A question frequently arises in disputes about how to interpret the U.S. Constitution: What was the intention of those who framed the document? This question contains an invalid assumption. It assumes that those who drafted the Constitution at the 1787 convention and those involved in the subsequent debates were of one mind and intent.
In the introduction to his anthology The Bill of Rights: Original Meaning and Current Understanding, law professor Eugene W. Hickok, Jr., wrote, “during the summer of 1787 and during the formative years of the early Republic, there was considerable disagreement over the idea of appending a bill of rights to the new Constitution, as there was controversy over the Constitution itself.” Hickok continued, “While it is something of an overstatement to describe the Constitution of 1787 as nothing but the product of political compromise, it is safe to say that the federal character of that Constitution . . . was hammered out through compromise.”
Indeed, some Founding Fathers believed that the Constitutional Convention itself was illegal because it violated the Articles of Confederation, the law of the land. Samuel Chase—a signer of the Declaration of Independence—refused to be a delegate. According to the Articles, the only proper function of the convention was to “amend” the existing compact, not to create a new one. Nevertheless, some delegates clearly wished to establish a new compact.
James Madison, along with other Federalists, hoped to establish a strong central government in order to overcome what he termed “the radical infirmity” of the Articles. The infirmity was that Congress had no power to force individual states to comply with its requests. Without a federal government to collect taxes and to issue a monopoly currency, Madison feared that America would not hold together as a nation. In particular, Congress needed to pay for the American Revolution, which meant honoring a huge foreign debt and redeeming paper certificates that had been issued as soldiers’ pay during the war. But this centralized power violated the Articles of Confederation.
Thus when the Constitutional Convention opened, such giants as the great orator Patrick Henry and Richard Henry Lee—who had asked the Continental Congress to declare independence from Britain—chose to be absent. Rhode Island boycotted the convention altogether. Those who attended found themselves in constant debate over issues such as centralized government versus states’ rights. From the 12 states represented, only 55 of 74 elected delegates actually attended the proceedings and fewer signed the resulting document. The Virginia delegate George Mason said he would rather cut off his hand than affix his signature to it.
Therefore, the first step in answering the question about what intentions underlie the Constitution is to realize that many prominent men expressed their intentions by boycotting the Convention or refusing to sign the resulting document.
The Anti-Federalists—those who opposed the Constitution—argued that it transferred too much power from the states to a federal government. They also objected to the absence of a bill of rights. Others argued against specific terms of the Constitution, for example, its authorization of a standing army in peacetime.
Even some who supported the Constitution did not do so on principle but rather from expediency. As delegate Gunning Bedford declared on July 5, 1787, “The condition of the United States requires that something should be immediately done. It will be better that a defective plan should be adopted, than that none should be recommended.” Perhaps this was the basic intention of most delegates to the convention: to hold America together as a nation. But the issues raised by the convention threatened to tear the nation apart.
Analysis of the Constitutional Convention encounters a severe problem. No transcript exists. Moreover, as a procedural rule, the convention barred the public, thus ensuring that no newspaper accounts exist. The debate must be reconstructed from various delegates’ notes. Of these, Madison’s record is by far the most complete. Yet his account is burdened by two disadvantages. First, as a staunch Federalist, he may well have given short shrift to Anti-Federalists’ arguments. Second, his account was not published until decades later, denying other delegates the opportunity to contradict its substance.
Thus it may not be prudent to assess the intentions of delegates solely on the basis of what was allegedly said during the convention.
Some Compromises of the Constitutional Convention
Madison has been called the “father of the Constitution.” Although his was not the main hand behind the document’s wording, he was the man most responsible for its content. The substance was embodied in what was called the Virginia Plan. On May 29, 1787, Edmund Randolph, governor of Virginia, proposed the plan. Gouverneur Morris of Pennsylvania explained the distinction between the existing federation and the one being proposed: “the former being a mere compact resting on the good faith of the parties; the latter having a compleat and compulsive operation.” The Virginia Plan envisioned a tripartite government: an executive, a judiciary, and a legislature with two houses. The federal government could veto acts of the state legislatures and use force against rebellious states. Advocates of states’ rights balked. Randolph himself admitted that the “strong consolidated union” meant that “the idea of states” would be “nearly annihilated.”
Another major sticking point was the proposed proportional representation of the states in both houses of the legislature. Small states protested against what they viewed as domination by the larger ones; Delaware threatened to withdraw from the convention. On June 29 the small states lost the first battle. The convention established population as the basis for representation in the House of Representatives. The convention verged on dissolution. Luther Martin of Maryland declared, “The States have a right to an equality of representation. This is secured to us by our present articles of confederation; we are in possession of this privilege.” Compromise emerged. Although the House would be proportionally represented, the states would have equal representation in the Senate.
The conflict over representation spilled into another issue: slavery. The North and less populous South were divided on how slaves were to be counted for taxation and proportional representation. The South wanted to increase its representation by fully counting the slaves. The North objected. They compromised. The proposed Constitution stated, “Representatives and direct Taxes shall be apportioned among the several States . . . according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons . . . three-fifths of all other Persons.” The relevant “other persons” were slaves.
The North-South division caused other tensions as well. The North wanted to regulate interstate commerce. The South resisted because its economy depended on the export of raw materials (rice, cotton, and tobacco, for example), which were vulnerable to export taxes. When an import tax on slaves was suggested, the convention erupted. The conflict was resolved by what George Mason called “a bargain.” Congress got the power to regulate commerce, but it could not interfere with the slave trade until 1808. Moreover, fugitive slaves who escaped northward would be returned to their owners.
There was also concern over the presidency. If the national executive was to be vested in one man, it was asked, would this become the “fetus of monarchy”? Again, compromise: the national executive would consist of one man whose power was limited. For instance, the president could appoint federal judges, but Senate approval would be required.
On September 17, the delegates met for the last time to formally sign the Constitution. On September 28, Congress ordered the states to call ratifying conventions to vote on the Constitution. Again, the rebellious Rhode Island declined. Ratification by nine of the twelve remaining states was required for the Constitution to become the law of the land.
Reaction to the Constitution varied from convention to convention. Some states, most notably the smaller ones, ratified with little hesitation. Delaware—the first to ratify on December 7, 1787—did so for utilitarian reasons. It needed the protection of a larger union to survive. Similarly, Georgia was on the brink of warfare both with the Spaniards in Florida and with Indians: it needed union. Connecticut wanted protection against the stiff customs imposed by large neighbors, primarily New York.
In other states vehement debate arose. Here the Anti-Federalist attacks repeated several criticisms: the Constitution lacked a bill of rights; it discriminated against southern states; it weakened state sovereignty. Working-class people feared that the Constitution was an aristocratic document that favored the rich, and they were particularly concerned about the federal government’s right to issue paper money. At the Massachusetts convention, one delegate declared, “These lawyers, and men of learning and moneyed men, that . . . make us poor illiterate people swallow down the pill . . . they will swallow up all us little folks like the great Leviathan; yes, just as the whale swallowed up Jonah!” From Virginia, George Mason concurred. He believed that the federal judiciary would dominate state courts, allowing the rich to oppress the poor. The absence of a bill of rights made this prospect more likely.
The Anti-Federalist leaders did not always speak with a single voice, however. Indeed, the lack of Anti-Federalist cohesion led Madison to write of one state, “There was not a single character capable of uniting their wills or directing their measures . . . They had no plan whatever.”
One Anti-Federalist issue dominated, however—the absence of a bill of rights. At the Constitutional Convention, a bill of rights had not been a topic of much discussion. Most of the delegates believed that individual rights were secured by state constitutions. If state governments were weakened, however, such personal liberties as freedom of speech and trial by jury needed protection from centralized government.
The Federalists considered a bill of rights superfluous or worse. Listing rights could be dangerous because some rights would be overlooked or left out for brevity’s sake. The federal government might violate the unlisted rights with impunity. Alexander Hamilton observed, “why declare that things shall not be done which there is no power to do?” If the federal government had been granted no power to censor speech, why raise the issue?
The Anti-Federalists seemed to hold the upper hand in this argument, yet the Constitution was ratified without a bill of rights. Why did Federalist arguments triumph?
Several factors contributed. One was the great skill with which Federalists such as Madison and Hamilton argued. Consider one example. Anti-Federalists disputed the possibility that a territory as large as the United States could have a representative central government because such a government would necessarily be impersonal, unrepresentative, and dominated by the wealthy. Madison turned this criticism around, claiming that the vastness of America was an argument for a strong republic. He reasoned that a large territory tended to balance out the interest groups that vie for dominance. “The smaller the society,” Madison wrote, “the fewer probably will be the distinct parties and interests composing it; the fewer the distinct parties and interests, the more frequently will a majority be found of the same party and the more easily will they concert and execute their plans of oppression.”
This argument was presented in one of a series of essays written under the pen name of “Publius,” the first of which appeared in late 1787. Published in various New York newspapers, the essays were widely reprinted and exist today under the title The Federalist Papers. Authored by Hamilton, Madison, and John Jay, the articles persuasively critiqued the Articles of Confederation and advocated centralized government.
The Federalists also employed a superior strategy, albeit not always a fair one. The AntiFederalists sought to delay the ratification process so they’d have time to circulate their criticisms of the Constitution to the people. The Federalists had emerged from the closed convention with a distinct advantage. They drew support from towns that tended to have well-circulated newspapers. By contrast, Anti-Federalist support came from rural communities, which were isolated. Moreover, the ratifying conventions were usually held in town where the better-organized and better-funded Federalists could speed the process through.
Moreover Anti-Federalists claimed that their mail, including newspapers, was being tampered with by Federalist postmasters in an attempt to silence them. Some Federalists leveled the same accusation.
At one point the Federalists made a brilliant strategic move. After the first few states had ratified, the Anti-Federalists began to call for ratification with attached amendments. Amendments might delay ratification or render it invalid. In response, the Federalists urged the attachment of “suggested” amendments. In Massachusetts, John Hancock called this the “conciliatory proposition.” In vain, the Anti-Federalists cried out that the amendments would not be binding on the first Congress. The conciliatory proposition induced Massachusetts to ratify with suggested amendments, but even then the vote was 187 to 168.
Six states had ratified; three more were needed. The most important Anti-Federalist state was Virginia, to which other states now looked for leadership. Virginia’s ratifying convention should have been a touchstone if only because many of America’s most prominent leaders were Virginians. On the Anti-Federalist side were George Mason, Patrick Henry, and Richard Henry Lee. The Federalists were equally well represented by such prominent men as John Marshall, who later became chief justice of the Supreme Court.
The convention occurred relatively late in the ratification process. On the second day of debate, news of South Carolina’s ratification (the eighth state) reached Virginia. Staunch Anti-Federalists played their ace card—southern fear of northern domination. But by then, many of their fellows had decided to ratify. John Randolph explained, “The accession of eight states reduced our deliberations to the single question of Union or no Union.” On June 26, Virginia ratified 89 to 79. Like South Carolina and New Hampshire before her, Virginia attached suggested amendments. New York followed suit.
On April 30, 1789, George Washington, having run unopposed, became the first president of the United States. But what of North Carolina and Rhode Island, the two states remaining outside the Union?
North Carolina had voted earlier to wait for a second constitutional convention that would consider suggested amendments. In face of the inevitable it now became the 12th state to ratify.
Rhode Island stood alone. More than any other state, it would have felt the keen impact of federal tariffs. Moreover, it was not eager to relinquish the right to issue currency. Each township had been polled and ratification had been rejected, 28 to 1. Then, in early 1790, the new Senate severed all commercial relations and hinted at a willingness to use force against the rebellious state. Rhode Island ratified by a vote of 34 to 32.
The ratification debates revealed deep divisions among and within the states on issues ranging from freedom of religion to a standing army. It dramatized the fact that no single intention lay beneath the surface of any particular passage of the Constitution. The Constitution—including the Bill of Rights—was shaped by its critics as well as by its advocates, and the intentions behind it varied widely. Rather than search for any one interpretation of the Constitution, therefore, it is productive to explore the compromises reflected in the document. To understand the compromises, however, it is necessary to weigh anew both sides of the argument.
More fundamentally, one must understand the political circumstances that gave rise to the specific wording of the Constitution. After all, the intentions of the framers were largely a reaction to events surrounding the American Revolution. For example, the Constitution’s prohibition against a standing army makes no sense until the abuses of the British army against the colonists are taken into account. Thus better questions to ask regarding any passage of the Constitution may be, Which political situation was it meant to prevent or perpetuate? And why?