Part 4 (1/2)

The third compromise, in early September, was perhaps the most important of all in the long run, dealing as it did with the election of the president. Although federalists like Hamilton lost the general battle about the nature of the state, which remained decentralized rather than concentrated, they won a significant victory over the presidency. Hamilton won this by tactical skill, compromising on the election procedure-if no candidate got a majority of the popular vote, the House elected one from among the top three, voting by states, not as individuals. Each state was further given the right to decide how to choose its electoral college. This appeared to be a gesture to the states, balancing the fact that the president was directly elected by the people. But it left open the possibility of popular partic.i.p.ation. Thus in practice the president was elected independently of the legislature. Moreover he was given a veto (offset by a two-thirds overriding rule) over Congressional legislation, and very wide executive powers (offset to a limited degree by the requirement that the Senate should 'advise and consent').

Almost by accident, then, America got a very strong presidency-or, rather, an office which any particular president could make strong if he chose. He was much stronger than most kings of the day, rivaled or exceeded only by the 'Great Autocrat,' the Tsar of Russia (and in practice stronger than most tsars). He was, and is, the only official elected by the nation as a whole and this fact gave him the moral legitimacy to exercise the huge powers buried in the const.i.tutional thickets. These powers were not explored until Andrew Jackson's time, half a century on, when they astonished and frightened many people; and it is perhaps fortunate that the self-restraint and common sense of George Was.h.i.+ngton prevented any display of them in the I790s, when they would certainly have led to protest and const.i.tutional amendment. As it was, the new republic got a combined head of state and head of government entrusted with formidable potential authority.

Although the Convention worked with some speed, which was necessary, and desirable for its own sake-too long debates on const.i.tutions lead to niggling and confusion of issues-it worked deliberatively. The making of the United States Const.i.tution ought to be a model to all states seeking to set up a federal system, or changing their form of government, or beginning nationhood from nothing. Alas, in the 200 and more years since the US Const.i.tution was drawn up, the text itself has been studied (often superficially) but the all-important manner in which the thing was done has been neglected. The French Revolutionaries in the next decade paid little attention to how the Americans set about const.i.tution-making-what had this semi-barbarous people to teach Old Europe? was the att.i.tude-and thirty years later the Latin Americans were in too much of a hurry to set up their new states to learn from the history of their own hemisphere. So it has gone on. The federal const.i.tutions of the Soviet Union (1921) and of Yugoslavia (1919) were enacted virtually without reference to the American experience, and both eventually provided disastrous and b.l.o.o.d.y failures. It was the same with the Central African Federation, the Federation of Malaysia, and the West Indies Federation, all of which had to be abandoned. The federal structure of the European Union is likewise being set up with no attempt to scrutinize and digest the highly successful American precedent, and attempts to persuade the European const.i.tution-makers to look at the events of the 1780s are contemptuously dismissed.

Just as important as the process for drawing up the Const.i.tution was the process of ratifying it. In some ways it was more important because it went further to introduce and habituate the country to the democratic principle. Article VII of the Const.i.tution provided for the way it was to be adopted, and resolutions pa.s.sed by the Convention on September 17, 1787 set out a four-stage process of ratification. The first was the submission of the doc.u.ment to the Congress of the old Confederation. This was done on September 25, and, after three days of pa.s.sionate debate, federalists (who supported ratification) and anti-federalists (who wanted it rejected) agreed to send the Const.i.tution to the individual states, the second stage, without endorsing or condemning it. The third stage was the election of delegates in each state to consider the Const.i.tution, and the fourth was ratification by these conventions of at least nine of the Thirteen States. When the ninth state signified its acceptance, the Const.i.tution then became the basic law of the Union, irrespective of what other states did.

This introduction of the rule of majority, as opposed to unanimity, itself signified the determination of the federalists to create a forceful and robust government. Majority rule made fast action possible. It reflected the desire that the ratification process proceed briskly, and the hope that quick ratification by key states early in the day would stampede the rest into acquiescence. It was a high-risk strategy, obviously. If any of the four biggest states, Virginia, Ma.s.sachusetts, New York, and Pennsylvania, let alone all of them, rejected the Const.i.tution, ratification by all the rest would be meaningless. But the federalists thought they could be pretty sure of the Big Four. Again, the Const.i.tution took an even bigger risk in insisting ratification had to be by popular, specially elected conventions rather than by state legislatures. This was to introduce the people-democracy indeed-with a vengeance. But it was felt that approval by state legislators was not enough. Here was a fundamental law, affecting everyone in the nation and their children and grandchildren and generations to come. The people ought to partic.i.p.ate, as a nation, in deciding whether to endorse it, and the ratification process itself would encourage them to look beyond the borders of their own states and consider the national interest as well as their own. This was a wise decision, again with momentous consequences, because once the people had thus been invited onto the political stage, and asked their opinion, they could never be pushed into the wings again.

Ratification by convention also had the effect of inviting a grand public debate on the issue, and in a way this was the most significant aspect of the whole process. If Jefferson, Madison, and Adams were right in believing that education, virtue, and good government went together, then there was a positive merit in getting not just state legislatures but the people themselves to debate the Const.i.tution. The wider the discussions, the more partic.i.p.ants, the better-for public political debate was a form of education in itself, and a vital one. If, in the 1760s and early 1770s, the Americans, or their representatives, had been allowed to debate with the British, or their representatives, on the proper relations.h.i.+p between the two peoples, the Revolution might have been avoided. Words are an alternative to weapons, and a better one. But a debate was refused, and the issue was put to the arbitrament of force. The Americans had learned this lesson (as indeed had the British by now) and were determined to give words their full play. In the next decade the French were to ignore the lesson, at the cost of countless lives and ideological bitterness which reverberates to this day.

So that ratification process was a war of words. And what words! It was the grandest public debate in history up to that point. It took place in the public square, at town meetings, in the streets of little towns and big cities, in the remote countryside of the Appalachian hills and the backwoods and backwaters. Above all it took place in print. America got its first daily newspaper in 1783 with the appearance of the Philadelphia Evening Post, and dailies (often ephemeral) and weeklies were now proliferating. Printing and paper, being completely untaxed, were cheap. It cost little to produce a pamphlet and the stages carried packets of it up and down the coast. Americans were already developing the device (eventually to be called the syndicated column) of getting articles by able and prominent writers, usually employing pseudonyms like 'Cato ' 'Cicero ' 'Brutus ' 'Publius ' 'A Farmer,' 'A Citizen of New York,' and 'Landholder,' circulated to all newspaper editors, to use as they pleased. So literally thousands of printed comments on the issues were circulated, and read individually or out loud to groups of electors, and then discussed and replied to. It was the biggest exercise in political education ever conducted. An important issue was felt to be at stake, which went beyond the bounds of the Const.i.tution as such. As Hamilton, writing as 'Publius,' put it, the process was to determine 'whether societies of men are really capable or not, of establis.h.i.+ng good government by reflection and choice, or whether they are forever destined to depend, for their political const.i.tutions, on accident and force.'

The federalists were led by Alexander Hamilton, the most active of all, James Madison, who came second, John Jay, John Marshall, James Wilson, John d.i.c.kinson, and Roger Sherman. They had the initial advantage that George Was.h.i.+ngton was known to favor ratification, and his name carried weight everywhere. Franklin was also a declared supporter, and he counted for a lot in Philadelphia, the biggest city. Hamilton, Madison, and Jay produced jointly the Federalist, a series of eighty-five newspaper essays, much reproduced and printed in book form in 1788. Hamilton was the princ.i.p.al author and collectively they represent the first major work of political theory ever produced in America, discussing with great clarity and force such fundamental questions of government as the distribution of authority between the center and the periphery, between government and people, and the degree to which the const.i.tuent elements of government, executive, legislature, and judiciary, ought to be separate. It is the one product of the great debate which is still widely read. How widely it was read, and understood, at the time is debatable. It certainly served as a handbook for speakers on the federalist side before and during the ratification conventions. In that sense it was very important.

The most popular publication on the federalist side was John Jay's Address to the People of the State o f New York, which was reprinted many times, and another bestseller, as a pamphlet, was the major speech made by James Wilson on November 24, 1787 to the Pennsylvania convention. It was Wilson who put the stress on election and representation as the core of the const.i.tution. That, he argued, was what distinguished this new form from the ancient orders of Athens and Rome and the curious mixture of voting and inherited right which made up the British Const.i.tution. 'The world,' he wrote, 'has left to America the glory and happiness of forming a government where representation shall at once supply the basis and the cement of the superstructure. For representation, Sir, is the true chain between the people and those to whom they entrust the administration of the government.' After Madison, Wilson's was the most important hand in shaping the Const.i.tution, and after Hamilton's his was the most important voice in getting it accepted.

The anti-federalists, such as Patrick Henry, Richard Henry Lee, George Mason, John Hanc.o.c.k, James Monroe, Elbridge Gerry, George Clinton, Willie Jones, Melancton Smith, and Sam Adams, were formidable individually but lacked the cohesive force of the federalists. Their objections varied and they appeared unable to agree on an alternative to what they rejected. The Letters of Brutus, probably written by Robert Yates, Otis Warren's Observations on the New Const.i.tution, the anonymous Letters from the Federal Farmer to the Republican and Luther Martin's General Observation contradict each other and leave a negative impression. One pamphleteer, signing himself 'A Republican Federalist,' equated the proposed Congress with the British: 'The revolution which separated the United States from Great Britain was not more important to the liberties of America, than that which will result from the adoption of a new system. The former freed us from a foreign subjugation, and there is too much reason to apprehend that the latter will reduce us to a federal domination.' This fear of Big Government was allied to a widespread conviction, which the anti-federalists articulated, that the new federal congress and government would quickly fall into the hands of special interests and groups who would oppress the people. Hamilton's notion of lawyers as a disinterested cla.s.s formed by nature to run the center did not impress. As Amos Singeltary of Ma.s.sachusetts put it, 'These lawyers, and men of learning, and monied men, that talk so finely, and gloss over matters so smoothly, to make us poor illiterate people swallow down the pills, expect to get into Congress themselves: they expect to be the managers of this Const.i.tution, and get all the power and the money into their own hands, and then they will swallow up all us little folks, like the great Leviathan.'

But the alternative some anti-federalists proposed, of Small Government on the lines of the Swiss cantons, did not go down well. After all, America had experienced small government already, during the war and since, and most people knew it had not worked well-would not have worked at all without Was.h.i.+ngton. The problem, during the war and since, had not been too much government but too little. That was a very general view, in all states; and fear of Big Government was further mitigated by a general a.s.sumption that, once the new Const.i.tution was in force, Was.h.i.+ngton would again be summoned to duty and would prevent its power from being abused just as once he had made good its lack of powers. Where the anti-federalists struck home was in stressing that the new Const.i.tution said little or nothing about rights, especially of the individual. But the federalists admitted this defect, and they agreed that, once the Const.i.tution was ratified, the first thing was to draw up and pa.s.s a Bill of Rights which (as a const.i.tutional amendment) would require the consent of three-quarters of the states and would thus be sure to satisfy the vast majority.

With this qualification in mind, the ratification procedure began. The first five ratifications took place December 1787-January 1788: Delaware (unanimous), Pennsylvania (46-23), New Jersey and Georgia (unanimous), and Connecticut (128-40). In Ma.s.sachusetts, the two leading anti-federalists, Sam Adams and John Hanc.o.c.k, negotiated a rider to ratification under which the state agreed to accept the Const.i.tution on condition it was amended with a Bill of Rights. This went through in February 1788 (187-168). All the other states adopted this device, and insured the acceptance of the Const.i.tution, though making it imperative that the rights provisions be adopted quickly. Maryland ratified in April (63-11), South Carolina in May (149-73), New Hamps.h.i.+re (57-47) and Virginia (89-79) in June, and New York in July (30-27). That made eleven states and insured the Const.i.tution's adoption. North Carolina's ratification convention adjourned in August 1788 without voting, and Rhode Island refused to call a convention at all. But the virtual certainty that amendments would be introduced guaranteeing rights persuaded both states to change their minds: North Carolina ratified November 1789 (195-77) and Rhode Island May 1790 (34-32).

Thus, in the end, the ratification by states was unanimous, and the Const.i.tution was law. Benjamin Franklin, who had attended every session of the Const.i.tutional Convention and who had actually fathered the idea that the House should represent the people and the Senate the states, hailed the adoption of the Const.i.tution with a memorable remark: 'Our Const.i.tution is an actual operation,' he wrote to a friend in Europe, 'and everything appears to promise that it will last: but in this world nothing can be said to be certain but death and taxes.'

Congress now had to enact rights. Some states had already done so, so there were precedents. The federalists who wrote the Const.i.tution were chary on the subject. Individual rights were presumed to exist in nature-that was the basis on which the Declaration of Independence had been drawn up-and a formal, legal statement of them might imply the extension of government into spheres in which it did not and should not operate. 'The truth is,' Hamilton wrote in the Federalist, 'the Const.i.tution is itself, in every rational sense, and to every useful purpose, a bill of rights.' That was a shrewd point and it may be that enacting individual rights formally has proved, especially in the 20th century, a greater source of discord than of rea.s.surance. But Hamilton and the others went along with the general feeling, very strong in some states and especially in the backwoods and country districts, that rights must be enumerated and spelt out.

Hence Madison, who had originally opposed what he called 'parchment barriers' against the tyranny of interests or of the majority, relying instead upon structural arrangements such as the separation of powers and checks and balances, now set about the difficult task of examining all the amendments insisting on rights put forward at the ratifying conventions, and various bills of rights enshrined in state const.i.tutions, and coming up with a synthesis. He also had a complete model in the shape of the Virginia Declaration of Rights (1776), written by the anti-federalist George Mason. Early in the first session of the new Congress in 1789, Madison produced drafts of ten amendments. The first amendment, the most important, prohibits legislative action in certain areas, giving citizens freedom of religion, a.s.sembly, speech, and press, and the right to pet.i.tion. The next seven secure the rights of property, and guarantee the rights of defendants accused of crimes. The ninth protects rights not specifically enumerated. The tenth, reinforcing this, insists that 'the powers not delegated to the United States by the Const.i.tution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.' The ratification proceeded smoothly and on December 15, 1791, when Virginia ratified, the Bill of Rights became part of the Const.i.tution.

Two more matters remained to be determined. Should representatives be paid? They never had been in England, except sometimes by localities. The states varied. Franklin, who was rich, argued before the convention of 1787 that no salaries be paid-in his self-made-man way he thought the right to represent should be earned and paid for by the ambitious individual. But he was turned down. Even the Pennsylvania a.s.sembly paid 'compensation' for loss of earnings. There was no issue on which the Founding Fathers were more divided. Many 'gentlemen,' such as lawyers, found they could not hold office and make a living, so they demanded salaries, and then complained they were too low. Hamilton, though rich, spoke for them. John Adams had a high view of the dignity of public officials. When he was first sent to England as minister he refused to take a hand with the s.h.i.+p's pumps, like everyone else, 'arguing it was not befitting a person who had public status.' This claim, so un-American (one might think), makes one suppose that Adams would be against salaries. But he was not. He thought it was perks and privileges which produced evil in public men. Without salaries, he said, public office would become the monopoly of the rich. He thought it disgraceful that Was.h.i.+ngton had been allowed to serve as commander-in-chief without being paid. Jefferson shared Was.h.i.+ngton's view, adhering to what he called the 'Roman principle.' 'In a virtuous government,' he said, 'public offices are what they should be, burthens to those appointed to them, which it would be wrong to decline, though foreseen to bring with them intense labor, and great private loss.''” In general, the Southerners were against salaries, the Northerners in favor. The North won, and it was decided even senators should be paid. The amount was left to Congress, which fixed on $6 a day. It seemed high to critics, but then the first Congress met in New York City, where the cost of living was 'outrageous.' In any event congressmen were soon grumbling it was too little, as were senators, who thought they should be paid more than mere members of the House.

What n.o.body seems to have bothered much about was the cost of electioneering. This could be enormous in 18th-century England, up to 100,000 for a single contest, sometimes even more. Nor was it just an English problem. When George Was.h.i.+ngton was first elected a Virginia burgess in 1758, it cost him 40 for 47 gallons of beer, 35 gallons of wine, 2 gallons of cider, half a pint of brandy, and 3 barrels of rum-punch. These electioneering costs were going up in both countries all the time and in England parliament was slowly coming to grips with the problem and disqualifying MPs for bribing electors with drink and money. It is curious, and disappointing, that the gentleman-politicians who created the United States did not tackle the problem of election-costs right at the start, and thus save their successors a great deal of trouble-and cash.

By agreeing to let each state send two senators to Congress, the Founding Fathers built states' rights into the representational process. The House, on the other hand, was to represent the people, and it was agreed that each state was to have at least one Congressman and not to exceed one for every 30,000 persons (excluding Indians not paying taxes and allowing for the three-fifths rule for slaves). A census was to take place every ten years to determine the numbers and thus the total and distribution of congressmen. In 1787, for the first Congress, there were sixty-five congressmen, Rhode Island and Delaware getting one each, Georgia and New Hamps.h.i.+re three each, New Jersey four, Connecticut and North and South Carolina five each, New York and Maryland six, Ma.s.sachusetts and Pennsylvania eight each, and Virginia ten. But America was changing and expanding so fast that this allocation was out of date within a year or two. For one thing, more territories were clamoring to get statehood. Vermont had been declared independent in 1777 by delegates from areas originally called New Connecticut and it pinched bits of New Hamps.h.i.+re and New York, neither of which was ready to yield them. Settlers who wanted to get a valid t.i.tle for their lands did not know which state to apply to. Vermont was virtually neutral during the Revolutionary War, though Britain withdrew any claim to its territory, and it considered signing a separate treaty with Britain and claiming a Swiss-style neutral status. It remained aloof until New Hamps.h.i.+re (1782) and New York (1790) withdrew their land claims. Then it applied to and joined the Union in 1791. So when the Congressional structure was reordered in 1793, as a result of the 1790 census, Vermont was given two seats.

There was a long and acrimonious row over the Virginia backcountry-'that dark and b.l.o.o.d.y land' as it was (perhaps unfairly) called-eventually resolved when Virginia withdrew its claims and the new state of Kentucky was admitted in 1792 and given two seats. The Pennsylvania back-country, organized as the independent state of Franklin, and regarded by North Carolina as a rebellious, landgrabbing illegality, collapsed in 1788, and had to be reorganized by Congress as the Southwest Territory in 1790. Settlers poured in and it soon pa.s.sed the 60,000 mark and was admitted as the state of Tennessee, though not till 1796. Hence, in the 1793 reconstruction, fifteen states were represented in Congress and the number of House seats was raised to 105, Virginia now getting nineteen, Ma.s.sachusetts fourteen, Pennsylvania thirteen, and New York ten. The 1790 census revealed that the population of the United States was increasing even faster than optimists like Franklin guessed-it was now 3,929,827. Ten years later, at the end of the century, the census shows a jump to 5,308,483, which was a 35 percent growth in a decade, and double the 1775 estimate.

This rapid growth gratified many but alarmed some, including the elite. Franklin, who worried himself about the dangers of over-population a generation before Malthus systematized them, did not object to settlers of English descent breeding fast but was disturbed by the prospect of the Englishness of America being watered down by new, non-English, and non-white arrivals. It was one reason he objected to the slave-trade and slavery itself: 'Why increase the sons of Africa by planting them in America,' he asked, 'where we have so fair an opportunity, by excluding all blacks and tawnys, of increasing the lovely white and red?' His mind reaching forward as always, he feared a future world in which the white races, and especially the English, would be swamped:

The number of purely white people in the world is proportionately very small. All Africa is black or tawny; Asia chiefly tawny; America (exclusive of the newcomers) wholly so. And in Europe the Spaniards, Italians, French, Russians and Swedes [sic] are generally of what we call a swarthy complexion; as are the Germans also, the Saxons only excepted, who with the English make the princ.i.p.al body of white people on the face of the earth. I would wish their numbers were increased ... But perhaps I am partial to the complexion of my country, for such kind of partiality is natural to mankind.

He was not at all happy about the number of Germans coming to America, especially to Pennsylvania, where they tended to vote en bloc, the first instance of ethnicity in politics. 'Why should the Palatine boor be suffered to swarm into our settlements and, by herding together, establish their language and manners to the exclusion of ours? Why should Pennsylvania, founded by the English, become a colony of aliens, who will shortly be so numerous as to Germanise us, instead of us Anglicising them?' He wanted language qualifications 'for any Post of trust, profit or honor.' He also considered monetary rewards to encourage Englishmen to marry the German women, but dismissed the idea for 'German women are generally so disagreeable to an English eye that it wou'd require great portions to induce Englishmen to marry them.' These views were by no means unusual among the founders. Neither Was.h.i.+ngton nor Jefferson wanted unlimited or even large-scale immigration.

Defining what const.i.tuted an American citizen was not easy. As early as 1776, New Hamps.h.i.+re and South Carolina, writing their new const.i.tutions, laid down that all state officers must swear an oath 'to support, maintain and defend' the provisional const.i.tution. Six months later, Congress, in adopting independence, replaced loyalty to the crown by loyalty to the nation: 'All persons residing within any of the United Colonies, and deriving their protection from the laws of the same, owe allegiance to the said laws, and are members of such colony ... [and] all persons, members of or owing allegiance to any of the United Colonies ... who shall level war against any of the said colonies ... or be adherents to the King of Great Britain ... are guilty of treason against any such colony.'

This did not settle what citizens.h.i.+p was, however. Indeed the term was then new and little understood. The a.s.sumption was that everyone belonged to his or her particular state and thence derived their citizens.h.i.+p of the United States, a view later categorized by justice Joseph Story (1779-1845) of the Supreme Court, who laid down that 'Every citizen of a State is ipso facto a citizen of the United States.' Most states had citizens.h.i.+p rules of one kind or another. But what of immigrants coming to the country from outside? The federal Const.i.tution of 1787 laid down a national standard of neutralization by Act of Congress. Several Acts were pa.s.sed, in 1795, 1798, and again in 1802, before Congress felt it had got the formula right, the main difference being the length of residence required before the applicant got nationality-the first criterion, two years, was considered too short, the next, fourteen, too long, and finally five years was judged right. The federal Const.i.tution, and the states, reserved citizens.h.i.+p to whites, implicitly excluding blacks (even if free) and still-tribalized Indians, regarded as belonging to foreign nations. White women were citizens except for voting purposes, a rule which was not changed till 1920. Blacks did not get automatic citizens.h.i.+p till 1868, Indians not till 1924. But the most important point was that the new country, like the old colonies, continued to admit immigrants virtually without restriction, and they continued to come, in ever growing numbers.

After five years, most immigrants got the vote, for, as a result of the Revolution, America was rapidly becoming democratic. The Founding Fathers might insist on checks and balances and take precautions against 'the tyranny of the majority,' but though const.i.tutions are made by educated elites, what actually happens on the ground is usually determined by ordinary people. Their demands, as citizens and taxpayers, turned on its head the Revolution slogan 'No taxation without representation.' If the King of England was not allowed to tax Americans without giving them representation, why should states tax any American citizen without giving him a vote about how his taxes were raised and spent? Most states readily agreed. In New York State the federalists, who generally opposed what one of their leaders, Chancellor James Kent, called 'the evil genius of democracy,' fought a determined rearguard action to retain a freehold property qualification, at any rate for the electors of the state Senate. Kent argued that, while everyone else was wors.h.i.+ping 'the idol of universal suffrage,' New York should set an example and maintain property as qualification because it was 'a sort of moral and independent test of character in the electorate, which we could get at in no other practicable mode,' and only voters of sound character could defend society against 'the onrus.h.i.+ng rabble.' But he was answered that making distinctions between one set of Americans and another, especially one based on owners.h.i.+p of land, was 'an odious remnant of aristocracy,' a system of 'privilege,' running directly contrary to the principle that in a true republic 'there is but one estate-the people.' Kent was thus driven to fall back on the argument that property qualifications were needed to protect 'the farmers.' But that made farmers into a mere interest, and why should farming, as an interest, get more protection than any other? Manning the barriers against democracy was a losing cause as early as the 1780s and by 1800 was a lost one. By 1790 five states permitted all males (in some of them only white males) the vote for some or all offices, provided they paid tax. These states, and others, increasingly recognized residency, rather than land-owners.h.i.+p, as the qualification for 'attachment' to the state, and most set the period as two years (some, one).