On The Constitution – Part Two

“We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.” — George Washington and the delegates to the Convention, September 17, 1787

In my first part of On The Constitution I covered the history and meaning of the Declaration of Independence and the thinking of our Founding Fathers on the formation of the Declaration and the American Mind. In this part I will delve into the framing of what Abraham Lincoln referred to as the “Frame of Silver.

At the conclusion of the Revolutionary War in 1783, it was evident that the Articles of Confederation between the states did not sufficiently ensure the interests and security of the Confederation. In September 1786, at the urging of James Madison, 12 delegates from five states (New Jersey, New York, Pennsylvania, Delaware and Virginia) met in Annapolis, Maryland, to consider amendments to the Articles.

Those delegates called for representatives from all of the states to convene at the Pennsylvania State House in Philadelphia for full consideration of the revisions needed, and 12 states (Rhode Island declining) sent 55 delegates, a third of whom had signed the Declaration of Independence.

The most noted delegates were George Washington, Roger Sherman, Alexander Hamilton, Benjamin Franklin, James Madison and George Mason. (Thomas Jefferson was in Europe in his capacity as Minister to France, but he expressed his cautious support for the new Constitution in correspondence with Madison.)

Noticeably absent from the proceedings were Patrick Henry, Samuel Adams and Thomas Paine, who believed the Articles did not need replacement, only modification. They were concerned that a proceeding aimed at establishing a new constitution could place in peril our fundamental liberties. Summing up their sentiments, Henry wrote that he “smelt a rat in Philadelphia, tending toward the monarchy.”

The Philadelphia Convention (Constitution Convention) opened its proceedings on May 25th, 1787, and soon decided against amending the existing Articles in favor of drafting a new constitution. The next three months were devoted to deliberations on various proposals with the objective of drafting a document that would secure the rights and principles enumerated in the Declaration and Articles of Confederation, thus preserving Essential Liberty.

In late July, after much debate, a Committee of Detail was appointed to draft a document to include all the compromise agreements, but based primarily on James Madison's Virginia Plan, establishing a republican form of government subject to strict Rule of Law, reflecting the consent of the people and severely limiting the power of the central government.

A month later, the Committee of Style and Arrangement, which included Governor Morris, Alexander Hamilton, William Samuel Johnson, Rufus King and James Madison, produced the final draft of the Constitution, which was submitted for delegate signatures on September 17th, 1787.

Said Benjamin Franklin of the new document, “I confess that there are several parts of this constitution which I do not at present approve, but I am not sure I shall never approve them: For having lived long, I have experienced many instances of being obliged by better information, or fuller consideration, to change opinions even on important subjects, which I once thought right, but found to be otherwise. ... Thus I consent, Sir, to this Constitution because I expect no better, and because I am not sure, that it is not the best.”

Of the 55 delegates, 39 signed the new Constitution while the remaining delegates declined, most out of concern that the power apportioned through the new plan was a threat to the sovereignty of the several states, and thus, to individual Liberty.

The ensuing ratification debates among the states were vigorous.

James Madison, John Jay and Alexander Hamilton authored The Federalist Papers, which advocated ratification of the new Constitution.

Patrick Henry's Anti-Federalists opposed the plan under consideration because they believed it allocated too much power to the central government. Henry, Samuel Adams, George Mason, Robert Yates, Thomas Paine, Samuel Bryan and Richard Henry Lee were among those who spoke against ratification, and some authored several essays that were aggregated and published as The Anti-Federalist Papers. One of the most important of the Anti-Federalist Papers was No. 10, which argued in contrary to James Madison’s Federalist No. 10.

Whereas democracy entails direct rule of the people, in a republic the people rule indirectly, through their representatives. A republic can therefore encompass a greater population and geographical area. This difference is decisive in the American experiment, Madison argues, for an expansive republic is able to control the inherent danger of majority faction.

The creation in the Constitution of “a more perfect union” did not mean that the union—or its people—would get more and more perfect with time. Rather, this phrase meant simply that the Constitution marked an improvement over the Articles of Confederation.

The majority tyranny that prevailed under the Articles meant that instead of strong but limited government, the nation labored under weak and ineffectual government.

The Founding Fathers — George Washington, James Madison, and Thomas Jefferson — were united in their fear that America’s future under the Articles of Confederation would be short-lived. The Articles, they agreed, not only failed to solve the problem of majority tyranny, but in fact made that problem worse.

In Federalist 10, Madison outlines how the problem of majority tyranny is best solved by enlarging the republic. Factions, or groups acting adversely to the rights of citizens and the interests of the community, can thereby be multiplied, and in their multiplicity counterbalance the pernicious effects they produce. This solution is realistic but not cynical, for it is based on the idea that even though human beings are imperfect, they are still capable of self-government.

Madison writes:

“Among the numerous advantages promised by a well-constructed Union, none deserves to be more accurately developed than its tendency to break and control the violence of faction. The friend of popular governments never finds himself so much alarmed for their character and fate as when he contemplates their propensity to this dangerous vice. He will not fail, therefore, to set a due value on any plan which, without violating the principles to which he is attached, provides a proper cure for it. The instability, injustice, and confusion introduced into the public councils have, in truth, been the mortal diseases under which popular governments have everywhere perished, as they continue to be the favorite and fruitful topics from which the adversaries to liberty derive their most specious declamations. The valuable improvements made by the American constitutions on the popular models, both ancient and modern, cannot certainly be too much admired; but it would be an unwarrantable partiality to contend that they have as effectually obviated the danger on this side, as was wished and expected. Complaints are everywhere heard from our most considerate and virtuous citizens, equally the friends of public and private faith and of public and personal liberty, that our governments are too unstable, that the public good is disregarded in the conflicts of rival parties, and that measures are too often decided, not according to the rules of justice and the rights of the minor party, but by the superior force of an interested and overbearing majority. However anxiously we may wish that these complaints had no foundation, the evidence of known facts will not permit us to deny that they are in some degree true.”

Madison feared the tyranny of an overbearing legislature with no checks or balances being held hostage to the passions of factions. He continues:

“The latent causes of faction are thus sown in the nature of man; and we see them everywhere brought into different degrees of activity, according to the different circumstances of civil society. A zeal for different opinions concerning religion, concerning government, and many other points, as well as speculation as of practice; an attachment to different leaders ambitiously contending for pre-eminence and power; or to persons of other descriptions whose fortunes have been interesting to the human passions, have, in turn, divided mankind into parties, inflamed them with mutual animosity, and rendered them much more disposed to vex and oppress each other than to cooperate for their common good. So strong is this propensity of mankind to fall into mutual animosities that where no substantial occasion presents itself the most frivolous and fanciful distinctions have been sufficient to kindle their unfriendly passions and excite their most violent conflicts. But the most common and durable source of factions has been the various and unequal distribution of property. Those who hold and those who are without property have ever formed distinct interests in society. Those who are creditors, and those who are debtors, fall under a like discrimination. A landed interest, a manufacturing interest, a mercantile interest, a moneyed interest, with many lesser interests, grow up of necessity in civilized nations, and divide them into different classes, actuated by different sentiments and views. The regulation of these various and interfering interests forms the principal task of modern legislation and involves the spirit of party and faction in the necessary and ordinary operations of government.

No man is allowed to be a judge in his own cause because his interest would certainly bias his judgment, and, not improbably, corrupt his integrity. With equal, nay with greater reason, a body of men are unfit to be both judges and parties at the same time; yet what are many of the most important acts of legislation but so many judicial determinations, not indeed concerning the rights of single persons, but concerning the rights of large bodies of citizens? And what are the different classes of legislators but advocates and parties to the causes which they determine?”

Anti-Federalists argued that the Constitution violated the maxim of the French political philosopher Montesquieu that the three branches of government should be “separate and distinct” in order to guard against tyranny. Using Montesquieu’s own examples and the examples of American state constitutions, Madison refutes the idea that partial overlap of the branches is dangerous to liberty and states in Federalist No. 47:

“No political truth is certainly of greater intrinsic value, or is stamped with the authority of more enlightened patrons of liberty than that on which the objection is founded. The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.”

Virginia, the most populous state, adopted its state constitution in 1776, a month before the Declaration of Independence passed Congress. Thomas Jefferson, Virginia’s governor from 1779 to 1781, addressed the problems that plagued the state’s first attempt at self-government in his 1784 book, Notes on the State of Virginia Jefferson wrote:

“All the powers of government, legislative, executive, and judiciary, result to the legislative body. The concentrating these in the same hands is precisely the definition of despotic government. It will be no alleviation that these powers will be exercised by a plurality of hands, and not by a single one. One hundred seventy-three despots would surely be as oppressive as one. Let those who doubt it turn their eyes on the republic of Venice. As little will it avail us that they are chosen by ourselves. An elective despotism was not the government we fought for, but one which should not only be founded upon free principles, but in which the powers of government should be so divided and balanced among several bodies of magistracy, as that no one could transcend their legal limits, without being effectually checked and restrained by the others. For this reason that convention which passed the ordinance of government, laid its foundation on this basis, that the legislative, executive, and judiciary departments should be separate and distinct, so that no person should exercise the powers of more than one of them at the same time.”

In his essay Vices of the Political System of The United States Madison outlines the main issues that the Constitutional Convention should address. His early arrival in Philadelphia allowed him to incorporate his ideas into a recommended plan for the Convention—what came to be called the Virginia Plan—representing no mere revision of the Articles of Confederation, but the adoption of an entirely new Constitution. In his argument for a tripartite form of republican government he wrote:

“If the multiplicity and mutability of laws prove a want of wisdom, their injustice betrays a defect still more alarming: more alarming not merely because it is a greater evil in itself, but because it brings more into question the fundamental principle of republican Government, that the majority who rule in such Governments, are the safest Guardians both of public Good and of private rights. To what causes is this evil to be ascribed?

These causes lie: 1. In the Representative bodies. 2. In the people themselves.

1. Representative appointments are sought from three motives: 1. ambition, 2. personal interest, 3. public good. Unhappily the two first are proved by experience to be most prevalent. Hence the candidates who feel them, particularly, the second, are most industrious, and most successful in pursuing their object: and forming often a majority in the legislative Councils, with interested views, contrary to the interest, and views, of their Constituents, join in a perfidious sacrifice of the latter to the former. A succeeding election it might be supposed, would displace the offenders, and repair the mischief. But how easily are base and selfish measures, masked by pretexts of public good and apparent expediency? How frequently will a repetition of the same arts and industry which succeeded in the first instance, again prevail on the unwary to misplace their confidence?”

The United States Constitution is structurally designed in part to prevent tyranny. Separation of powers is the means by which power is divided and its accumulation in the hands of any single entity denied.

During the 1780s, most states had constitutions that formally divided the government’s power, yet in practice the legislatures dominated. The state constitutions required separation of powers in theory, but failed to deliver it in reality. As a result, the constitutions were little more than what Publius called “parchment barriers.”

In order for separation of powers to work, each branch of government must have the “constitutional means” to resist the encroachment of the other branches. This is what today we call “checks and balances.”

In addition to institutional checks and balances, there exist also the “personal motives” of people that will lead them to resist the encroachment of the other branches. Human nature is constant across the ages, according to Publius, and human beings are naturally ambitious. Instead of ignoring or attempting to suppress ambition, the Framers sought to channel it through the Constitution, so that it might serve the cause of liberty and justice rather than threaten it.

The Framers understood that human nature has noble characteristics that are essential to self-government, but also that it contains baser features, for which government must account. The Constitution’s structural separation of powers recognizes this truth, and in preventing tyranny makes self-government possible.

Madison argues in Federalist No. 51 that the Constitution will maintain separation of powers by means of its “interior structure.” The “great security” against tyranny is to give the members of each department the “necessary constitutional means” combined with the requisite “personal motives” to resist encroachments on their power. The fact “that such devices should be necessary to control the abuses of government” is a “reflection on human nature.” Madison goes on the state:

“But the great security against a gradual concentration of the several powers in the same department consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. The provision for defense must in this, as in all other cases, be made commensurate to the danger of attack. Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place. It may be a reflection on human nature that such devices should be necessary to control the abuses of government. But what is government itself but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.”

The new Constitution stipulated that once nine of the 13 original states ratified it through state conventions, a date would be established for its implementation. This created controversy, as the document in question had no standing authority to make such a stipulation. However, once the ninth state, New Hampshire, reported its convention's approval on June 21st, 1788, the Continental Congress set the date for enactment of the Constitution for March 4th, 1789.

With Rhode Island's ratification on May 29th, 1790, all 13 states had endorsed the Constitution.

Though critical of many of its provisions, Thomas Jefferson wrote in reflection of the Convention and its product, “The example of changing a constitution by assembling the wise men of the state, instead of assembling armies, will be worth as much to the world as the former examples we had given them. The constitution, too, which was the result of our deliberation, is unquestionably the wisest ever yet presented to men.”

Endeavoring to further define our Constitution's limits on government to encroach upon the innate rights of the people, James Madison, its primary architect, introduced to the First Congress in 1789 a Bill of Rights — the first 10 Amendments to our Constitution — which was then ratified on December 15th, 1791.

The Bill of Rights was inspired by three remarkable documents: Two Treatises of Government, authored by John Locke in 1689 regarding protection of “property” (in the Latin context, proprius, or one's own “life, Liberty and estate”); the Virginia Declaration of Rights, authored by George Mason in 1776 as part of that state's constitution; and, of course, our Declaration of Independence, authored by Thomas Jefferson.

There was great consternation regarding the enumeration of these rights, as such registration might be taken to suggest that they were subject to amendment rather than unalienable; granted by the state rather than “Endowed by [our] Creator.”

The preamble to the “Bill of Rights” states; “The Conventions of a number of the States having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best insure the beneficent ends of its institution.

As Hamilton argued in Federalist No. 84:

“I go further, and affirm that bills of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution, but would even be dangerous. They would contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted. 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?”

On the other hand, George Mason was among 16 of the 55 Constitution Convention delegates who refused to sign because the document did not adequately address limitations on what the central government had “no power to do.” Indeed, he worked with Patrick Henry and Samuel Adams against its ratification for that reason.

As a result of Mason's insistence, the first session of Congress placed these 10 additional limitations upon the federal government for the reasons outlined by the Preamble to the Bill of Rights:

“The Conventions of a number of the States having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best insure the beneficent ends of its institution.”

Read in context, the Bill of Rights is both an affirmation of innate individual rights (as noted by Thomas Jefferson: “The God who gave us life gave us Liberty at the same time”) and a clear delineation of constraints upon the central government.

In my next chapter of On The Constitution I will explore Lincoln’s view of the Constitution and the Rule of Law.

Click here for Part Three.