldest among major countries, and amendments are partly why.
Pinckney Shapes the Presidency & Military
One of the reasons we think of James Madison as the main Constitutional architect, is that his journal is our only direct primary source. But we know from piecing together letters written years later by conventioneers, that Madison shortchanged South Carolinian Charles Pinckney in his account. Pinckney was more important than any of our presidents in shaping the executive branch. He argued for using Roman terms like president and senate, for having the executive branch led by an individual rather than committee, for establishing a procedure to get rid of unlawful presidents via impeachment and trial proceedings, for requiring the executive to deliver periodic State-of-the-Union updates to Congress, and for having the executive run the military as commander-in-chief.
Pinckney also pushed through a line in Article 6 that exempted public figures from any religious test -- a radical departure for the time that distinguished the U.S. from European countries. Unlike the Declaration of Independence, the Constitution didn't claim to derive its justification from a higher power. The religious test exemption, along with the First Amendment granting full-blown religious freedom, meant that the Constitution separated church and state, though that term is not in the Constitution. Jefferson used "separation of church and state" informally in describing the First Amendment that he co-wrote with Madison, and later judges applied the term to their interpretation of the First. States, though, retained the right to mix church and state in the country's early history because the Bill of Rights (including the First Amendment), applied initially only to the national government. That changed after 1868, when the Fourteenth Amendment incorporated the Bill of Rights protections at the state level. Even after the Fourteenth Amendment, though, voters are free to consider religion all they want when voting for candidates.
Finally, Pinckney was responsible for a feature that’s easy to overlook, but was critical to the country's power structure: putting the military in the hands of the new national government rather than the states. The militias contributed a lot to the victory over the British, especially in the South, and the contentious issue of states' rights versus national power was naturally impacted by Pinckney's proposal. Some argue that the wording of the Second Amendment (right to bear arms) concerns the question of how much power state militia would retain in this arrangement. Nonetheless, recent cases like D.C. vs. Heller (2008) and McDonald vs. Chicago (2010) have ruled that the Second Amendment does not refer to militia, despite its text: "A well regulated militia, being necessary to the security of a free state, the right of people to keep and bear arms shall not be infringed." We'll discuss below how the Bill of Rights came about during the ratification process.
Ratification & Federalist Papers
Nine of the thirteen states ratified (authorized) the Constitution originally signed in September 1787 by 39 of the remaining 42 framers. Thirteen of the original conventioneers gave up and went home, and 25 of the 80 invitees never showed, some of them because they didn't want to miss out on their state legislative sessions. You can see that the importance we ascribe to the meeting in retrospect wasn't readily apparent at the time. Still, two important and large states, New York and Virginia, were not among the signers, and Federalists resolved to get those two on board, even though they had the requisite nine already. In New York, this campaign took the form of a series of anonymous newspaper editorials, customary at the time, written by Madison, Alexander Hamilton and John Jay.
These editorials were compiled and published collectively as the Federalist Papers in 1961. Although historians have overestimated their role at the time in the ratification process, they are the clearest exposition of American Constitutional theory and required reading in upper-level government courses. Responding to criticism that such a large diverse area could never get along well enough to be ruled under a single republic, Madison turned the argument on its head. He argued in Federalist #10 and #51 that factions would cancel each other out, preventing any one faction from prevailing over the rest (lower right).
The idea has important ramifications today regarding political lobbies. We often complain about the increasing number of lobbyists in Washington, D.C. that influence legislation. Yet, if lobbies there must be -- and it's impossible to keep money out of politics -- than one could make a Madisonian argument that "the more the better." Madison also contrasted republicanism (or representative democracy) from pure democracy in the Federalist Papers, pointing out that the system is not based on pure majority rule, but rather a system where minorities are protected from majority rule. Madison wasn’t speaking of racial minorities in this context, but later the Constitution provided such protection based on that very principle.
Bill of Rights
Ratification in the state conventions was controversial because they either had to "take this or nothing" in the words of Virginian George Mason. In other words, it would've been too complicated to allow arguments over revisions at that point, so they had to either approve or reject it as it was. Many states, including Massachusetts, New York and Virginia, were skeptical that the new Constitution didn't guarantee individual rights. Outright brawls broke out in the Massachusetts General Court over their omission. Eventually, all the states grudgingly ratified but hoped such individual protections would be added later.¹
James Madison wanted to implement such "additional guards of liberty" in the text of the Constitution, but Congress decided instead to add them as amendments. They whittled down Madison's original seventeen ideas to twelve, of which ten actually passed as amendments in 1791. At the time, people were most concerned that national Congress not have the power to tax unless states failed to pay what they owed. Such an amendment wasn't included (in 1913 the 16th Amendment allowed for a national income tax), and some critics feared those that were didn't amount to more than a "pinch of snuff." Later, this "snuff" became known to us as the Bill of Rights, though it took awhile for that term to catch on. For many Americans, the Bill of Rights are the most important part of the Constitution, and are what people mean when they talk about their "Constitutional rights." Historian Ray Raphael called this an example of the "tail wagging the dog" because, at the time, the big story was the strengthening of the national government.¹ The Pennsylvania Gazette wrote: "The year 1776 is celebrated for a revolution in favor of Liberty. The year 1787, it is expected, will be celebrated with equal joy, for a revolution in favor of Government" (9/5/1787). The amendments later known as the Bill of Rights weren't added until a few years after the Convention and, contrary to popular notion, Anti-Federalists didn't demand them as a price for ratification (North Carolina signed twelfth, and Rhode Island held out until 1790).
At first, Madison opposed such a list, arguing that listing rights might imply a lack of protection from the government for things that weren't listed, and that wasn't how the Constitution was intended to be read. Virginia, his home state, had completely separated church and state -- the first government in Western civilization to do so -- and their 1786 Statute for Religious Freedom, co-written by Jefferson and Madison, laid the foundation for the First Amendment right to religious freedom at the national level. Virginia Baptists wanted a strong statement of religious freedom written into the Constitution before they'd support Virginia agreeing to it. There, George Mason led opposition to the Constitution because of its lack of explicit protection for citizens. Mason's Virginia Declaration of Rights (1776) was influential on both the opening of Jefferson's Declaration of Independence and the Constitution's Bill of Rights. Madison figured that if such a list was going to be added to the national Constitution, it was best that he consult Jefferson, though he had to correspond across the Atlantic since Jefferson was serving as Minister to France.
Their religious stance was groundbreaking for its time, and carried over into foreign policy. When the young U.S. negotiated a temporary settlement to its conflict with Barbary Pirates off the coast of North Africa in 1796, the Senate wrote in Article II of the Tripoli Treaty: "As the government of the United States is not in any sense founded on the Christian religion; as it has in itself no character of enmity against the laws, religion or tranquility, of Mussulman [Muslims]; and as the said States never entered into any war or act of hostility against the Mahometan [Muslim] nation, it is declared by the parties that no pretext arising from religious opinions shall ever produce an interruption of the harmony existing between the two countries."
The Bill of Rights provide individual citizens protection from the national government’s power to abridge their freedom of religion, free speech, right to bear arms, etc., guaranteeing their right to petition the government and fair and speedy trials, with unwarranted search and seizure, or cruel and unusual punishment. By protecting citizens from these freedoms, what the Bill of Rights is really doing is protecting, by extension, minorities from the majority of voters. A majority of 51% of voters couldn't outlaw free speech, for instance. This is an important but easy to overlook distinction that underscores the difference between a pure democracy and a representative democracy, or republic, like the U.S.
One need look no further than recent Egyptian history to see what happens when a democratic constitution fails to protect minority rights. Having won the presidency (Mohamed Morsi) and control of parliament, the Muslim Brotherhood wrote a constitution in accordance with Sharia Law that discriminated against Christians, liberals and women. Feeling betrayed by their fellow revolutionaries, non-Muslims rose up and backed a military coup to overthrow the democracy when President Morsi refused to reform or agree to fresh elections. Iraq is an even more prominent example. When the U.S. stabilized the country during the 2007 Surge, General David Petraeus allied the new Shia leadership with moderate Sunnis, whom he bought off. After the U.S. left, Shia president Nouri al-Maliki severed the Sunni alliance, sending Sunnis into the arms of the militants who formed ISIS. Maliki understood democracy, but not the subtler form of republicanism that protects minorities from the majority. A third example is the United States itself, which formally and legally discriminated against its minority populations for most of its history until it beefed up the Bill of Rights with a stronger interpretation of the Fourteenth Amendment in the mid-1960s.
In style, if not in content, the American Bill of Rights are based loosely on the English version, written exactly a century earlier, in 1689. The English Bill of Rights were written up in the context of Parliament gaining power at the expense of the Crown. They diminish regal authority by forbidding the king from making laws and levying taxes without Parliament's consent. That portion of the English Bill of Rights is more similar to the main body of the U.S. Constitution, that separates congressional and executive power. More similar to the American Bill of Rights, the English version guarantees freedom of speech and debate within Parliament, outlaws excessive bails and cruel and unusual punishment for criminal suspects, and grants the right to bear arms for Protestants, but not Catholics (until the 20th century, the U.S. version was interpreted as allowing guns for Whites, but not Blacks).
In the early U.S., restrictions like the First Amendment applied only to the national, not state, governments at first, and several states established religious denominations and excluded Jews, Catholics, Deists and atheists from voting or holding public office. However, only the original thirteen states could get away with that. New western states had to write their constitutions in accordance with the Bill of Rights and, after passage of the Fourteenth Amendment in 1868, all states had to incorporate them.
The Bill of Rights are the most famous portions of the Constitution because they deal explicitly with the rights of citizens on whose behalf the document was theoretically written in the first place. The Constitution opens famously with We the People.... As mentioned, when people declare their rights are being violated, they are more often than not referring to the Bill of Rights rather than the main body of the Constitution, or a state law. At least one representative from every state eventually agreed to the Constitution.
With the new government in place, it would take generations of leaders to hammer out the kinks and argue over the Constitution's interpretation. That ongoing process continues as a healthy, if sometimes aggravating, feature of democracy. What politicians discovered early on, during the new government’s first decade, was that even the framers who signed the document didn’t agree as to what exactly they were signing. If they'd held themselves to that standard, they never would've gotten out of Philadelphia in four months. But they also probably intended some elasticity, or room to adapt.
There was no easily agreed-upon original intent even then, let alone today. Just how powerful would this new central government be in relation to the states in a shared system? As we'll see in the next chapter, that question was vexing enough that the young nation teetered on the edge of civil war in the 1790s, coming closer to breaking apart than at anytime in its history prior to the 1860s.