Charles A. Beard 31

3 Framing the Constitution

Charles A. Beard

As Blackstone* shows by happy il lustration the reason and spirit of a law are to be understood only by an inquiry into the circumstances of its enactment. The underly­ing purposes of the Const i tut ion [of the U n i t e d States], therefore, are to be revealed only by a study of the conditions and events w h i c h led to its formation and adoption.

A t the outset i t must be remembered that there were two great parties at the time of the adoption of the Const i tut ion—one laying emphasis o n strength and ef­ficiency i n government and the other o n its popular aspects. Quite naturally the men who led i n stirring up the revolt against Gteat Br i ta in and i n keeping the f ight­ing temper of the Revolutionists at the proper heat wete the boldest and most radi­cal thinkers—men like Samuel Adams, Thomas Paine, Patrick Henry, and Thomas Jefferson. They were not, generally speaking, men of large property interests ot of much practical business experience. I n a t ime of disorder, they could consistently lay more stress upon personal liberty than upon social control ; and they pushed to the extreme limits those doctrines of individual rights w h i c h had been evolved i n England during the struggles of the small landed proprietors and commercial classes against royal prerogative, and w h i c h corresponded to the economic conditions pre­vail ing i n America at the close of the eighteenth century. They associated strong government w i t h monarchy, and came to believe that the best pol i t ical system was one w h i c h governed least. A majority of the radicals viewed al l government, espe­cially if highly centralized, as a species of evi l , tolerable only because necessary and always to be kept down to an irreducible m i n i m u m by a jealous vigilance.

Jefferson put the doctrine i n concrete form when he declared that he preferred newspapers wi thout government to government w i t h o u t newspapets. The Declara­t ion of Independence, the first state Constitutions, and the Articles of Confedera­t i o n bote the impress of this philosophy. I n their anxiety to defend the individual against all federal interference and to preserve to the states a latge sphere of local

'Compiler's note: Blackstone, Sir William (1723-1780). Distinguished commentator on the laws of England, judge, and teacher.

32 Constitutional Government

autonomy, these Revolutionists had set up a system too weak to accomplish the ac­cepted objects of government; namely, nat ional defense, the protection of property, and the advancement of commerce. They were not unaware of the character of their handiwork, but they believed w i t h Jefferson that "man was a rational animal endowed by nature w i t h rights and w i t h an innate sense of justice and that he could be restrained from wrong and protected i n r ight by moderate powers confided to persons of his o w n choice." Occasional tiots and disorders, they held, were prefer­able to too much government.

The new Amer ican pol i t ical system based o n these doctrines had scarcely gone into effect befote i t began to incur opposition f rom many sources. The close of the Revolutionary struggle removed the prime cause for radical agitation and brought a new group of thinkers in to prominence. W h e n independence had been gained, the practical work to be done was the maintenance of social order, the payment of the public debt, the provision of a sound financial system, and the establishment of conditions favorable to the development of the economic resources of the new country. T h e men who were principally concerned i n this work of peaceful enter­prise were not the philosophers, but men of business and property and the holders of public securities. For the most part they had had no quarrel w i t h the system of class rule and the strong centralization of government w h i c h existed i n England. I t was o n the question of policy, not of governmental structure, that they had broken w i t h the Brit ish authorities. By no means al l of them, i n fact, had even resisted the policy of the mother country, for w i t h i n the ranks of the conservatives were large numbers of Loyalists w h o had remained i n America , and, as was to have been ex­pected, cherished a bitter feeling against the Revolutionists, especially the radical section w h i c h had been boldest i n denouncing the English system root and btanch. I n other words, after the heat and excitement of the W a r of Independence were over and the new government, state and national , was tested by the ordinary expe­riences of traders, financiers, and manufacturers, i t was found inadequate, and these groups accordingly grew more and more determined to reconstruct the poli t ical sys­tem i n such a fashion as to make i t subserve their permanent interests.

Under the state constitutions and the Articles of Confederation established during the Revolut ion, every powerful economic class i n the nat ion suffered either immediate losses or f rom impediments placed i n the way of the development of their enterprises. The holders of the securities of the Confederate government did not receive the interest o n their loans. Those who owned Western lands or looked w i t h longing eyes upon the r i ch opportunities for speculation there chaffed at the weakness of the government and its delays i n establishing order on the frontiers. Traders and commercial men found their plans for commerce o n a national scale impeded by local interference w i t h interstate commerce. The currency of the states and the nat ion was hopelessly muddled. Creditors everywhere were angry about the depreciated paper money w h i c h the agrarians had made and were attempting to force upon those f rom w h o m they had borrowed specie. I n short, i t was a war be­tween business and populism. Under the Articles of Confederation populism had a free hand, for majorities i n the state legislatures were omnipotent . Anyone who reads the economic history of the t ime w i l l see why the solid consetvative interests

Charles A . Beard 33

of the country were weary of talk about the "rights of the people" and bent upon es­tablishing f i r m guarantees for the rights of property.

The Congress of the Confederation was not long i n discovering the true char­acter of the futile authority w h i c h the Articles had conferred upon i t . The necessity for new sources of revenue became apparent even while the struggle for indepen­dence was yet undecided, and, i n 1781, Congress carried a resolution to the effect that i t should be authorized to lay a duty of five percent o n certain goods. This mod­erate proposition was defeated because Rhode Island tejected i t o n the grounds that "she regarded i t the most precious jewel of sovereignty that no state shall be called upon to open its purse but by the authority of the state and by her o w n officers." T w o years later Congress prepared another amendment to the Articles providing for certain import duties, the receipts f rom which , collected by state officers, were to be applied to the payment of the public debt; but three years after the introduct ion of the measure, four states, including N e w York, s t i l l held out against its ratifica­t ion , and the project was allowed to drop. A t last, i n 1786, Congress i n a resolution declared that the requisitions for the last eight years had been so irregular i n thei t operation, so uncertain i n their collect ion, and so evidently unproductive, that a re­liance on them i n the future would be no less dishonorable to the undetstandings of those who entertained i t than i t would be dangerous to the welfare and peace of the U n i o n . Congress, thereupon, solemnly added that i t had become its duty " to declare most explicit ly that the crisis had arrived when the people of the U n i t e d States, by whose w i l l and for whose benefit the federal government was instituted, must de­cide whether they w i l l support their rank as a nat ion by mainta ining the public faith at home and abroad, or whether for the want of a t imely exertion i n establish­ing a general review and thereby giving strength to the Confederacy, they w i l l haz­ard not only the existence of the U n i o n but those great and invaluable privileges for which they have so arduously and so honorably contended."

I n fact, the Articles of Confederation had hardly gone into effect before the leading citizens also began to feel that the powers of Congress were whol ly inade­quate. I n 1780, even before their adoption, Alexander H a m i l t o n proposed a general convention to frame a new const i tut ion, and f rom that t ime forward he labored w i t h remarkable zeal and wisdom to extend and popularize the idea of a strong na­t ional government. T w o years later, the Assembly of the State of N e w York recom­mended a convention to revise the Articles and inctease the power of Congress. I n 1783, Washington, i n a circular letter to the governors, urged that i t was indispens­able to the happiness of the individual states that there should be lodged some­where a supreme power to tegulate and govern the general concerns of the confed­eration. Shortly afterward (1785), Governor Bowdoin, of Massachusetts, suggested to his state legislature the advisability of cal l ing a national assembly to settle upon and define the powers of Congress; and the legislature resolved that the govern­ment under the Articles of Confederation was inadequate and should be reformed; but the resolution was never laid before Congress.

I n January, 1786, Virginia invi ted all the other states to send delegates to a con­vention at Annapolis to consider the question of duties o n imports and commerce i n general. W h e n this convention assembled i n 1786, delegates from only five states

34 Constitutional Government

were present, and they were disheartened at the l imitations on theit powers and the lack of interest the other states had shown i n the project. W i t h chatacteristic fore­sight, however, Alexander H a m i l t o n seized the occasion to secure the adoption of a recommendation advising the states to choose representatives for another conven­t i o n to meet i n Philadelphia the fol lowing year " to consider the Articles of Confed­eration and to propose such changes therein as might render them adequate to the exigencies of the u n i o n . " This recommendation was cautiously worded, for H a m i l t o n did not want to raise any unnecessary alarm. He doubtless believed that a complete revolution i n the old system was desirable, but he knew that, i n the existing state of popular temper, i t was not expedient to announce his complete program. Accord­ingly no general reconstruction of the poli t ical system was suggested; the Articles of Confedetation were merely to be "revised"; and the amendments were to be ap­proved by the state legislatures as provided by that instrument.

The proposal of the Annapol is convent ion was transmitted to the state legisla­tures and laid before Congress. Congress thereupon resolved i n February, 1787, that a convent ion should be held for the sole and express purpose of revising the A r t i ­cles of Confederation and reporting to itself and the legislatures of the several states such alterations and provisions as would when agreed to by Congress and confirmed by the states tendet the federal const i tut ion adequate to the exigencies of govern­ment and the pteservation of the union .

I n pursuance of this call , delegates to the new convention were chosen by the legislatures of the states or by the governors i n conformity to authority conferred by the legislative assemblies.1 T h e delegates were given instructions of a genetal natute by their respective states, none of w h i c h , apparently, contemplated any very far-reaching changes. I n fact, almost al l of them expressly l imited theit teptesentatives to a mere revision of the Att ic les of Confederation. For example, Connecticut au­thorized her delegates to represent and confer for the purpose mentioned i n the res­o l u t i o n of Congress and to discuss such measures "agreeable to the general princi ­ples of Republican government" as they should t h i n k proper to tender the U n i o n adequate. Delaware, however, went so far as to provide that none of the proposed alterations should extend to the f i f t h part of the Att ic les of Confederation guaran-teeing that each state should be enti t led to one vote.

I t was a truly remarkable assembly of men that gathered i n Philadelphia on May 14, 1787, to undertake the work of reconstructing the American system of government. I t is not merely patriotic pride that compels one to assert that never i n the history of assemblies has there been a convent ion of men richer i n poli t ical ex­perience and i n ptactical knowledge, or endowed w i t h a profounder insight in to the springs of human action and the intimate essence of government. I t is indeed an as­tounding fact that at one t ime so many men skilled i n statecraft could be found on the very frontiers of c ivi l izat ion among a populat ion numbering about four m i l l i o n whites. I t is no less a cause fot admirat ion that their instrument of government

'Rhode Island alone was unrepresented. In all, sixty-two delegates were appointed by the states; fifty-five of these attended sometime during the sessions; but only thitty-nine signed the finished document.

Charles A . Beard 35

should have survived the trials and ctises of a century that saw the wreck of more than a score of paper constitutions.

A l l the members had had a practical t ta in ing i n politics. Washington, as commander-in-chief of the Revolutionary forces, had learned wel l the lessons and problems of wat, and mastered successfully the no less dif f icul t problems of adminis­trat ion. The two Morrises had distinguished themselves i n grappling w i t h f inancial questions as trying and perplexing as any w h i c h statesmen had ever been compelled to face. Seven of the delegates had gained pol i t ical wisdom as governors of their na­tive states; and no less than twenty-eight had setved i n Congress eithet during the Revolution or under the Articles of Confedetation. These were men trained i n the law, versed i n finance, skilled i n administration, and learned i n the pol i t ical philos­ophy of their o w n and all earlier times. Moreover, they were men destined to con­tinue public service under the government w h i c h they had met to construct— Presidents, Vice-Presidents, heads of departments, Justices of the Supreme Court were i n that imposing body. . . .

As Woodrow W i l s o n had concisely put i t , the framers of the Cons t i tu t ion rep­resented "a strong and intell igent class possessed of uni ty and informed by a con­scious solidarity of interests." 2 . . .

The makets of the federal Const i tut ion represented the solid, consetvative, commercial and financial interests of the country—not the interests w h i c h de­nounced and proscribed judges i n Rhode Island, N e w Jersey, and N o r t h Carolina, and stoned theit houses i n New York. The conservative interests, made desperate by the imbecilities of the Confederation and harried by state legislatures, roused them­selves from the lethatgy, drew together i n a mighty effort to establish a government that would be strong enough to pay the national debt, regulate interstate and foreign commetce, provide for national defense, prevent fluctuations i n the currency created by papet emissions, and control the propensities of legislative majorities to attack private tights. . . . The radicals, however, like Patrick Henry, Jefferson, and Samuel Adams, were conspicuous by their absence from the convent ion.* . . .

[The makets of the Const i tut ion were convened] to frame a government w h i c h would meet the practical issues that had arisen under the Articles of Confederation. The objections they entertained to direct popular government, and they were un­doubtedly many, were based upon their experience w i t h popular assemblies during the immediately pteceding years. W i t h many of the p la in lessons of history before them, they naturally feared that the rights and privileges of the m i n o t i t y would be insecute i f the principle of majority rule was definitely adopted and provisions made for its exercise. Furthermore, i t w i l l be remembered that up to that t ime the r ight of all men, as men, to share i n the government had never been recognized i n practice. Everywhere i n Europe the government was i n the hands of a rul ing monarch or at best a ruling class; everywhere the mass of the people had been regarded principally

2Woodrow Wilson, Division and Reunion (New York: Longmans, Green, & Co., 1893), p. 12.

"Compiler's note: The contents of this paragraph have been taken from positions on pp. 75-76 and 88 of the original text of The Supreme Court and the Constitution and placed here to emphasize the economic theme.

36 Constitutional Government

as an arms-bearing and tax-paying mult i tude, uneducated, and w i t h l i t t le hope or capacity for advancement. T w o years were to elapse after the meeting of the grave assembly at Philadelphia before the transformation of the Estates General into the N a t i o n a l C o n v e n t i o n i n France opened the floodgates of revolutionary ideas o n h u ­man rights before whose rising tide old landmarks of government are st i l l being sub-merged. I t is small wonder, therefore, that, under the circumstances, many of the membets of that august body held popular government i n slight esteem and took the people in to consideration only as far as i t was imperative " to inspire them w i t h the necessary confidence," as M r . Gerry frankly put i t . 3

Indeed, every page of the laconic record of the proceedings of the convent ion preserved to posterity by M r . Madison shows conclusively that the members of that assembly were not seeking to realize any fine notions about democracy and equal­i ty , but were str iving w i t h al l the resources of pol i t ica l wisdom at their command to set up a system of government that would be stable and efficient, safeguarded o n one hand against the possibilities of despotism and o n the other against the on­slaught of majorities. I n the m i n d of M r . Gerry, the evils they had experienced flowed " f r o m the excess of democracy," and he confessed that whi le he was st i l l re­publican, he "had been taught by experience the danger of the levell ing spir i t . " 4

M r . Randolph i n offering to the consideration of the convent ion his plan of gov­ernment, observed " that the general object was to provide a cure for the evils un­der w h i c h the U n i t e d States labored; that , i n tracing these evils to their or igin, every man had found i t i n the turbulence and follies of democracy; that some check therefore was to be sought for against this tendency of out governments; and that a good Senate seemed most l ikely to answer the purpose."5 M r . H a m i l t o n , i n advocating a life t e tm for Senators, urged that " a l l communities divide themselves i n t o the few and the many. T h e first are r i c h and wel l born and the othet the mass of the people who seldom judge or determine r i g h t . "

Gouverneur Morris wanted to check the "precipitancy, changeableness, and excess" of the representatives of the people by the abil i ty and virtue of men "of great and established property—aristocracy; men who from pride w i l l support con­sistency and petmanency. . . . Such an aristocratic body w i l l keep down the turbu­lence of democracy." W h i l e these extreme doctrines were somewhat counter­balanced by the democratic principles of M r . W i l s o n who urged that "the government ought to possess, not only first, the force, but second the m i n d or sense of the people at latge," Madison doubtless summed up i n a btief sentence the gen­eral op in ion of the convent ion when he said that to secure private rights against majority factions, and at the same time to preserve the spirit and form of popular government, was the great object to w h i c h their inquiries had been directed. 6

They were anxious above everything else to safeguard the rights of private property against any leveling tendencies o n the part of the propertyless masses.

^Jonathan Elliot, The Debates in the Several State Conventions on the Adoption of the Fed eral Constitution (Washington, D.C.: The Editor, 1827-1830), vol. v, p. 160.

Hbid., vol. v, p. 136. Hhid., vol. v, p. 138. 6The Federalist, No. 10.

Charles A . Beard 37

Gouverneur Morris , i n speaking o n the problem of apport ioning representatives, correctly stated the sound historical fact when he declared: "Li fe and liberty were generally said to be of mote value than property. A n accurate view of the matter would, nevertheless, prove that property was the m a i n object of society. . . . I f property, then, was the main object of government, certainly i t ought to be one measure of the influence due to those who were to be affected by the govern­ment . " 7 M r . K i n g also agreed that "property was the primary object of society." 8

and M r . Madison warned the convent ion that i n framing a system w h i c h they wished to last for ages they must n o t lose sight of the changes w h i c h the ages would produce i n the forms and dis t r ibut ion of property. I n advocating a long term i n order to give independence and firmness to the Senate, he described these i m ­pending changes: " A n increase of populat ion w i l l of necessity increase the propor­t i o n of those who w i l l labor under al l the hardships of life and secretly sigh for a more equal dis tr ibut ion of its blessings. These may i n t ime outnumber those w h o are placed above the feelings of indigence. A c c o r d i n g to the equal laws of suffrage, the power w i l l slide in to the hands of the former. N o agrarian attempts have yet been made i n this country, but symptoms of a level l ing spirit , as we have under­stood have sufficiently appeared, i n a certain quarter, to give notice of the future danger."9 A n d again, i n support of the argument for a property qual i f icat ion o n voters, Madison urged: " I n future times, a great majot i ty of the people w i l l not only be w i t h o u t landed, but any other sort of property. These w i l l either combine, under the influence of their c o m m o n s i t u a t i o n , — i n w h i c h case the rights of prop­erty and the public l iberty w i l l not be secure i n their hands,—or what is more probable, they w i l l become the tools of opulence and ambi t ion ; i n w h i c h case there w i l l be equal danger o n anothet s ide . " 1 0 Various projects for setting up class rule by the establishment of property qualifications for voters and officers were ad­vanced i n the convent ion, but they wete defeated. . . .

The absence of such property qualifications is certainly not due to any belief in Jef­ferson's ffee-and-equal doctrine. It is due rather to the fact that the members of the convention could not agree on the nature and amount of the qualifications. Natu­rally a landed qualification was suggested, but for obvious reasons it was tejected. Although it was satisfactory to the landed gentry of the South, it did not suit the f i ­nancial, commercial, and manufacturing gentry of the North. If it was high, the latter would be excluded; if it was low it would let in the populistic farmers who had already made so much trouble in the state legislatures with paper-money schemes and other devices for "relieving agriculture." One of the chief reasons for calling the convention and framing the Constitution was to promote commerce and industry and to protect personal property against the "depredations" of Jeffer­son's noble freeholders. On the other hand a personal-property qualification, high enough to please merchant princes like Robert Morris and Nathaniel Gorham would shut out the Southern planters. Again, an alternative of land or personal

'Elliot's Debates, op. cit., vol. v, p. 279. 8 Ibid. , p. 280. 'Ibid., p. 243. i°Ibid., p. 387.

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property, high enough to afford safeguards to large intetests, would doubtless bring about the rejection of the whole Constitution by the troublemaking farmers who had to pass upon the question of ratification.* . . .

Nevertheless, by the system of checks and balances placed i n the government, the convent ion safeguatded the interests of property against attacks by majorities. The House of Representatives, M r . H a m i l t o n pointed out, "was so formed as to render i t particulatly the guardian of the poorer orders of citizens," 1 1 whi le the Senate was to ptesetve the rights of property and the intetests of the m i n o t i t y against the demands of the ma jor i ty . 1 2 I n the tenth number of The Federalist, M r . Madison argued i n a philosophic ve in i n support of the proposition that i t was necessary to base the po­l i t ica l system o n the actual conditions of "natural inequality." U n i f o t m i t y of inter­ests throughout the state, he contended, was impossible o n account of the diversity i n the faculties of men, f rom w h i c h the rights of property originated; the protection of these faculties was the first object of government; f rom the protection of different and unequal faculties of acquiring property the possession of different degrees and kinds of property immediately resulted; f rom the influence of these on the senti­ments and views of the respective proprietors ensued a division of society into dif­ferent interests and parties; the unequal distr ibution of wealth inevitably led to a clash of interests i n w h i c h the majority was liable to carry out its policies at the ex­pense of the minor i ty ; hence, he added, i n concluding this splendid piece of logic, "the majotity, having such coexistent passion or interest, must be rendered by theit numbet and local situation unable to concert and carry in to effect schemes of op-pression"; and i n his op in ion i t was the great merit of the newly framed Consti tu­t i o n that i t secured the tights of the minor i ty against "the superior force of an inter­ested and overbearing majori ty ."

This very system of checks and balances, w h i c h is undeniably the essential ele­ment of the Const i tut ion , is bu i l t upon the doctrine that the popular branch of the government cannot be allowed f u l l sway, and least of al l i n the enactment of laws touching the rights of property. T h e exclusion of the ditect popular vote i n the election of the President; the creation, again by indirect election, of a Senate which the framers hoped would represent the wealth and conservative interests of the country ; + and the establishment of an independent judiciary appointed by the Ptes-ident w i t h the concutrence of the Senate—all these devices bear witness to the fact that the undetlying purpose of the Const i tu t ion was not the establishment of popu­lar government by means of parliamentary majorities.

Page after page of The Federalist is directed to that p o t t i o n of the electorate w h i c h was disgusted w i t h the "mutabi l i ty of the public councils." W t i t i n g o n the

'•Elliot's Debates, op. at., vol. v, p. 244-nlbid., vol. v, p. 203. 'Compiler's note: This single paragraph from "Whom Does Congress Represent?" Harper's

Magazine, Jan. 1930, pp. 1HH-152, has been inserted here because of its value in amplifying the pas­sages from The Supreme Court and the Constitution. Reprinting from this article by Beard has been done with the permission of Harper's Magazine.

^Compiler's note: Popular election of senators was achieved in 1913 through the Seventeenth Amendment to the Constitution.

Charles A . Beard 39

presidential veto H a m i l t o n says: "The propensity of the legislative department to inttude upon the tights, and absorb the powers, of othet departments has already been suggested and repeated. . . . I t may perhaps be said that the power of pre­venting bad laws included the power of preventing good ones; and may be used to the one purpose as wel l as the othet. But this objection w i l l have l i t t le weight w i t h those who can properly estimate the mischiefs of that inconstancy and mutabi l i ty i n the laws w h i c h form the gteatet blemish i n the character and genius of our gov­ernments. They w i l l consider every ins t i tut ion calculated to restrain the excess of law-making and to keep things i n the same state i n w h i c h they happen to be at any given petiod, as mote l ikely to do good than harm; because i t is favorable to greater stability i n the system of legislation. T h e injury w h i c h may be possibly done by de­feating a few good laws w i l l be amply compensated by the advantage of preventing a number of bad ones."

W h e n the framers of the Cons t i tu t ion had completed the remarkable instru­ment which was to establish a national government capable of discharging effec­tively certain great functions and checking the propensities of populat legislatures to attack the tights of private property, a fotmidable task remained before t h e m — the task of securing the adoption of the new frame of government by states torn w i t h popular dissensions. They knew very wel l that the state legislatures w h i c h had been so negligent i n paying their quotas [of money] under the Articles [of Confedetation] and w h i c h had been so jealous of their rights, would probably stick at ratifying such a national insttument of government. Accordingly they cast aside that clause i n the Articles tequit ing amendments to be ratif ied by the legislatures of all the states; and advised that the new Const i tu t ion should be ratified by con­ventions i n the several states composed of delegates chosen by the voters.* They furthermore declared—and this is a fundamental mat ter—that when the conven­tions of nine states had ratified the Cons t i tu t ion the new government should go into effect so far as those states were concerned. T h e chief reason for resorting to ratifications by conventions is laid down by H a m i l t o n i n the twenty-second n u m ­ber of The Federalist: " I t has not a l i t t l e contributed to the infirmities of the exist­ing federal system that it nevet had a ratification by the people. Resting o n no bet-tet foundation than the consent of the several legislatures, i t has been exposed to frequent and intticate questions concerning the val idi ty of its powets; and has i n some instances given b i r t h to the enotmous doctrine of a r ight of legislative repeal. O w i n g its rati f ication to the law of a state, i t has been contended that the same au­thority might repeal the law by w h i c h i t was ratif ied. However gross a heresy i t may be to mainta in that a party to a compact has a r ight to tevoke that compact, the docttine itself has respectable advocates. T h e possibility of a question of this na­ture proves the necessity of laying the foundations of our nat ional government deeper than i n the mete sanction of delegated authority. T h e fabric of Amer ican empire ought to rest on the solid basis of the consent of the people. T h e streams of

"Compiler's note: The original text, p. 75, comments: "It was largely because the framers of the Constitution knew the temper and class bias of the state legislatures that they arranged that the new Constitution should be ratified by conventions."

40 Constitutional Government

nat ional power ought to flow immediately f rom that pure original foundation of al l legitimate authori ty . "

O f course, the convent ion d i d not resort to the revolutionary policy of trans­m i t t i n g the Cons t i tu t ion directly to the conventions of the several states. I t merely laid the finished instrument before the Confederate Congress w i t h the suggestion that i t should be submitted to "a convent ion of delegates chosen i n each state by the people thereof, under the recommendation of its legislature, for their assent and rati f icat ion; and each convent ion assenting thereto and ratifying the same should give notice thereof to the U n i t e d States i n Congress assembled." The convention went o n to suggest that when nine states had ratified the Const i tut ion , the Confed­erate Congress should extinguish itself by making provision for the elections neces­sary to put the new government in to effect. . . .

Af te r the new Const i tu t ion was published and ttansmitted to the states, there began a long and bitter f ight over rat i f icat ion. A veritable flood of pamphlet litera­ture descended upon the country, and a col lect ion of these pamphlets by H a m i l t o n , Madison, and Jay, brought together undet the t i t le of The Federalist—though clearly a piece of campaign literature—has remained a permanent part of the contempo­rary sources on the Const i tu t ion and has been regarded by many lawyers as a com­mentary second i n value only to the decisions of the Supreme Court . W i t h i n a year the champions of the new government found themselves victotious, for on June 21, 1788, the n i n t h state, N e w Hampshire, ratified the Const i tut ion , and accordingly the new government might go into effect as between the agreeing states. W i t h i n a few weeks, the nationalist party i n Virg in ia and N e w York succeeded i n w i n n i n g these two states, and i n spite of the fact that N o r t h Carolina and Rhode Island had not yet ratified the Const i tut ion , Congress determined to put the instrument into effect i n accordance w i t h the recommendations of the convention. Elections for the new government were held; the date March 4, 1789, was f ixed for the formal es­tablishment of the new system; Congress secured a quorum on A p r i l 6; and o n A p r i l 30 Washington was inaugurated at the Federal H a l l i n W a l l Street, New York.

r*^

Charles A. Beard suggests that there is a dichotomy between the values of the Consti­

tution and those of the Declaration of Independence, between Jefferson and his followers

on the one hand, and Madison and Hamilton on the other. He suggests that Jefferson and

the Revolutionists supported political equality and individual freedom and opposed a

strong central government. The spirit of the Revolution, argues Beard, spawned the Arti­

cles of Confederation, which purposely created a weak and ineffective government. The

Revolutionists, in general, were not men of property and thus did not believe that a strong

central government was necessary to protect their interests. By contrast, the framers of the

Constitution reflected the spirit of Alexander Hamilton, who ironically was not a man of

substantial property himself, but who advocated an energetic and dominant national gov­

ernment. Hamilton, like many of the framers, was a strong proponent of governmental pro­

tection of property interests.