Chapter 7 Forming a Government
Now that the war was over & independence achieved, what would Americans do with that independence? Even before the end of the Revolution, the Second Continental Congress urged each state to form state governments. The several state governments had certain features in common:
1. Most had a bicameral legislature.
2. All had a Declaration of Independence.
3. All had a bill of rights.
4. All but Pennsylvania had a governor.
5. However, in the states that did have a governor, they all
severely limited the power of the state governor. (no state gave veto power, nine limited the governors to one term, eight of the governors were chosen by the state legislatures. This was due to the Americans’ old mistrust of their colonial governors. John Adams tried to point out that the colonial governors were appointed by & answerable to the king. The new governors would be responsible to the people, Adams pointed out. (to no avail)
6. Each state gave the greatest power to the legislature.
7. There were to be free elections for the legislatures, as the framers tried to make the legislatures responsive to the people.
However, the framers of these new state governments severely limited who could vote for those state legislatures. Here we see a difference between liberals of that time & liberals of today. The liberals of the late 18th century believed in natural rights but did not believe that the right to vote or hold office was among them.
Several of the new state constitutions had religious requirements for voting. In the Carolinas, one had to be a Protestant to be elected to public office. Every state had property requirements for voting & higher requirements for holding elective office. Most also had educational requirements for voting.
Liberals of today believe that the right to vote might be the most important of all natural rights.
Rich landowners & businessmen used the property requirements as a way to keep backwoodsmen & the poor from voting. Many liberals of the time believed that if one gave the vote to the working class, they would just sell it to the rich.
As the nation expanded the property requirement became less limiting. As more Americans were able to meet the property requirements, they began to demand greater participation in their government. By today’s standards, this was not a very democratic system. But, in the world of the late 1700’s, it was probably the most democratic system on earth.
Also, one should remember that most in Western Europe & the United States regarded complete democracy with fear & were afraid it would lead to mob rule.
After 1778 during the Revolution, what was known as the United States was held together by the Articles of Confederation. At best, the Articles provided for a loose union of states, each jealous of their own independence, did delegate enough power to the central government to carry on the war & negotiate peace with Britain.
Powers of the Confederation Congress:
1. make war 5. settle interstate disputes
2. make peace 6. regulate standardization of coins
3. send & receive ambassadors 7. borrow money
4. make treaties & alliances 8. maintain a postal service
The Confederation Congress was unicameral with each state having one vote.
There were several shortcomings of the Articles"
1. No power to tax (keep that in the hands of state legislatures)
2. Could not regulate interstate or foreign commerce.
3. No national court system
4. No executive branch
5. Anyy amendment to the Articles had to pass unanimously in Congress & approved by all the states.
In spite of these shortcomings, the Articles were a step in the right direction.
The Confederation Congress did a couple of good things. It passed the Land Ordinance of 1785 & the Northwest Ordinance of 1787. The purpose of these laws was to provide the central government with a regular source of revenue. Explain.
The Land Ordinance of 1785 provided for the survey of the land that would be called the Northwest Territory. The territory would be divided into 6 mile square townships. Each township was to be divided into 36 one mile square sections. Each section was to be numbered identically in each township. The central government reserved the same four sections in each township to give to veterans of the Revolution for their service. The rest of the land was to be sold at public auction with bids starting at $640 per section. When buying from the government, the sections could not be divided.
If the Land Ordinance of 1785 provided for the survey & sale of the land of the Northwest Territory, the Northwest Ordinance of 1787 provided for the governing of that land and for the admission of new states from that land.
The Northwest Ordinance was the greatest single accomplishment of the Confederation Congress.. It set a template for the admission of new states to the union. It also guaranteed that new states would have the same powers and privileges as the original states. In doing this the Confederation Congress extended the idea of equality of citizenship. The people in the new states would not be second class citizens or provincials. They would be equal citizens. Any American could leave his original state & move west taking his rights with him. This was a result of the Americans’ experience being part of the British Empire, being British citizens, but not the equal of those living in Britain.
It is very possible that the United States would not have expanded as quickly if not for the extension of citizenship. It is also quite possible that we would not be one country today if those who moved west would have been treated as provincial.
Another important provision of the Northwest Ordinance was the one that banned slavery "forever" in the territory and in all states that would be made from the territory. This established the precedent that Congress had the power to regulate slavery in territories and in future states. This was to become VERY important later.
There would be many problems for the new nation in the 1780’s. The British did not follow their agreement to withdraw troops from forts in the northwest. The Spanish did not follow their agreement to allow American western farmers the use of the Mississippi or right of deposit at New Orleans. The French, Spanish & English kept U. S. merchant ships out of their harbors. The British encouraged Indians along the frontier &
in the Northwest to attack American settlers & fur traders. And the Confederation government seemed powerless to do anything about it.
There were also problems between the states themselves. They argued over control of rivers, control of lighthouse and trade. States put tariffs on goods coming in from other states. Then there were reciprocal tariffs. New York & New Jersey almost went to war.
It seemed to many in the United States and in Europe that it was just a matter of time before the United States broke up. Europeans were planning on how to come in & pickl up the pieces.
As matters deteriorated economically & the weaknesses of the Articles became more apparent, more & more influential Americans were coming to the conclusion that something had to be done. The most beloved & respected man in America, George Washington, referred to the Confederation Congress as a "limping, half-starved government." He wrote a circular letter pointing out the need for a government "strong enough to meet its obligations". Maybe he was thinking about all the letters he was getting from former soldiers of his.
A meeting was held at Mount Vernon of representatives from the states along the Potomac. The men at that meeting decided maybe representatives of all the states should meet to discuss the situation facing the country.
The Confederation Congress sent out an invitation to each state to send representatives to a meeting to be held in Philadelphia. The purpose of the meeting was for the "sole purpose of revising the Articles of Confederation".
All together, 65 men were appointed by 12 states to attend the meeting. Rhode Island sent no one. Their state government had been taken over by small farmers who saw no reason to revise the Articles. Fifty-five made it to at least one meeting, but the main work of the convention would be done by a group of about twenty. And what a group it was.
Three great leaders of the Revolution did not attend because they were representing the U. S. abroad. John Adams, Jefferson & John Jay were in England, France & Spain. Many other leaders of the revolutionary era chose not to attend because they were opposed to anything that might create a stronger central government. Tell story of Patrick Henry (I am an American, not a Virginian to Virginia is my country)
It was, for the most part, a young group. The average age was 42. Five were under 30. Only four were over sixty with Franklin being the oldest at 81. He was fifteen years older than the next oldest.. Nine were born in Europe.
The delegates chose Washington to be chair. That was a great move. It gave instant credibility to the meeting. He spoke very little during the meetings. He was in a lot of pain, both mental & physical, that summer in Philadelphia.
When he did it was mostly for procedural matters. He saved his most important words for the crucial last day when the delegates were getting ready to vote on their final product. His words would reach through the centuries: "Let us raise a standard to which the wise and honest can repair".
There was a great collection of genius at the Convention. Ben Franklin was the unofficial host of the Convention. Philadelphia was his town. He hosted parties at his house. His main contribution was cutting through the tension – keeping things lose when it looked like everything would come bursting at the seams.
There was James Madison. He was only 36 at the time. He was the leader of the ones favoring a stronger central government. The "Master Builder of the Constitution" and the "Father of the Constitution", Little Jemy probably knew more about the nature of constitutions & government than any man in America.
Most of what we know from the Constitutional Convention we know from the notes Madison took. He was the only member who was allowed to take his notes back to his boarding house. The delegates voted not to make his notes public until after the last one died. That would be in 1840.
There was Alexander Hamilton. He might have been the smartest man at the Convention. Hamilton was in favor of a strong central government patterned much after Britain. There were many more, but we don’t have time to talk about them. Read about them in your book.
On the first day if the Convention, there were not enough delegates in attendance to hold the meeting. They postponed the opening until May 25, 1787. On that date, only 29 made it. They blamed the low attendance on a terrible thunderstorm but very seldom were there more.
After a few days of setting up the rules, Edmund Randolph, chair of the Virginia delegation "opened the main business" of the Convention. He submitted a set of resolutions drawn up mostly by Madison & discussed by the rest of the Virginia delegation. Randolph spoke for over three hours.
This set of resolutions became known as the Virginia or "Big State" Plan. It called for a strong central government of three branches.
1. Legislative branch – bicameral with representation in each determined by population. Members of the lower house would be chosen by the people of each state. Members of the upper house of the national legislature would be chosen by the members of the lower house from each state.
2. Executive Branch – A Chief Executive was to be chosen by the national legislature & would serve a maximum of two terms.
3. Judicial Branch – There would be a national court system.
4. There was to be a clear superiority of the national government over the state governments.
This proposal scared the delegates from the small states. Delegate Paterson of New Jersey attacked the Virginia Plan, saying that the small states would rather have a king than the Virginia Plan. He said at least a king would be king of all the people. In the Virginia Plan, the big states would dominate the small states.
Paterson did more than just complain. He submitted an alternate plan. It would be called the New Jersey, or Small State, Plan. First, Paterson reminded the delegates what their purpose was supposed to be – "for the sole purpose of revising the Articles of Confederation".
The Small State Plan
1. Unicameral legislature with each state having equal representation.
2. Congress would be granted two important powers denied it by the Articles: the power to tax & the power to regulate foreign & interstate commerce.
The debate over those two proposals would go on all that summer in Philadelphia. The main points of contention would be the executive & representation in Congress.
There was a lot of talk in Philadelphia that summer over what was going on inside the meeting hall. That was because the delegates decided to hold their meetings in secret. Madison later would claim that the secrecy was necessary or nothing would have been accomplished. He said the delegates needed to feel free to discuss anything without fear of public reaction.
One of the things people were saying was that the delegates were about to, if they hadn’t already done so, send a delegation to London to offer the crown of America to the second son of George III.
The delegates decided to answer every letter asking them about this with the same words: "We cannot tell you what we are doing, but we never once thought of a king."
It was very hot & humid that summer in Philadelphia. It was even worse for the delegates because of the decision to keep their meetings secret. That meant the doors & windows were closed.
The delegates could make no headway in arguing the two plans. Deadlock seemed certain. As a last resort, they decided to appoint a committee of one delegate from each state.
The big hangup was the executive branch.. First, they had to decide if they would establish one. If they established an executive, how many? How long a term? How many terms? What powers should he/they have?
Some delegates said no executive. Some said one. Some wanted multiple executives with each having veto power over the other.
Some said three years. Some said four, some seven, ten, fifteen, even a twenty year term.
How many terms? Some said only one term. Some said reelection.
At one time or another, the delegates voted to have one seven year term with no reelection. Then they voted to have a four year term with one reelection. Then they voted for a three year term with a total of nine years.
How to elect a president? Should the people vote directly? Should the national legislature vote? Should the state legislatures vote?
Eventually, they decided on: How many, how many terms, how long the term?
How to elect? They decided on an indirect system. It would be called the Electoral College. Most of the delegates did not feel that the people were well enough informed of leaders from other states. They also did not trust the common people to make the decision for president.
Therefore, they created the Electoral College system. People would vote for electors from their own state who would then vote for president & vice-president. The electors would meet in their respective state capitals & cast their votes. Each state would have as many electors as they had members of Congress.
Originally, the electors were to vote for two people. The person having the most votes would be president. The one with the second most would be vice-president. If there were a tie, the House of Representatives would vote with each state having one vote and a majority being needed to be chosen. The runner-up would be vice president.
Now, what power to give to the president? Remember there was a great fear ofa president becoming a dictator or king. Therefore, we would think that the framers would severely limit the power of the president. Remember how they limited the powers of state governors. However, they left the powers of the president vague. This was, I think, for two reasons. One was that all knew who would be the first president & they trusted him to shape the office. Secondly, they were smart enough to realize how impossible it is to define leadership. So, why try?
Once the presidency was taken care of all the other pieces fell into place. Remember that the other big disagreement was representation in the national legislature. They had the Virginia Plan & the New Jersey Plan. One called for representation based on population, the other representation based on equal representation per state.
What they decided on seems so natural today. They compromised between the two plans. Have a two house legislature. In the upper house, give each state equal representation. In the lower house, make it dependent on state population. This was called the Great Compromise. The delegates, again not convinced of the common folks’ ability to make decisions, gave the choice of upper house members to the upper house of each state legislature. The people would vote for members of the lower house of each state legislature.
The Constitution has been called a Bundle of Compromises. Some were between big & small states, but not all. Some were between the increasingly commercial northern states & the mostly agricultural southern states. The Constitution gave the Congress the power to levy direct taxes (taxes based on population) With the lower house based on population the Combine this with the fact that representation in the lower house of the national legislature was based on population, the issue of slavgry reared its ugly head.
Southern delegates realized that their representatives would be outnumbered in the House of Representatives; therefore they needed all the representatives they could get. Therefore, they demanded that they be allowed to count their slaves as part of the population for determining representation in the House. Northern delegates said that since the slaves were not recognized as citizens, they should not be counted.
However, the delegates switched positions on the counting of slaves as part of the population for taxation purposes. Southerners said no while northern delegates said yes. What they finally decided was a compromise. They would count each slave as 2/3 of a person for BOTH taxation purposes & for representation. This became known as the Three-fifths Compromise.
Southern delegates were also concerned that if the Congress had the power to regulate foreign & interstate commerce & to make treaties,, a northern majority in Congress might make treaties unfavorable to the south & also might put a tariff on exports.
Therefore, in the Constitution it states that Congress can only tax imports. Treaties will be made by the President but with the advice & consent of the Senate. TO further protect the south, it was put in that the Senate must approve all treaties by a 2/3 majority.
There were other major compromises between the north & the south:
1. Congress could not prohibit the slave trade for twenty years after the ratification of the Constitution.
2. A fugitive slave law would be put in the Constitution.
For the new Constitution to be successful, the states had to accept a new relationship with the proposed central government. It established a federal system to replace the confederation established by the Articles. Under a federal system the functions of government are shared by the central government & the states. The states look after local matters while the central government tended to national affairs. This is much different from a confederation. In a confederation, the member states give the central government little power & keep most of the power for tthemselves. In a confederation, the state is the ultimate source of power.
One of the most important provisions of the new Constitution is the provision which states, "this Constitution and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land."
This means that all laws passed by Congress or treaties made by the President & ratified by the Senate, all decisions made by federal judges, take precedence over state or local laws & court decisions. Local & state judge take oaths to uphold the Constitution of the United States.
The new Constitution was based on two important principles of republican government: John Locke’s idea that government must be based on the consent of the governed & that the power of government must be limited by a written constitution. This the authors made perfectly clear in the first three words of the Constitution, written bigger than any other: We the people.
The Constitution is also based on the idea of separation of powers. This was the authors’ way of protecting the country from tyranny.
In mid-September, 1787, after four long, hot months of long, bitter debate, the delegates finished their work. Thirty-nine of them signed the finished document. Thomas Jefferson, writing from Paris: "this Constitution is the result of the collective wisdom of our country". He was correct. It was a great achievement, providing the young country with a form of government that could be changed without violent revolution & yet meet the needs of future generations.
What the delegates were to learn was that the "struggle for a more perfect union" was just beginning. The hard part was yet to come. The Constitution must now be ratified by conventions in nine states.
Defenders of the Constitution were called Federalists. Opponents were Anti-Federalists. There was a lot of determined opposition & a lot of apathy in the young nation. Debtors, small farmers, unskilled laborers, & state politicians tended to oppose the stronger central government the new Constitution would establish.
Many opposed it because they thought it did not go far enough in protecting the rights of the people. They said they opposed it because there was no Bill of Rights.
Others said the Constitution went too far, that it was too much like that of Britain.
Some said it created a president that had too much power. Many felt as if the United States was going back to the way things were before the Revolution.
The Anti=federalists began their campaign against re3tification in state conventions, in newspapers, in pamphlets & even from the pulpit. Preachers said the Constitution was the work of the devil, that the framers were atheists.
The opponents worked in public & in private. They said that the convention exceeded its authority. "For the sole purpose of revising the Atricles of Confederation".
Anti-federalists raised some strong objections"
1. Why was there no bill of rights. Were the people to have no rights specifically protected by the Constitution?
2. Why, of all the branches of government, did the people get to vote directly only for the House of Representatives?
3. It seemed to many that the Constitution was more interested in protecting property rights than the rights of the people.
4. Opponents said that an indirectly elected President & an indirectly elected Senate would dominate the directly elected House of Representatives.
It was not, as has often been portrayed, a battle of rich against poor & middle classes. There were many on both sides from all geographic areas & from all socio-economic classes. Opposition was widespread, but the opponents were not as well organized as supporters.
The Federalists bombarded the people with arguments in favor of the Constitution in newspapers, speeches & pamphlets.
The most effective argument for ratification appeared first in New York newspapers under the title, The Federalist Papers. They were published under the pseudonym, Publius, but most knew were written by James Madison, Alexander Hamilton & John Jay. They were, and are, a classic on the nature & purpose of constitutions.
Even though the Federalists were better organized & more active, they needed to make compromises to get the Constitution ratified.
Massachusetts was a key state. Old Sam Adams stood in the way of ratification there. His problem was that there was no bill of rights in the Constitution. He said if they could add one, he would throw his support behind ratification. Madison knew that to reopen the convention would invite disaster & would likely unravel everything they had accomplished. He promised Adams that if he threw his support to ratification & it was ratified,, Madison would make it one of the first tasks of the first Congress to add a bill of rights. Adams agreed & Massachusetts ratified.
Small states, for the most part, ratified first. They liked the protection of equal representation in the Senate. Delaware & New Jersey were first to ratify. Pennsylvania became the fifth state but first big state to ratify. When New Hampshire ratified in June, 1788, it became the ninth state to ratify & the requirement was met. The Constitution went into effect in those states. However, two very important states had not yet ratified. New York and Virginia were still debating. The new nation had to have those two states in.
In Virginia, Patrick Henry led the opposition. George Washington, Richard Henry Lee, Madison & George Mason led the forces for ratification.
Near the end of June, 1788, the Virginia convention ratified. When news of this hit the New York convention, it swung the balance & New York ratified, but it was close – 30 to 27.
In September, 1788, the Confederation Congress in its last action authorized the ratifying states to choose presidential electors by the first Wednesday in January, 1789. Two states did not take part in that first presidential election – North Carolina & Rhode Island. North Carolina did not ratify until November, 1789. Rhode Island ratified in May of 1790. We are now ready to begin our experience under the Constitution.