to the final draft.
No less disconcerting was the fact that a number of influential political leaders, including Patrick Henry, Richard Henry Lee, and James Monroe of Virginia, Samuel Adams and John Hancock of Massachusetts, and John Jay and Governor George Clinton of New York, had either boycotted the convention or were excluded from it. At least some of them could now be expected to oppose or lead the fight against ratification.
Moreover, the nation’s two most experienced constitutional architects, John Adams of Massachusetts and Thomas Jefferson of Virginia, both of them leaders of pivotal states in the ratification struggle and warm supporters of the new Constitution, were on diplomatic assignment in Europe. Thus, they could not participate in the convention’s deliberations or in the public debates over ratification. They nevertheless corresponded with friends back home and with each other, readily exchanging views on the Constitution’s strengths and weaknesses. “We agree perfectly,” Adams wrote Jefferson, “that the many should have a full, fair, and perfect representation. You are apprehensive of Monarchy, I of Aristocracy. I would therefore have given more Power to the President and less to the Senate.”3 A few of the Framers also solicited the opinions of Adams and Jefferson. James Madison of Virginia, for example, corresponded regularly with Jefferson, and Roger Sherman of Connecticut exchanged views with Adams on a number of constitutional points. Adams told Jay at the outset of the ratification struggle that “the public mind cannot be occupied about a nobler object than the proposed plan of government. It appears to be admirably calculated to cement all America in an affectation and interest, as one great nation.” Like so many friends of the Constitution, Adams acknowledged its imperfections but accepted the new Constitution as probably the best compromise possible under the circumstances. “A result of accommodation and compromise cannot be supposed perfectly to coincide with everyone’s idea of perfection,” he reminded Jay. “But, as all the great principles necessary to order, liberty, and safety are respected in it, and provision is made for corrections and amendments as they may be found necessary, I confess I hope to hear of its adoption by all the states.”4
THE MOVEMENT TOWARD CONSTITUTIONAL REFORM
The Framers of the American Constitution confronted three major tasks. The first was to improve the relationship among the States, or to create “a more perfect union.” The second was to design a federal government with limited, delegated, and enumerated powers sufficient to govern effectively, reserving to the States and the people thereof those powers not delegated, in order to protect their rights and liberties and prevent the central government from usurping them. The third task was to implement the principle of “government by consent” and to confer legitimacy upon the new government by building it upon a solid foundation of popular sovereignty, without sacrificing the sovereignty of the States that agree to join the Union. How the Framers accomplished these objectives is the story of the American founding.
The Federal, or Philadelphia, Convention, as it is sometimes called, was the culmination of a struggle dating back to the American Revolution to provide central direction to American affairs and promote closer cooperation among the then-thirteen colonies. Even before the outbreak of armed hostilities, colonial leaders had recognized the importance of coordinated opposition to British domination, as witnessed by the convening of the Stamp Act Congress in 1765 to challenge the constitutionality of the Act, and the formation between 1772 and 1774 of intercolonial Committees of Correspondence to exchange information and unite the colonies against George III and the British Parliament.
These efforts laid the groundwork for concerted action that led directly to the creation of the first Continental Congress in 1774. This remarkable body sat for fifteen years, first in Carpenters’ Hall in Philadelphia and later in a number of other cities, completing its final session in New York City in 1788. Though regarded at first as only a temporary assembly, the Continental Congress met for seven years (1774–1781) before its powers were ever clearly defined. During this period, it exercised many of the powers of a sovereign state, such as declaring the independence of the United States, issuing currency, borrowing large sums of money, entering into an alliance with France, building a navy, and raising an army. It also drafted America’s first instrument of government, styled “The Articles of Confederation and Perpetual Union.” Described as a “league of friendship” among the thirteen States, each retaining “its sovereignty, freedom and independence,” the Articles of Confederation were more like a treaty than a genuine constitution delineating the powers and functions of a central government. The document made no provision for an executive or a judiciary branch, and the member States retained most of their original powers. Not the least disconcerting was the failure of the Articles to confer supremacy on the Confederation’s laws and treaties, thereby rendering them equal to State constitutions and statutes and making them unenforceable when a State refused to comply.
As early as July 1775 the need for Articles of Confederation was discussed in Congress, and a plan for them was presented by Benjamin Franklin. But no action was taken until June 7, 1776, when Richard Henry Lee offered a resolution providing that: (1) “these United Colonies are, and of right ought to be, free and independent States”; (2) that alliances should be made for their protection; and (3) that “a plan of confederation be prepared and transmitted to the respective colonies.”5 On June 11, a committee consisting of Thomas Jefferson, Benjamin Franklin, John Adams, Robert Livingston, and Roger Sherman was appointed to prepare a Declaration of Independence. A second committee, headed by John Dickinson of Delaware, was appointed a day later to draft the Articles of Confederation. After extended debate and considerable delay, the Articles were formally adopted on November 15, 1777, and sent to each State legislature for ratification. Because the Articles required the unanimous consent of all the States before they could go into effect, there were further delays. Some of the small States, especially Maryland, refused to sign until the larger States surrendered their claims to territory in the Northwest. Consequently, the Articles did not go into effect until Virginia offered to cede her claims to the Union in 1781. What is more, by defining the powers of the Continental Congress the Articles necessarily limited them; actions previously thought appropriate were now denied.
Throughout its relatively brief existence, which ended in 1789 when the system created by the Philadelphia Convention was put into operation, there was widespread dissatisfaction with the Articles, principally because they conferred so little power on the Continental Congress. Indeed, in 1780, even before ratification was complete, Alexander Hamilton anticipated the difficulties that would arise and urged political leaders to call a convention of the States to draft plans for a far stronger confederation. A short time later, in 1781, writing under a pen name, “The Continentalist,” he again argued that “we ought without delay to enlarge the powers of Congress.”6 In 1780, a convention of New England States meeting in Boston proposed that the American States immediately form a “more solid union” than that provided by the Articles. In 1781 and 1782, the New York Assembly recommended “a general convention of the States specially authorized to revise and amend the Confederation.”7
Responding to these appeals, the Continental Congress tried, without success, to amend the Articles and enlarge its powers. In February 1781, for example, Congress proposed an amendment authorizing the Confederation government to levy a five percent ad valorem duty to raise revenue. Twelve states agreed, but Rhode Island opposed the change, and because of the unanimity requirement the amendment failed. A month later James Madison recommended that Congress be given authority to employ the force of the United States to “compel [the] States to fulfill their federal engagements,” but no action was taken.8 Again, that same year a committee of the Congress reported twenty-one deficiencies in the Articles and recommended a general enlargement of Congress’s powers, but without success. As late as 1786, Charles Pinckney of South Carolina was leading an effort in the Congress to call a constitutional convention, but to no avail.
The Continental Congress, it became clear, had reached an impasse. In practice, the unanimity requirement rendered it virtually impossible to amend the document even if an overwhelming majority of the States favored change. The inability to act on these provisions necessarily doomed the Articles of Confederation to extinction, because the Continental Congress was helpless to correct flaws in the system or to adapt it to changing circumstances.9 During the final eight years of its