Conceived in Liberty, Volume 5: The New Republic: 1784–1791

The Constitution was unquestionably a high-nationalist document, creating what Madison once referred to as a “high mounted government.” Not only were the essential lines of the nationalistic Virginia Plan Report carried out in the Constitution, but the later changes made were preponderantly in a nationalist direction. Of the fundamental changes, only the equality of states in the Senate and their election by state legislatures, the former bitterly protested by the determined large state nationalists, was a concession to the opposition. In contrast, on the nationalist side congressional selection of the president was changed to chosen by popular election, admission of new states was made purely arbitrary, and the amendment power was transferred from the states to the Congress. While it is true that the general congressional veto over state laws and the vague broad grant of powers in the original Virginia Plan were whittled down to a list of enumerated powers, enough loopholes existed in the enumerated list: the national supremacy clause; the dominance of the federal judiciary; the virtually unlimited power to tax, raise armies and navies, make war, and regulate commerce; the necessary and proper clause; and the powerful general welfare loophole; all allowed the virtually absolute supremacy of the central government. While libertarian restraints were placed on state powers, no bill of rights existed to check the federal government. And slavery, albeit not explicitly named in the document, was cemented into American society by the nationalists’ twenty-year guarantee of the slave trade, in the three-fifths clause “representing” slaves in Congress, and in the compulsory fugitive slave clause. The northern nationalists were willing, if shamefacedly, to agree in exchange for the right to regulate commerce and thus grant themselves commercial privileges, while the southern nationalists were willing to concede regulation of commerce in confident expectation of an early slave-state preponderance in Congress for the South and Southwest. Both wings of nationalists looked forward to a central government that could pursue an aggressive foreign policy, either on behalf of commercial interests to pry open the West Indies trade, or on behalf of interests in the western lands to push Britain out of the Northwest or Spain out of the southwestern Mississippi.

The first step in the ratification of the Constitution was for the delegates to sign, but here the new plan ran into trouble from the start. Of the fifty-five delegates who had attended the convention, fourteen had left before the end, most of them in disgust at the nationalism of the developing Constitution. John Lansing and Robert Yates of New York, and Luther Martin of Maryland, the only major delegates who could be considered hardcore liberals, were prominent among these withdrawals. No one could vote or sign from New York since it lacked a quorum for the last half of the convention, but Alexander Hamilton had the presumption to sign as an individual. At the last, three prominent delegates in attendance refused to sign: Edmund Randolph, Elbridge Gerry, and George Mason, all moderates. One delegate, William Blount of North Carolina, was only persuaded to sign by the convention’s adopting of the fiction that the delegates signed as “states” rather than “individuals.”

The fullest explanation of the opposition came from George Mason: the calamitous absence of a bill of rights; inadequate representation in the House; a great deal of power in the oligarchical Senate; the absolute supremacy of the national over the state judiciaries, thereby “enabling the rich to oppress and ruin the poor”; the absence of a Council of Revision to check the presidential power; the ease of passing commercial navigation laws that could ruin the South for the benefit of northern and eastern shippers; the vague and enormous power implicitly given to the government; and the compromise over the slave trade.

Whether or not the Constitution can be seen as a nationalist document may be gauged from the attitude of the wildest ultra-nationalist of them all, Alexander Hamilton. While Hamilton was disappointed at not having a pure and naked American version of a British monarchy, he saw no choice but to support the Constitution wholeheartedly. “Is it possible to deliberate,” he added, “between anarchy and convulsion on one side, and the chances of good to be expected from this plan on the other?” In a somewhat similar vein, arch-nationalist James Madison was not content with the score of victories he secured and was upset at not getting the full nationalist loaf, particularly the federal veto over state legislation. But like a dutiful Federalist, he too would work hard for ratification in the coming months.

The upshot was that only thirty-eight of the original fifty-five delegates signed the Constitution, though they could unite a quorum of eleven states; and if we consider that the total number of delegates chosen was seventy-four, this meant that barely half of the delegates originally chosen signed the Constitution. When looking toward the prospects for ratification, the behavior of the delegates made clear that the big hurdle states for the Constitution would be Rhode Island, which did not even send delegates to the convention, Massachusetts, where only two of the four delegates had signed; New York, not even represented in the later parts of the convention; North Carolina, the majority of whose people were opposed to the Constitution; and Virginia, the bulk of whose eminent men were now opposed to the Constitution. With reasonable luck for the Antifederalists, all five of these might well have rejected the Constitution.

The first step for the Constitution was the old Confederation Congress, to which the convention submitted their document. Congress should have been furious, for not only did the convention violate its explicit instructions, but it created a revolutionary new scheme of government that violated the basic principles of the Articles and did not even require the approval of Congress. Any self-respecting Congress would not only have not transmitted the Constitution to the states, but it would have denounced the new Constitution in the severest terms.

The Constitution reached Congress on September 20, and Congress quickly proposed to consider this crucial issue. Inadvertently taking the lead of the Antifederalist forces (for now the country was to be divided between the nationalists—or “Federalists,” as they fraudulently called themselves for tactical effect—and the “Antifederalists”), was Richard Henry Lee of Virginia, still one of the nation’s leading liberals. Lee bitterly denounced the nationalists as a “coalition of Monarchy Men, Military Men, Aristocrats, and Drones whose noise, imprudence & zeal exceeds all belief.” The Federalist cause was spearheaded by conservative delegates who were members of Congress; leading them were Madison, Gorham, and King.

Richard Henry Lee vainly proposed various sharp amendments to the Constitution along the lines of his friend George Mason. The changes included a Council of Revision, trials by jury in civil cases, and an increase in the majority required to pass laws. Above all, he eloquently urged a bill of rights, for history had proven that “the most express declarations and reservations are necessary to protect the just rights and liberty of Mankind from the silent, powerful and ever active conspiracy of those who govern.”

The liberals, led by Lee, Nathan Dane of Massachusetts, and Melancton Smith of New York, proposed that Congress submit this illegal document to the respective state governors and legislatures. The nationalists, on the other hand, urged that Congress submit the Constitution to state conventions with its approval. In order to achieve unanimity in Congress, a compromise resolution was passed without dissent on September 28, swiftly transmitting the Constitution to state legislatures and their conventions without approving or endorsing the plan, but mendaciously using the word “unanimously” to give the appearance of congressional approval of the document, when in reality it referred to just the transmission of the document. In addition, it must be noted that Rhode Island, strongly opposed to the Constitution, had no delegates on the congressional floor. With this abdication of responsibility, the Constitution was past its first hurdle. Its fate was now up to the several states.1

• 1[Editor’s footnote] Miller, Alexander Hamilton and the Growth of the New Nation, pp. 182–83; McDonald, E Pluribus Unum, pp. 306–07; Burnett, The Continental Congress, pp. 694–702.