Chapter One

The Compact

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In defending their decision to declare independence from Britain in 1776, American revolutionaries ceased to regard as relevant questions of sovereignty, as well as arguments based upon colonial charters and historic rights of Englishmen. Instead, they relied upon the readily available body of doctrine most suitable to the purpose, namely, the natural rights and compact theories associated with John Locke. Those ideas were not original with Locke--they can be traced back at least as far as the 1320s, when the Italian political philosopher Marsilius of Padua published his Defensor pacis, and they were commonplace in patriotic sermons--but it was Locke's work that inspired the Declaration of Independence, as a comparison of the language of the document with Locke's Second Treatise of Civil Government abundantly testifies.

In Locke's scheme of things, the compact that establishes and legitimizes a political society is between a prince or governing body and the people, between the ruler and the ruled. If the ruler fails to protect the people in their lives, liberties, and estates, and does so repeatedly and by design, the sovereign power reverts to the people, who, having returned to a "state of nature," become free to reconstitute a government on such principles (in the language of the Declaration) "as to them shall seem most likely to effect their Safety and Happiness."

But, though Locke's formulation was easily adaptable to the revolutionaries' purpose, it did not quite accord with their circumstances. The colonies did not have a single hypothetical compact with the king of Great Britain; they had thirteen real compacts in the form of charters that gave them existence as political societies. Two of these compacts established corporations, those of Connecticut and Rhode Island; three placed an intermediate proprietary authority between Crown and colony, those of Pennsylvania, Delaware, and Maryland; and the rest had governors directly responsible to the Crown. Thus if the king had, as the Declaration averred and sought to prove, performed "a long Train of Abuses and Usurpations" designed to "reduce them under absolute Despotism," sovereign authority would have devolved not upon the colonists as a whole but upon the people of New Hampshire as one political society, those of Massachusetts as another, and so on.

The revolutionaries took awhile to work out a way of establishing governments appropriate to their declared principles. The corporate colonies continued to govern themselves under their old charters. Elsewhere, existing legislatures or rump sessions of legislatures drafted constitutions and simply announced that they were in effect. Not until 1780 was a proper method devised: the people of Massachusetts, assembled in town meetings, elected delegates to a convention for the express purpose of drawing up a state constitution, and the finished document was referred back to the people for ratification. That became the normal practice.

One peculiarity of the arrangements wants notice. The revolutionary state constitutions, however they were framed and adopted, were assumed to be based upon popular consent, and the governments they established, representing the sovereign people, were themselves sovereign in Blackstone's sense of the term. That is to say, the state governments were authorized to exercise any power that was not expressly forbidden to them by the several constitutions. The precise opposite situation pertained in regard to Congress, which, before and after the adoption of the Articles of Confederation, had no powers except those that were expressly granted to it.

When, in 1787, existing constitutional arrangements became manifestly inadequate, a new compact became necessary, but because of prior commitments, this one would have to be something unprecedented. The Constitution would be a compact not among sovereign states, as was the 1781 Articles of Confederation, nor a Lockean compact between ruler and ruled, nor even a compact of the whole people among themselves. It would be a compact among peoples of different political societies, in their capacities as peoples of the several states. Such a compact was undreamed of in political philosophy.

Abraham Lincoln thought otherwise. In his message to Congress on July 4, 1861, he insisted that "Originally some dependent colonies made the Union, and, in turn, the Union threw off their old dependence for them, and made them States.... The Union, and not themselves separately, produced their independence and liberty. ... The Union is older than any of the States, and, in fact, it created them as States." That view has been supported by some historians, and it is supported by some facts, notably that the Declaration was issued by the Second Continental Congress, that it spoke of Americans as "one people," and that in May 1776 Congress passed a resolution urging the colonies to adopt permanent governments.

But this "nationalist" interpretation, as it has been called, is untenable. Congress merely "recommended" that the colonies make permanent governmental arrangements, for the members of Congress were there as agents of existing political societies, and in the nature of things, agents cannot authorize their principals to do anything. Besides, the resolution urging the colonies to act was approved by delegates from only six of the thirteen colonies. As for the response to the resolution, two colonies had already made arrangements before the adoption of the resolution, and just three reacted by formulating new political structures. And according to Lockean principles, the people of the colonies could not have returned to a state of nature unless their legislatures had gone out of existence, which they had not. Most importantly, the understanding of participants made the plural nature of the events unmistakably clear in the three documents that brought the United States into existence--the Declaration of Independence, the Articles of Confederation, and the 1783 Treaty of Paris in which Britain recognized the independence of each state.

The Declaration consists of three parts. The first is a two-paragraph preamble, setting forth in ringing, almost poetic, phrases the Lockean version of the origin and purposes of government and the circumstances under which a regime may be dissolved. The second and longest part is an itemized indictment of "the present King of Great Britain," a catalog of the injustices and usurpations committed by that monarch against his American colonists. The third part is the actual declaration proper, in which the precise language is crucial: "We, therefore, the Representatives of the united States of America ... do, in the Name, and by Authority of the good People of these Colonies, solemnly publish and declare" themselves to be "Free and Independent States," and as such "they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do." The plural language is used throughout. In addition, in keeping with an eighteenth-century convention, nouns in the document are capitalized, and what the delegates represent are united States--that being not a name, but "united" being merely an adjective describing the stance of the states in opposition to Britain.

The next founding document referred to itself as "articles of Confederation and perpetual Union between the States of Newhampshire, Massachusetts-bay, Rhodeisland and Providence Plantations," and so on down to Georgia. Article two of the instrument declared that "Each state retains its sovereignty, freedom and independence" in every power, jurisdiction, and right "which is not by this confederation expressly delegated" to the states in Congress assembled. Article three described the confederation as "a firm league of friendship." In general, Congress was given exclusive authority to conduct relations with foreign powers, including war, and to settle boundary disputes between states. Congress was not given power to levy taxes or coerce individuals, and in voting on any question, each state had a single vote. Amendments to the Articles had to be unanimous, inasmuch as it was for practical purposes a treaty.

The Treaty of Paris, which can be regarded as the document that granted or recognized independence, was, like the Articles, cast in plural form: "His Brittanic Majesty acknowledges the said United States, viz. New Hampshire, Massachusetts Bay," and the rest, "to be free, sovereign and independent States." In subsequent references to America, the peace treaty used the phrase "the said States." (The 1778 Franco-American treaty of alliance also used the plural: "The Most Christian King and the United States of North America, to wit: New Hampshire, Massachusetts Bay, Rhodes Island....")

Patriots of all stripes accepted the primacy of the states as a fact of political life, but they were far from unanimously happy about it. Considerable numbers of public men ardently favored an increase in the powers of Congress, but even more people jealously guarded the prerogatives of the states. Which way people leaned was a function of an interplay between circumstances and ideology.

The most impelling circumstances arose from the war. Enthusiasm for the Union and the proximity of the enemy were closely correlated. The middle states--New York, New Jersey, Pennsylvania, and Delaware--and from 1779 onward the lower South were overrun by the British army, and denizens of those areas were keen in their support of Congress. That attitude was bolstered by internal conditions, the tranquility of the areas being disrupted by political radicalism, ethnic animosities, or hostile Indians. In New England, by contrast, there was virtually no fighting after the spring of 1776, and there was almost none in the upper South until the climactic campaigning that led to the American victory at Yorktown in 1781. Moreover, the states in those regions had none of the internal problems that plagued the middle states and lower South. Leaders in New England and the upper south were ardent champions of the rights of the states and nearly paranoid in their vigilance against usurpation by Congress.

Predilections based upon circumstances were reinforced by ideological dispositions. Patriot leaders in New England and Virginia eagerly embraced republican principles of political theory, which included opposition to and fear of concentrated power, active participation in public affairs, and suspicion of moneyed men. And, following the teachings of Montesquieu, who held that republics could be viable solely in small territories, they equated republicanism with local control. Nationally oriented groups in the middle states and lower South tended to be aristocrats (Hudson Valley patroons in New York, rice plantation families in the lower South) or wealthy merchants in Philadelphia who regarded states' rights republicans as radical democrats posing a genuine threat to social and political stability. The two groups had hardened into hostile factions in Congress before the end of 1776, and their enmity and mutual distrust continued until after the war. Leadership of the New England--Virginia coalition clustered around John and Sam Adams of Massachusetts and the Lees of Virginia (the "Lee-Adams Junto"); that of the middle states and lower South revolved around John Dickinson and, as time went by, the Philadelphia merchant Robert Morris and the Rutledges of South Carolina.

The states' rights republicans dominated Congress from 1776 until 1780. They managed to supply the armies in the field, at first through loans from patriotic citizens, then with loans from the Netherlands and France, but mainly by printing unsecured paper money that rapidly depreciated to almost nothing. Along the way, various congressmen engaged in blatant corruption and profiteering, more demonstrated an utter lack of competence, and most displayed an ongoing distrust of the military that was defending them. The officers and men of the Continental Line grumbled and cursed Congress, many soldiers deserted and others mutinied, but George Washington remained unswervingly loyal to Congress and the cause, and he held the army together.

During the winter of 1780-1781 nationalists came into control of Congress and forthwith set out to strengthen it. To obtain funds, they passed and sent to the states for ratification an amendment to the not-yet-ratified Articles of Confederation that would have given Congress power to levy a 5 percent impost on imported goods. They overhauled the central administrative machinery, scrapping the cumbersome and ineffectual committee system under which Congress had operated and creating three administrative departments--foreign affairs, war, and finance--each to be headed by a superintendent.

Robert Morris, the superintendent of finance, had grand plans that he meant to set in motion once the impost amendment was adopted, but he was diverted in the meantime by a pressing need to supply Washington's army for the impending action at Yorktown. He managed to do so through financial wizardry, and then he returned to his larger scheme. Americans, he knew, shared an enormous burden in the form of public debt, amounting to about as much as all the commercial property in the country, and an enormous asset in the form of western lands that had been ceded to Congress, amounting to about twice as much acreage as the settled land in the country. Most people who thought about this asset and this burden proposed to use the land to cancel the debts. Morris proposed instead to use both as the basis for establishing semipermanent administrative agencies, one to service the debt and the other to sell the land. That would greatly expand the activities of the central authority and give many thousands of people a stake in its continued strength.

When the scheme fell through as a result of the machinations and speculations of politicians in Rhode Island and Virginia, Morris and his circle undertook a truly audacious venture. During the winter of 1782-1783 the army was encamped at Newburgh, New York, awaiting the arrival of the peace treaty. The officers, not having been paid for years and facing the prospect of returning home and losing their property for nonpayment of debts and taxes, were disgruntled about Congress's inability to grant them relief. Morris and his friends conceived the notion of stirring up agitation in the army and employing the threat of a military coup to frighten Congress into passing and the states into ratifying amendments to the Articles giving Congress expanded sources of revenue. The effort got out of hand, and a mutiny nearly erupted before Washington was able to restore order.

The situation, and indeed the affairs of the nation, rapidly unwound. News of the peace treaty arrived, the officers were mollified by the promise of a bonus of five years' gay, they were given notes for three months of back pay, and they were sent home on leave instead of being formally discharged. Congress fled Philadelphia after a group of drunken Pennsylvania soldiers threatened the delegates, adjourning to the tiny town of Princeton, New Jersey. So few of them actually went there that Congress barely had a quorum to ratify the treaty. Congress did, however, propose a set of revenue amendments and send them to the states. On the fate of the amendments rested the fate of the Confederation.

During the next four years, as the states leisurely took up the amendments, the Union all but dissolved. Congress had a quorum about half the time, and the republicans who again dominated it were not particularly concerned that it do anything, apart from somehow retaliating for commercial restrictions that Britain had imposed after 1783. Congress did have accomplishments, notably auditing the accounts that constituted the public debts and providing for the survey and ultimate governance of the public domain, the Northwest Territory. It also negotiated a commercial treaty with Prussia, but that, like the Treaty of Paris, was limited by the absence of a capacity to give treaties the force of law.

The mood of Congress in the postwar years is captured by two vignettes. In 1785 the Massachusetts legislature instructed its delegates to seek a general convention to revise the Articles. They refused, declaring that "plans have been artfully laid" to change "our republican Governments, into baleful Aristocracies," and a convention would provide the conspirators with a fresh opportunity. The next year Superintendent of Foreign Affairs John Jay negotiated with the Spanish minister, Diego de Gardoqui, and proposed to forgo American rights to navigate the Mississippi in exchange for lucrative commercial concessions; when the proposal came to a vote in Congress, heated debate along sectional lines stimulated mutterings of breaking the Union into two or three regional confederations.

While Congress was floundering, the states were conducting their several experiments in independence. The smaller and weaker fared poorly, the larger tolerably well, but the course of state policies generally tended toward dissolving the bands of union. Thus it came as no surprise that, when the abortive Annapolis commercial convention of September 1786 issued a call for a general convention to amend the Articles, the reaction was lukewarm. Congress referred the proposal to a committee of three, which referred it to a committee of thirteen, which was never appointed. The Annapolis convention had sent its recommendation directly to the states as well as to Congress, but by the end of the year, only four states--Virginia, New Jersey, Pennsylvania, and North Carolina--had voted to send delegates to the proposed convention.

Then, early in 1787, came two developments that electrified friends of the Union into action. The first was Shays's Rebellion, an armed uprising in central and western Massachusetts that was essentially a taxpayers' revolt at base but was widely perceived as an anarchistic and leveling movement that threatened to destroy social order in America. The second was news that New York had definitively rejected the 1783 revenue amendments, thereby dooming the Confederation Congress to bankruptcy. Stirred by these turns, the legislatures of every state except Rhode Island voted to send delegates to the Constitutional Convention.

The convention was scheduled to meet in Philadelphia on Monday, May 14, but not enough delegates arrived to constitute a quorum until two weeks later. As delegates drifted in, two or three a day, it seemed evident that archnationalists would dominate the proceedings. The radical republicans of 1776 were conspicuously absent: neither of the Adamses was there, nor was John Hancock; none of the Lees attended, nor did Patrick Henry or Thomas Jefferson or Thomas Paine. George Washington, who did not make up his mind to attend until a few weeks before the convention, presided over the deliberations. Robert Morris was present, along with his close allies James Wilson and Gouverneur Morris; so were John Rutledge and some ardent younger nationalists, including James Madison and Alexander Hamilton.

The nationalists' apparent dominance was indicated by the first substantive vote that was taken--a motion "that a national Government [ought to be established] consisting of a supreme Legislative, Executive & Judiciary." One state delegation, Connecticut's, voted against the proposal, one was divided, and six voted aye. That vote, however, did not mean that nationalists would have an entirely free hand, for the delegates had already rejected a proposal that the states should be given votes in the convention in proportion to their populations. Instead, the one-state, one-vote rule of Congress was adopted.

That decision was pivotal, for the nationalists, though numbering a majority of the delegates, did not control a majority of the delegations. Consequently, they were unable to have the principle of confederation abandoned in the legislative branch they proposed to reconstitute and empower. Early on, the "small states"--those without claims to western lands--conceded that representation should be proportional to population in one of the two proposed legislative branches, but they insisted that the states retain equal votes in the other branch. More than a month of disagreement ensued--during which, to be sure, progress was made toward shaping a constitution--and efforts at reconciliation failed. Finally, on July 16, after considerable backstage wheeling and dealing, the convention adopted a compromise proposal offered by a committee chaired by Benjamin Franklin: equality in the second branch, but bills for raising and spending money would originate in the popular branch.

Since the members of the Senate would be elected by the state legislatures, the constitutional system would, as Oliver Ellsworth of Connecticut described it, be "partly national; partly federal," one branch representing the people of the several states, the second representing states directly as states. Moreover, given the ways that additional features of the proposed constitution were subsequently worked out, the system would be further mixed in two important ways. The president was to be elected by electors chosen by the voters or by the legislatures, as the individual legislatures should determine, and the number of electors allocated to each state would be the combined number of its representatives and senators. And the Senate, representing the residual sovereignty of the states, would share with the president the power to appoint ambassadors and make treaties.

Sovereignty was thus being divided in the makeup of the proposed government, and it was divided in the allocation of powers, too. The central government would have supreme power in the limited areas that were entrusted to it: the conduct of foreign relations; the raising and command of armed forces; the regulation of interstate and foreign commerce; the levying of various kinds of taxes, including an exclusive power to tax imports; and assorted miscellaneous concerns such as the granting of copyrights and patents and the punishment of counterfeiting. Supremacy in regard to all non-delegated powers remained in the states or the people.

Almost, but not quite. As nationalists saw things, reorganizing and empowering the central authority was not enough. The excesses of the state governments must also be curbed. The sovereign states had persecuted loyalists by enacting bills of attainder and ex post facto laws. They had confiscated estates and refused to return them, in violation of the Treaty of Paris, and they had prevented the collection of bona fide prewar debts, again in violation of the treaty. They had passed legal tender laws, such as South Carolina's notorious Pine Barren Act, permitting the payment of debts (in the case of South Carolina, largely owed by wealthy planters) with worthless lands. They had issued unsecured paper money that rapidly depreciated, enabling governments to expunge public debts and individuals to wipe out private debts. They had interfered systematically with private commercial transactions and suspended the obligations of private contracts. They had levied taxes at rates ten to twenty times any that had been levied during the colonial period and had increased the volume of legislation on a scale that dwarfed the increase in taxes.

The delegates in the Philadelphia convention attributed these misdeeds precisely to the fact that state governments were close to the people. "The evils we experience," said Samuel Adams's erstwhile protégé Elbridge Gerry, "flow from the excess of democracy. The people do not want virtue; but are the dupes of pretended patriots." Edmund Randolph of Virginia declared that the origin of the evils was to be found "in the turbulence and follies of democracy: that some check therefore was to be sought agst. this tendency of our Governments." And they were not alone in having these sentiments.

The most radical proposal for restraining the states came from Charles Pinckney of South Carolina and James Madison. During the second week of the convention, Pinckney moved that the national legislature be empowered to veto state laws that it judged to be "improper." Madison seconded the motion, declaring it to be imperative. "This prerogative of the General Govt. is the great pervading principle that must controul the centrifugal tendency of the States; which, without it, will continually fly out of their proper orbits and destroy the order & harmony of the political system." After discussion, Madison conceded that the power might be entrusted to the upper house, in order that "the more numerous & expensive branch therefore might not be obliged to sit constantly." The motion was overwhelmingly rejected, three state delegations being in favor, one divided, and seven against. The question came up again on July 17 and August 23 and was rejected both times. Yet, even after the convention had ended, Madison remained convinced that the absence of a negative on state laws was a flaw that might prove fatal to the Constitution.

What the convention did instead was incorporate a number of particular restrictions on the states into article 1, section 10, of the Constitution. States are forbidden to enter into international agreements, tax imports or exports except in special circumstances, keep troops (except militias) or ships of war in time of peace, or otherwise interfere in foreign relations. In internal matters, they are not allowed to "coin Money; emit Bills of Credit; make any thing but gold and silver Coin a Tender in Payment of Debts," pass bills of attainder and ex post facto laws, grant titles of nobility, or pass any "Law impairing the Obligation of Contracts."

A few additional provisions regarding the relations among the several states and between the states and the general government were placed in the Constitution. One concerned the electorate. Many and perhaps most of the delegates in Philadelphia wanted to require a property qualification for voters for the House of Representatives, the branch of the government chosen directly by the people of the states. A uniform qualification, however, was impracticable because of the wide disparities in wealth from state to state. What would have been sufficient to continue the dominance of the planter class in a wealthy state like South Carolina, for example, would have disfranchised all but a handful of people in a poor state like New Hampshire. The delegates settled instead upon a stipulation in article 1, section 2, that voters for members of the House "shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature." Among the unintended consequences of that provision was that in several states only Christians could vote for representatives. More to the point, it meant that the states retained control over who chose the representatives.

Relations among the states--reciprocity in recognizing one another's laws, extradition of fugitives, and the like--are covered in article 4, along with a limitation upon how the sovereign people may exercise power: "The United States shall guarantee to every State in this Union a Republican Form of Government." Article 5, the amending clause, permits amendments to be originated in either Congress or a convention requested by the state legislatures, and their ratification to be made by three-fourths of the state legislatures or state conventions. Finally, article 6 makes the Constitution, laws passed in accordance with it, and treaties made under its authority the supreme law of the land, irrespective of the constitutions and laws of the individual states.

(Continues...)