The road from independence to a constitutional government
 

The Constitution of the United States (1787) helped create modern democracies worldwide. (National Archives and Records Administration)
 

On May 15, 1776, the convention meeting in Williamsburg and acting as Virginia's de facto governing body instructed that colony's delegates at the continental congress in Philadelphia to introduce a resolution declaring "the United Colonies free and independent states." That Declaration of Independence from Great Britain, adopted by the Continental Congress soon thereafter on July 4, set the former colonies on an irrevocable course that created the United States of America. But the creation of the United States of America did not occur all at once. Eleven years later, another group of delegates journeyed to Philadelphia to write a constitution for the new nation, a constitution that still defines its law and character.

The road from independence to constitutional government was one of the great journeys in the history of democratic government, a road characterized by experiment, by mistakes, but ultimately producing surely the most influential national constitution ever written. Even before the break with Great Britain, the American colonies saw to the nurturing of their future constitutional culture. The lower houses of the colonial assemblies were the most democratic bodies in the English-speaking world, and dialogue with the mother country sharpened the Americans' sense of constitutional issues. For a decade before the outbreak of revolution, disputes over taxes, trials without juries, and other points of contention led to an outpouring of pamphlets, tracts, and resolutions – all making essentially a constitutional case against British policy.

Declaring independence, the founders of American democracy understood, entailed establishing the intellectual basis for self-government. On the same day that the Williamsburg convention spoke for independence, the delegates set to work on a declaration of rights and on a constitution for Virginia. Virginia's 1776 Declaration of Rights was soon emulated in other states and even influenced France's Declaration of the Rights of Man and the Citizen (1789). The early American state constitutions – every state adopted one – varied in their specifics (for example, some created a unicameral legislature, others opted for bicameralism). But they shared a basic commitment to republican principles, principles that then seemed truly revolutionary in most parts of the world – consent of the governed, limited government, inherent rights, and popular control of government.

These early experiments in republican government carried significant flaws. Recalling their experience as North American colonists with British royal power (including colonial governors and courts), drafters of the initial state constitutions reposed excessive trust in legislatures. Checks and balances among branches of government were more theory than reality. Governors were typically elected by (and thus dependent on) the legislative branches, and judicial power was as yet largely embryonic. Another flaw in the original design was that constitutions were drafted by bodies that also served as legislative bodies, thus blurring the line between fundamental law and ordinary law. However, in 1780 Massachusetts took a great step forward in constitutional design when its people elected a convention to write a constitution which, in turn, was voted on in referendum.

The Articles of Confederation
Even more daunting than adopting state constitutions was the framing of a government for the United States. When Great Britain finally concluded a peace treaty in 1783, letting the American colonies go, the nation was composed of 13 state governments. Early nationalist sentiments soon collided with parochial interests, with suspicions of how central power might be used to the disadvantage of individual states. Drafting of a structure to link the states had begun in 1776, but it was 1778 before the Articles of Confederation were adopted and 1781 before all the states had agreed to that document. Distrust of central power was manifest in Article II, which declared, "Each State retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled."

The Articles created a central government that proved feeble and ineffective. In Congress, each state, regardless of population, had an equal vote. The state legislatures were allowed to decide how delegates to Congress were to be appointed, and a state could recall and replace its representatives at any time for whatever reason it chose. Congress lacked the powers essential to accomplishing national policies. It had no taxing power, having to rely instead on the states' willingness to provide funds – and the states often proved unwilling. The vote of nine of the 13 states was required for Congress to exercise its powers, such as making treaties or borrowing money. Amendments to the Articles required the assent of all the states, giving every state a liberum veto, that is, sufficient veto power to paralyze democratic process. Tiny Rhode Island could thus thwart the will of the other 12 states – as it did in vetoing a proposal to give Congress the power to levy duties on imports.

In particular, commercial rivalries spawned trade discrimination among the states. Landlocked states found themselves at a notable disadvantage, dependent upon states with good seaports. James Madison likened New Jersey, situated between New York and Philadelphia, to "a cask tapped at both ends," and North Carolina, between the deep harbors of Hampton Roads and Charleston, to "a patient bleeding at both arms." The feebleness of the central government was further highlighted by the lack of executive or judicial power to deal with domestic disorder. For example, beginning in 1786, during a period of economic depression, mobs of impoverished farmers in western Massachusetts prevented the courts from functioning and ordering foreclosures. Daniel Shays, a farmer and former revolutionary officer, led a force attempting to seize the arsenal at Springfield but was repulsed. In general, perhaps no flaw in the Articles was as glaring as the inability of the central government to act directly upon individuals, rather than hope for the states to act.

In 1785, Virginia and Maryland appointed commissioners to settle disputes over uses of the Chesapeake Bay and its tributary rivers. These delegates then called for the states to be invited to discuss whether a more "uniform system" of trade regulation might be in their "common interest." Congress responded by calling a meeting at Annapolis in 1786. Only five states attended that meeting, and its members recommended that there should be a constitutional convention in Philadelphia to consider what should be done "to render the constitution of the federal government adequate to the exigencies of the Union. ..." Virginia took the lead in appointing a delegation, and other states followed suit, forcing Congress's hand. Finally, in February 1787, Congress endorsed the calling of a convention. Significantly, however, Congress's resolution said that the convention should assemble "for the sole and express purpose of revising the Articles of Confederation" and reporting to Congress revisions which would become effective only when agreed to in Congress and confirmed by the states.

James Madison and the Virginia Plan
In spite of the innate conservatism of the states, however, once assembled, the convention proved decisive. A remarkable group of 55 men assembled in Philadelphia in May 1787. Their grasp of issues had been honed by wide experience in public life – over half had served in Congress, seven had been state governors, and a number had been involved in writing state constitutions. George Washington, the general from Virginia who had led the war against the British, brought special prestige to the gathering when he agreed to serve as its presiding officer. Other notables included Alexander Hamilton (New York), Benjamin Franklin (Pennsylvania), and James Wilson (Pennsylvania). Perhaps the most conspicuous absence was Thomas Jefferson, who had drafted the Declaration of Independence but who was now serving as the United States' minister to Paris.

It soon became apparent that the most important and respected voice at the convention was that of James Madison, of Virginia. Active in Virginia politics, Madison had acquired a national reputation as a member of the Continental Congress, where he was instrumental in bringing about Virginia's cession of its claim to western territories, creating a national domain. Madison became increasingly convinced that the liberty of Americans depended on the Union's being sufficiently strong to defend them from foreign predators and, at home, to offset the excesses of popular government in the individual states. No one came to Philadelphia better prepared. He had taken the lead in seeing that the nation's best talent was at the convention. Moreover, in the weeks before the meeting, he had read deeply in the experiences of ancient and modern confederacies and had written a memorandum on the "Vices of the Political System of the United States." First to arrive in Philadelphia, Madison persuaded Virginia's delegation to propose a plan which, far from simply revising the Articles, would replace them with a national government of sweeping powers. Deriving its authority from the people, Congress would have the power "to legislate in all cases to which the separate States are incompetent, or in which the harmony of the United States may be interrupted by the exercise of individual Legislation." Further departing from the Articles, the Virginia Plan called for the new Constitution to be ratified, not by the state legislatures, but by conventions elected by the people of the several states.

Resolving themselves into a Committee of the Whole, the delegates debated the merits of the Virginia Plan. Those urging an expansion of national powers, led by Madison and James Wilson, thought it essential to scrap the unworkable system of a central government attempting to effect policy through the states. Instead, they asserted, the national government must operate directly on individuals and, through its executive and judicial branches, be able to enforce its laws and decrees. Principles of individual equality, moreover, called for representation in Congress to be based on population, thus abandoning parity among the states. Madison and his allies were hoping to build upon a sense, widely held among the delegates, that ad hoc or piecemeal reform of the existing system would no longer suffice.

Radical reform was, however, too bold for many delegates from the smaller states. While they might concede the need for enlarging the powers of the central government, including giving it the power to raise its own revenue and to regulate commerce, the smaller states feared domination by the large states. The central question was that of representation. New Jersey's William Paterson insisted that his state could "never confederate on the plan before the committee." With Madison and Wilson continuing to insist on a nationalist plan, it seemed possible that the convention delegates, whatever their agreement on other matters, might founder on the issue of representation.

The Great Compromise and Other Compromises
On June 13, the Virginia Plan, with some revisions, was reported out of the Committee of the Whole. On June 15, Paterson, speaking for the plan's opponents, introduced the New Jersey Plan. Under this plan, each state would have an equal vote in a unicameral Congress. Resolving themselves once again into a Committee of the Whole, the delegates debated the merits of the Virginia and New Jersey Plans. On June 19, the committee voted, seven states to three (with Maryland divided), to stay with the Virginia Plan. The matter remained unresolved, with votes settling into a pattern of six states (Massachusetts, Pennsylvania, Virginia, the Carolinas, and Georgia) against Connecticut, New York, New Jersey, and Delaware, with Maryland divided. In late June, Connecticut's Oliver Ellsworth proposed a compromise – population to be the basis for representation in one house, the states to have equality in the other.

In early July, the convention voted on Connecticut's proposal for state equality in the senate, but the motion failed on an equal division (with Georgia divided). The convention appeared to have arrived at deadlock. Looking for a way out of the predicament, South Carolina's Charles C. Pinckney asked for the appointment of a grand committee. That committee then ratified what has come to be called the Great Compromise – proportional representation in the lower house, states' equality in the upper house. Even while the larger states preferred representation based on population as the basic rule, some of their delegates preferred compromise to risking a walkout by small state delegates. Virginia's George Mason said that he would "rather bury his bones" in Philadelphia than see the convention dissolved without agreement upon a plan of government. On July 16, the convention voted for the compromise, five states in favor, four opposed, one divided (with New York not present).

Notwithstanding grumbling by some delegates from the larger states, the most contentious issue had now been resolved, and the convention could move on to other questions. Election of the executive proved a thorny issue. The Virginia Plan had provided for an executive elected by the legislature; this, however, would create a dependent executive branch – a defect of many of the state constitutions. Few delegates were so bold as to suppose that direct election by the people was a wise move. Ultimately, the convention opted for a device – an awkward one to the modern mind – of having an electoral college choose the president. Each state was entitled, by whatever method it pleased, to select electors equal in number to the number of that state's senators and representatives. The electors would meet in their respective states and vote for the president and vice president. The subsequent rise of political parties, however, has ended the framers' notion that electors would actually deliberate on their choices for national leadership.

On July 24, the convention appointed five members to a Committee of Detail, whose job it was to draft an actual constitution embodying the fundamental principles thus far approved by the whole body. The committee's members seem to have assumed that they were at liberty to make substantive changes of their own. The most important of these was, in place of a general statement of Congress's powers, a clear enumeration of its powers. Leading the list were the power to tax and the power to regulate interstate and foreign commerce – two of the basic reasons that had brought the delegates to Philadelphia in the first place.

Sectional differences surfaced during the convention's latter weeks. Southern states, dependent on the export of agricultural commodities, wanted to forbid Congress's taxing exports, and they wanted to protect slavery and the slave trade. In late August, the convention agreed to a ban on taxes on exports and a prohibition on interference with the slave trade until the year 1808. Slavery was the unwelcome guest at the convention's table. Nowhere does the Constitution use the word "slave" or "slavery." In language intended to compromise competing southern and northern views on representation, the convention decided that, in apportioning representatives, to the number of "free Persons" should be added three-fifths of "all other Persons" – that is, slaves. Some of the delegates thought slavery a blot on the nation's moral conscience, but they concluded, reluctantly, that a stronger stand on slavery would mean rejection of the proposed Constitution in the southern states and thus the prospect of the Union's dissolution. How to resolve the burning issue of slavery was thus postponed, to be settled decades later by civil war and reconstruction.

On September 8, a Committee on Style was appointed to polish the Constitution's language and to arrange its articles. When that committee reported, George Mason, the author of Virginia's 1776 Declaration of Rights, argued that the federal document should also have a bill of rights that would specify and protect the rights of individual citizens. Others argued, however, that nothing in the Constitution would infringe the rights guaranteed in the state constitutions. Mason's proposal was rejected, although it would be revived during the ratification debates.

The convention was moving to its conclusion. On September 17, Benjamin Franklin, at age 81 the convention's patriarch, pleaded with anyone who had some reservations about the meeting's product to "doubt a little of his own infallibility." Looking ahead to the ratification process, the Constitution's proponents wanted a unanimous result. Of the 42 members (of the original 55) still present on September 17, all but three signed the final document. As representatives from each state had concurred in the result, Gouverneur Morris devised the formula "Done in Convention by the Unanimous Consent of the States present" on that date.

How the Federalist Papers Persuaded a Nation
Following the course set out in the Virginia Plan, the Philadelphia convention proposed having the people elect state conventions to pass upon the proposed Constitution. After some hesitation, the expiring Continental Congress forwarded the Constitution to the states for their approval. Once again, as before and during the 1787 convention, Madison took the leading role. Knowing that ratification in Pennsylvania, Massachusetts, and Virginia was critical, Madison helped orchestrate the convening of the state meetings. Several small states, Delaware leading the way, acted quickly, but, as time passed, opponents – known as the anti-Federalists – began to mount their own campaign. Chief among their complaints were the failure to include a bill of rights and the fear that a "consolidated" government would swallow up the states. In carrying Massachusetts, the Federalists acceded to recommendations for amendments which could be added after ratification was complete.

New York seemed especially fertile ground for the anti-Federalists. Madison, Hamilton, and John Jay wrote a series of essays, published in New York newspapers, making the case for ratification. These essays, subsequently collected and published as the famous Federalist Papers, stand as the classic exposition of the foundations of constitutional government in the United States. In Virginia, Madison, joined by John Marshall and Edmund Randolph, had to fend off a sharp attack on the new Constitution draft led by Patrick Henry and George Mason. The result there was a close one, 89-79. New York, where Governor George Clinton and his allies bitterly opposed the Constitution, ratified by an even closer vote, 30-27. In eight months, all but two states had approved the Constitution. Eventually North Carolina (in 1789) and even Rhode Island (in 1790) ratified. In the meantime, in September 1788, the Continental Congress resolved that the new Constitution should be put into effect. In January 1789, the first presidential electors met in the several states, and their unanimous choice for president was George Washington. In April 1789, Washington was sworn in as the first president of the United States.

Implicit in the Federalists' campaign for the Constitution was an understanding that a bill of rights – provisions clarifying the rights of individuals in the new nation – would be added when the new government got under way. As a member of the House of Representatives in the first Congress, Madison moved to redeem that implicit pledge by proposing a list of amendments to be submitted to the states. Sifting the various proposals which had come out of the ratifying conventions, Madison produced the amendments which, as ratified, became the Constitution's first 10 amendments – what we call the Bill of Rights. Chief among these are protections for free speech and press, freedom of religion, guarantees of fairness in criminal trials, and the admonition that the listing of specific rights was not to be read as precluding the existence of other rights retained by the people – a reflection of "higher law" thinking, which, in the 18th century, implied that people had certain "natural" rights.

An Adaptable Document
The Constitution's influence was immediately felt beyond the borders of the United States. The adoption of a written constitution became intrinsically identified with aspirations to self-government. On May 3, 1791, Poland produced Europe's first written constitution, followed soon thereafter by France. Not surprisingly the American experience was often cited in other countries' debates on the drafting of their own constitutions. In Germany, for example, the delegates who met at Frankfurt's Paulskirche in 1848-49 frequently invoked American ideas in shaping their proposed constitution. No one, in France, Germany, or elsewhere, supposed, of course, that one should simply copy the American model. Any constitution, to be viable, must be grounded in a country's own history, culture, and traditions. But the American Constitution, especially as implemented with key interpretations by the courts over more than two centuries, has undoubtedly helped frame debate over fundamental laws in other places.

What contributions did the Philadelphia delegates, and those who have followed after, make to constitutional democracy at home and abroad? Among those contributions are the following:

1. The Constitution, with its explicit reference to its being ordained by "We the People," stands for government based on popular consent.

2. The Constitution declares that it, and laws enacted "in Pursuance thereof," shall be the "supreme Law of the Land." Implemented by judicial review – the courts' power to invalidate laws found to be in conflict with the Constitution – this principle ensures that constitutional guarantees protect minority rights and liberty even against democratically elected majorities.

3. The Constitution's text – and the debates over its drafting – remind us that institution and structure are fundamental to balancing society's need for order with individual liberty. Limited government finds handmaidens in Madisonian concepts such as separation of powers and checks and balances – that is, the apportionment of real power and authority among the executive, the legislative, and judicial branches of government.

4. Partly through practical compromise, the Constitution aims at creating a central government with sufficient energy, while preserving citizens' ability to speak to local issues at the local level. Federalism in its various forms (such as devolution) – that is, the retention of viable state and local governments as well as the structure of a federal government – has proved increasingly attractive as a way of balancing national and local needs in many nations.

Various reasons account for the success of the 1787 convention. Disagreeing on some important issues, the delegates nonetheless largely shared a sense of common purpose. They proved able to rise above parochial interests to serve the greater good. Leadership proved critical. Madison, going into the convention with nationalist goals, was willing to accommodate himself to the convention's result and argue forcefully for the partly national, partly federal arrangement.

Britain's Prime Minister William Gladstone has been quoted as calling the Constitution "the most wonderful work ever struck off at a given time by the brain and purpose of man." That encomium may be a bit rococo for modern tastes, but there is little doubt that the Philadelphia delegates produced one of history's most durable and influential documents. It has proved, as John Marshall, the nation's third chief justice, urged, adaptable to the great crises of a great nation. Scholars sometimes speak of "constitutional moments" – those catalytic events which frame the fundamental contours of a polity. If there are such things as "constitutional moments," then the 1787 convention was surely one of them.