Lecture #1: Some American History & The Constitutional Convention
By Timothy B. Lewis Before considering specific aspects of the Constitution, perhaps we should establish its underlying philosophical base by reviewing a little American history and some basic principles. That is what the first few lectures will do. Sources of Colonial Irritations with the Crown Before the American Revolution, the colonists felt they had too little say in the laws that governed them and that the British Crown had too much control over them, for the colonists had nor formal representation in Parliament. We felt that the crown was trying to excessively micromanage what was going on in the colonies. For example, the Proclamation of Oct. 7, 1763 prohibited the colonists from settling west of the Appalachian mountains.1 Because British currency was in short supply in the American colonies, the colonists often used coins of the Spanish Dollar to facilitate commerce. When the combination of those currencies was inadequate to transact business in the colonies, the colonists created their own paper money called “colonial scrip” which was denominated in pounds, shillings, and pence. Under the Currency Acts the colonists were forbidden to print their own currency at all. All debts, public and private could only be paid with “proper” English money. That caused as immediate shortage of currency in the colonies which caused an economic depression.2 According to Benjamin Franklin’s autobiography: “In one year, the [economic] conditions were so reversed that the era of prosperity ended, and a depression set in, to the extent that the streets of the Colonies were filled with unemployed….The colonies would gladly have borne the little tax on tea and other matters had it not been that England took away from the colonies their money, which created unemployment and dissatisfaction. The inability of the colonists to get power to issue their own money permanently out of the hands of George III and the international bankers was the prime reason for the Revolutionary War.”3 Under British mercantilism, we could only send raw materials (as opposed to finished goods manufactured here) to England. For example, cotton could not be manufactured into finished goods here and sold to England. Rather, the raw cotton first had to be shipped to England, manufactured into finished goods over there, then shipped back to the colonies to be sold here. Moreover, we could only sell things to England and not to other nations.4 We were taxed through various means like the Sugar Act of 1764 which taxed molasses imported from other nations into the colonies. In response, the colonists cried “Taxation without
World Book Encyclopedia (1986), Vol. 16, p.255. The Silver Bomb--The End of Paper Wealth is Upon Us (2012), Michael MacDonald & Christopher Whitestone, pp.41-42, 44-45. 3 Quoted in The Silver Bomb--The End of Paper Wealth is Upon Us (2012), Michael MacDonald & Christopher Whitestone, p.45. 4 https://en.wikipedia.org/wiki/Mercantilism; The Silver Bomb--The End of Paper Wealth is Upon Us (2012), Michael MacDonald & Christopher Whitestone, p.42.
representation is tyranny.”5 The Quartering Act of 1765 which required the colonists to provide quarters, fuel, candles, cider or beer, and transportation for British troops stationed here.6 The Stamp Act of 1765 required the colonists to buy tax stamps and place them on newspapers, playing cards, diplomas, and various legal documents. Due to the angry protests is spawned in the colonies, it was repealed the next year.7 The Townshend Acts imposed duties or taxes on the importation into the colonies of tea, paper, lead, and paint. The colonists protested by refusing to buy British goods. The Acts were repealed in 1770 except with respect to tea. That prompted the most famous protest taught to us in our American history classes—the Boston Tea Party.8 After the Boston Tea Party, Parliament passed a series of bills known in the colonies as the "Intolerable Acts." They closed the Boston harbor, changed the government of the Massachusetts Bay Colony, changed the judicial system in that colony and allowed the quartering of troops in private homes without paying compensation.9 When I did some research several years ago in the Library of Congress, I discovered a very interesting series of books called the American Archives. Sometime in the 1830’s Congress decided to try to preserve the documentary history of the country while it still existed. It commissioned the research and printing of a series of books by that title which contained a very wide variety of writings that shed light upon the creation of our country. I perused the part covering the debate in Parliament over the passage of those Acts and found some very interesting quotes. Lord North was the leading proponent of these Acts in Parliament on behalf of the King. In arguing his case for a stronger exercise of authority over the colonies he said: "If we exert ourselves now with firmness and intrepidity, it is the more likely…[the colonists] will submit to our authority."10 Mr. Montague agreed and maintained that the disorders in America resulted from England being too lenient and that the situation called for the exercise of power.11 Mr. Jenkins observed that if England did not take a strong position and make an example out of the Bostonians, they will "become a precedent to the rest of the Colonies."12 As part of a minority in Parliament opposed to those bills, Mr. Byng predicted that the bills
World Book Encyclopedia (1986), Vol. 16, p.255. World Book Encyclopedia (1986), Vol. 16, p.255. 7 World Book Encyclopedia (1986), Vol. 16, p.255. 8 World Book Encyclopedia (1986), Vol. 16, p.255. 9 American Constitutional History, Erik McKinley Erikson, published by W.W. Norton & Co, 1933, pp. 105-06.
American Archives, 4th series, Vol. 1, pp. 42-45. Id. Id.
would only produce more of the very conduct by the Americans that Lord North and his friends detested and wished to control.13 Captain Phipps added: "Let America alone, and it will return of itself to obedience...."14 Lord G. Cavendish said: "...that country which is kept by power, is in danger of being lost every day."15 And Edmund Burke observed: "The spirit of English legislation...must execute itself, or no power under Heaven will be able to effect it."16 In other words, the law must be moral enough and respectable enough that people, in general, can see on their own, the wisdom of self-compliance and do so voluntarily without the necessity of external force. Ultimately, the latter group proved to be the better prophets. The “intolerable acts” tended to unite the colonies against the Crown – public sentiment in the colonies turned revolutionary.17 Life Under the Articles of Confederation When they finally decided to revolt from the mother country, the colonists organized under a very weak type of central government called the Articles of Confederation. Under this arrangement, the federal government had little power to force the states to do anything. For example, near the end of the war, when the federal government would order certain amounts of manpower and financing from the various states, the states started to refuse those orders. The states claimed they had already committed more than their fair share of money and blood to the war effort and, under the Articles of Confederation, there wasn’t much the federal government could do about it.18 So we went from a situation of very little colonial rights and almost ultimate central authority before the Revolution to almost ultimate states’ rights during and after the Revolution. After winning the Revolutionary war, however, the thirteen states started exercising their state sovereignty in somewhat extreme ways. They were very uncooperative with one another and started acting almost like independent countries. They had their own money systems, many of which printed worthless paper money at the behest of the debtor class against the interests of their creditors. Shays Rebellion, which had to be forcibly subdued, was an attempt by insurrectionists to force the same thing in Massachusetts.19 Border fights erupted over contested territory. For example, New York, New Hampshire and Massachusetts all claimed the territory which now comprises the state of Vermont. George
Id. p.44. Id. p. 40. Id. Id. p. 34. American Constitutional History, Erik McKinley Erikson, published by W.W. Norton & Co, 1933, pp. 105-07. Id. pp. 157, 161, & 169. Id. p. 171.
Washington had to personally intervene to avert war concerning the matter.20 Maryland claimed ownership to the far bank of the Potomac river and charged all Virginian traffic a fee to use the river. In response, Virginia charged all Maryland traffic a fee to use the portion of the Chesapeake Bay which it controlled further down the river.21 Connecticut was the major supplier of firewood for New York and New Jersey was New York's major supplier of food. When New York levied a tax on firewood and food, Connecticut cut off all trade with New York. In similar fashion, New Jersey attempted to get even by imposing a property tax on the lighthouse at Sandy Hook which was on the New Jersey side of the New York Harbor.22 The various states imposed tariffs whenever commodities would pass through them to some other state.23 These were attempts by the various states to push the burden of taxation onto the shoulders of out-of-staters who couldn’t vote within the various states in question. All of this conduct cumulatively created artificial barriers to free trade among the states. The federal government could not effectively make any treaties with foreign countries since the states had the power to circumvent them at every turn. Foreign powers saw no point in trying to negotiate with an entity which had no effective power to bind its constituent parts.24 People could see that they would have to change things or we would just break up into thirteen different countries and in effect, construct a miniature Europe over here with all of its long tradition of uncooperation, political infighting, and wars.25 Consequently, the Constitutional Convention was convened in Philadelphia to consider how to strengthen the federal government so that we could seriously call ourselves one unified country without laughing in the next breath. Principal Fear in Changing Their Form of Government: They Didn’t Want To Make Too Strong Of A Central Government As the people considered the prospect of changing the federal government, they knew they had to give it more central power but their principal fear was going too far and creating too strong of a central government.26 People generally prized the notion of individual state sovereignty and didn't want to give up too much of it. They wanted to find a happy medium between the two extremes which they had recently experienced – i.e. too strong of a central government in the
Id. pp. 178-79. Id. p.179. Id. p. 178. Id. p. 178. Id. pp. 172-77. Id. pp.215 & 231. Id. p.188.
British Crown and too weak of a central government under the Articles of Confederation. The Federal Government Was Viewed As Only Being A Government Of Limited Delegated Powers As the constitutional convention proceeded and the new constitution was debated, it became clear that the new federal government was viewed by most as a government of specifically "delegated powers." Whatever power it had, came from below by delegation and common consent and it held no powers by itself absent that bottom-up delegation. To illustrate this point, consider the following examples of sentiment. About three months into the constitutional debate in Philadelphia, George Mason rose to his feet and proposed that the new constitution contain certain delineations of rights like freedom of speech to protect the people from the federal government. The basic upshot of the response was effectively this: "Don't worry Mr. Mason, we didn't delegate any power to the federal government to regulate speech -- so it would be superfluous to even talk about it in the text of the constitution." Hence, Mason's proposal failed.27 When the Constitution was sent to the states for adoption without a Bill of Rights attached, many people agreed with Mason and criticized this as a major deficiency.28 In response, Alexander Hamilton in Federalist #84 echoed the sentiments of Mason’s opponents by saying: “For why declare that things shall not be done which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed?”29 Hamilton wanted to make sure that no faulty implications were drawn regarding the notion of the federal government having only limited delegated powers. He worried about the implications of total silence regarding a particular governmental power. On the one hand, he argued in several of the Federalist Papers that unless a particular power were specifically delegated in a positive way to the federal government, it did not reside with the federal government.30 But on the other hand, later some people with an expansionist federal mind-set could argue that unless that particular power were specifically denied to the federal government, it held that power by implication. Hamilton worried that attaching a Bill of Rights with specific prohibitions would bolster the latter erroneous argument made by those desirous of expanding federal authority. Nevertheless, many were not persuaded by his argument and did not want to take any chances that this new federal government would trample on their rights. Consequently, several states voted to adopt the new constitution but only after getting assurances that after adoption, the
A History of the American Constitution, Daniel A. Farber & Suzanna Sherry, West Publishing, pp.221-22. American Constitutional History, Erik McKinley Erikson, published by W.W. Norton & Co, 1933, pp.229 & 232. Federalist Papers, No. 84, paragraph 11 (reproduced at http://memory.loc.gov/const/fed/fedpapers.html.).
See Federalist Papers, No. 32, 33, 34 and 78 (reproduced at http://memory.loc.gov/const/fed/fedpapers.html.); and Elliot’s Debates 2:362)
Federalists would support amending the Constitution with a Bill of Rights.31 Hence, the first ten amendments were added to it four years later. It is interesting to note that Alexander Hamilton is always pointed to as one who believed in very expansive and open-ended federal powers. I have not studied him very closely, but I defy you to support that proposition from what he wrote in the Federalist Papers which was the intellectual sales pitch used to persuade people to adopt the Constitution. I presume that he was an honest man and take him at his word in those essays, most of which are his. The Final Draft of the Constitution was Completed After about 4 months of debate and drafting, the final version of the Constitution was complete. It was then transmitted to the national congress and the states for adoption. Under the signature of George Washington, a letter of transmittal accompanied the document. It said in part: "Sir, We have now the honor to submit to the consideration of the United States in Congress assembled, that Constitution which has appeared to us the most advisable....Individuals entering into society must give up a share of liberty to preserve the rest. The magnitude of the sacrifice must depend as well on situation and circumstance, as on the object to be obtained. It is at all times difficult to draw with precision the line between those rights which must be surrendered, and those which may be reserved; and on the present occasion this difficulty was increased by a difference among the several States as to their situation, extent, habits, and particular interest. "In all our deliberations on this subject we kept steadily in our view, that which appears to us the greatest interest of every true American, the consolidation of our union, in which is involved our prosperity, felicity, safety, perhaps our national existence. This important consideration, seriously and deeply impressed on our minds, led each State in the Convention to be less rigid on points of inferior magnitude, than might have been otherwise expected; and thus the Constitution, which we now present, is the result of a spirit of amity, and of that mutual deference and concession which the peculiarity of our political situation rendered indispensable."32 (emphasis added) The Issue of Slavery During the convention, the divisive issue of slavery was debated.33 Many wanted to abolish the practice, but the southern states refused to go along with anything that would do that. Since that issue threatened the goal of national unity, which Washington observed to be their primary goal, it would have to wait for another day before it could finally be resolved. In order to secure the necessary southern votes, the Constitution specifically prohibited any amendment until 1808 of
American Constitutional History, Erik McKinley Erikson, published by W.W. Norton & Co, 1933, p.232.
(Farrand, Max, ed. The Records of the Federal Convention of 1787, Rev. ed. 4 vols. New Haven and London: Yale University Press, 1937, reproduced at “http://press-pubs.uchicago.edu/founders/documents/v1ch6s11.html”)
American Constitutional History, Erik McKinley Erikson, published by W.W. Norton & Co, 1933, p.203.
its sections which effectively protected the institution of slavery.34 In effect, the drafters promised the south twenty years of a “hands-off” policy concerning slavery. The implication of this was that after twenty years, the issue would finally be addressed at the national level. It wasn’t until the Civil War that the issue would finally be resolved, but everyone was on notice from the outset, that the status quo regarding that issue was only temporary. Harry V. Jaffa cautions us not to think of slavery as a “constitutional principle” but rather, a “constitutional compromise” dictated by the demands of prudence.35 It is easy for us to morally criticize our history of slavery, but just try to imagine what would have happened had those opposed to slavery imprudently taken an unyielding and categorically absolute moral stance on that issue and demanded that the Constitution, then and there, abolish the practice. We might very well have split into two different countries – a United States of Northern America and a United States of Southern America, both of which being north and east of modern day Florida. Being so close in time to the bloody American Revolutionary War, if the southern states were to have broken off at that point, it is doubtful the northern states would have had any will to try to forcefully do anything about it. After several decades passed in such a separated condition, it is doubtful the northern nation would have ever attacked the southern nation for the purpose of forcing them to free their slaves. And who knows, like other countries around the world today, like Mali, perhaps that southern nation would still practice slavery even today. Maybe I should just stop there and not add the following 3 paragraphs? Moreover, such a separation probably would have ignited a very bloody and competitive quest for empire in this hemisphere with both countries aggressively claiming western lands as fast as they could before the other did. In the process, skirmishes would likely have flared up between competing sides which would have spawned growing animosities between them—perhaps leading to open war. After all, this same thing happened even after we adopted the Constitution and formed up as a single nation. As territories vied for statehood, the south tried to get them to come in as fellow slave-states while the north tried to get them to come in as fellow free-states. If the south could manage to thwart any attempt by the north to multiply the number of free-states to the point where they could get ¾ of the states to vote for a Constitutional Amendment to terminate slavery, the south could maintain the institution of slavery indefinitely. Part of the reason the Mormons were treated so poorly in Missouri was because Missouri had already entered the union as a slave state and the people didn’t like the fact that the Mormons were anti-slavery and their numbers were growing so fast. Conceivably, with enough antislavery people relocating to Missouri, its state constitution might someday be amended to prohibit slavery. That threat could be diminished by evicting the Mormons from the state. We will end tonight with the issue of slavery which naturally leads into my next lecture on
Article V of the Constitution.
Harry V. Jaffa, Original Intent and the Framers of the Constitution–A Disputed Question, Regnery Publishing, Washington D.C., 1994, pp.21, 23, 34, & 43.
liberty entitled: “The Origin and Meaning of Liberty.”