Constitution Day 2007
220 and Counting: Fixes and Failings of the Constitution of 1787
By William Woodward, Ph.D.
Professor of History
Seattle Pacific University
“What do you have for us, Dr. Franklin?” called a woman to the aged sage as, precisely 220 years ago today, he was carried from Independence Hall at the close of the Constitutional Convention.
“A republic, Madam, if you can keep it,” Benjamin Franklin replied.
Or so the story goes. That there was such an exchange might be true. That we have kept the republic is certainly true. The Constitution of the United States remains the oldest national constitution in the world.
Encrusted with lore and learning, to say nothing of 27 amendments, the Constitution today seems both more formidable and more familiar than it did to Americans in 1787. It is well to try to recover what it said and what it meant to those reading it for the first time. To grasp the essence of the document at its birth, we need to ask two questions: What flaws did it fix, and how did it fall short?
THE FLAWS
Clear and compelling reasons drove a network of American leaders to press for a new national charter in the aftermath of the Revolution. They keenly felt the inadequacies of the existing structure of government, laid out in a wartime agreement known as the Articles of Confederation.
That is, the hoary document we venerate today was a hard-won, complicated solution to immediate problems. And the storied Framers who wrote it were practical and often contentious men, most of whom disliked some if not all of what they produced in that broiling summer in Philadelphia.
(In fact, three of the most active voices during the Convention finally refused, at the end, to sign the document: Elbridge Gerry of Massachusetts (who would bequeath “gerrymander” to our political lexicon) and Virginians George Mason (arguably the father of the Bill of Rights), and future Attorney General and Secretary of State Edmund Randolph.)
So what deadly flaws in the Articles drove them to create a new charter? Four clusters of problems plagued the infant United States after independence was won in 1783.
1. An economy in shambles. The United States emerged from the war with debts it could not pay, and a shaky national economy it could not manage. Most soldiers had been paid with IOUs that stood virtually worthless. The French and Dutch governments had extended loans that could be repaid only with new loans. The infant nation’s economic lifeline, overseas trade, was severely disrupted, its best markets off limits. Raging inflation demonstrated Americans’ skepticism about the dollar. As one recent historian points out, you could buy a sheep for $150 in U.S. currency … or for just $2 dollars if you had hard coin.
And the Confederation Congress was powerless to raise money or regulate trade.
2. A society under stress. The thrill of victory and the celebration of equality could not offset social conflicts harking all the way back to the colonial era. Pioneers poured over the Appalachians wondering what rights and protections they could expect — and from what authority. Back in the 13 coastal states, citizens jealously upheld the interest of their “country,” that is, their own state, including imposing restrictions and taxes on other states’ goods. Northern states hesitantly moved to end slavery while southern states insisted on protecting their “property” in human flesh. Various intrigues and mini-rebellions revealed frightening class and geographic tensions. One group of aggrieved farmers in Western Massachusetts raised an army against state authorities; General Washington himself despaired of the survival of the republic he had fought to secure.
And the Confederation Congress was powerless to raise armies, adjudicate disputes, or enforce order.
3. Diplomatic humiliation. Two of the greatest American statesmen missed the 1787 convention. That’s because John Adams and Thomas Jefferson were serving as U.S. ministers to the two great superpowers of the age: Britain and France. Mired in utter frustration, Adams and Jefferson were routinely ignored by their hosts, for the United States was a laughingstock. Both the chagrined former enemy, Britain, and the haughty erstwhile ally, France, looked at America’s governmental weakness with contempt. British soldiers continued to garrison forts on American soil. Mediterranean pirates preyed on American shipping. Even Spain, a declining power, barred the Mississippi River to Americans; the best concession negotiator John Jay could get was a few trading privileges in Spanish domains while the river remained closed for decades. Rumblings of secession wafted in from the Western settlements.
And the Confederation Congress, powerless to win respect in the world, nearly splintered over sectional strife when Jay presented his draft treaty.
4. Governmental impotence. Recalling the arbitrary imposition of British taxes and laws, the drafters of the Articles sharply constrained the government they created. Not only could Congress do nothing without virtually unanimous consent of the states, but also no government structure — no separate executive or judiciary — existed for Congress itself. No clear-cut authority bound the states to each other or subsumed their individual action under a national system. In fact, there was no permanent seat of government: The Congress wandered from city to city. Impotence bred incompetence, as able political leaders preferred posts in state government to a meaningless term in Congress.
And the Confederation Congress was powerless to rule the states or put its own house in order.
American leaders chafed, dispatching heated letters to each other to vent their fury and fear. Wrote General Henry Knox to George Washington: “The state systems are the accursed thing that will prevent our being a nation.” Wrote Washington to fellow Virginian James Madison: “We are either a united people or we are not. If the former let us … act as a nation. … If we are not, let us no longer act a farce … .”
The Confederation Congress was powerless. The Articles gave essentially no enforcement authority to its central government — no power to tax, to conscript, to regulate commerce, or to punish lawbreakers. The specter of anarchy loomed, a threat to liberty even worse, some thought, than British tyranny.
When we grasp the depth of these problems, and the resulting frustration of leaders like Washington and James Madison, who saw their Glorious Cause in imminent peril, we begin to realize the impetus behind the Constitutional Convention of 1787. But we thereby can perceive and appreciate the stunning achievement of those politicians in Philadelphia.
For they managed to fix much that was broke.
THE FIXES
Let’s take the problems in reverse order.
4. Governmental effectiveness. It was a tense and tedious process, but the Convention delegates forged a full-blown national government. Article Three concisely prescribed a federal judiciary crowned by a U.S. Supreme Court. Article Two created a unitary executive, called a president, with powers dangerously close to monarchical but with clear limits (“checks and balances,” as we now call them). The chief executive commands the Army, but the Congress raises and trains it. He (perhaps soon she, since the Constitution does not limit the presidency to a male) appoints diplomats with full power to represent the United States, but the Senate must approve the appointments. He can veto bills passed by Congress, but the Congress can override.
The powers and limits on Congress appear, significantly, in Article One. The genius of the Convention perhaps is best illustrated here, in the structure of a two-house legislature with the lower body (“House of Representatives”) elected proportional to population, and the upper chamber (“Senate”) allotted by state. A wild-card dimension of the latter is that each state gets two senators, who can vote independently of each other. And if both houses concur, the Congress can levy taxes and compel payment, and exercise exclusive power to control trade between states and overseas.
(As the wisecrack goes, if you thought taxation without representation was bad, look what taxation with representation has gotten us into!)
Yet even above the taxing power, perhaps the most important provisions came in Articles Four and Six, where state authority is acknowledged but subsumed under the national Constitution (“the supreme law of the land”). States themselves must recognize the public acts and citizen rights of other states, but it is the national government’s charge to “guarantee to every state in this union a Republican (i.e., representative) form of government” — a government of and for the people.
Far from powerless, the new national government wielded enormous power on behalf of the people, yet remain accountable to them through the electing process. And this was borne out in its first 10 years, as the administrations of George Washington and John Adams set up cabinet departments, raised revenue, started paying down the national debt, put down another popular rising in the west, sent an army to force hostile tribes to sign peace treaties, and admitted three new states.
Perhaps the signature moment came in 1800, when Jefferson beat incumbent President Adams in a near-apocalyptic campaign … and nothing happened. No revolution broke out. Adams went home to Braintree on schedule, Jefferson moved into the unfinished White House, and the world marveled.
Meanwhile, American negotiators wrested reasonably favorable treaties out of Britain, Spain, and France.
3. Diplomatic coherence. Indeed, once the Constitution went into effect, no foreign government could doubt who was in charge in America. When, almost immediately, the French Revolution erupted and the new regime in France tried to recruit Americans to aid their renewed war with Britain, the Washington administration proclaimed American neutrality and demanded the French minister’s recall. (Monsieur Genet, wisely fearing the invention of Monsieur Guillotin, chose to stay in America, marry, and disappear into the wilds of upstate New York.) Leveraging this neutrality, John Jay negotiated a controversial trade treaty with the British that at least got rid of redcoats on American soil; Jay’s Treaty induced the Spanish to sign a pact opening the Mississippi. When the French attacked American merchant vessels, President Adams created a Navy and sent warships out to battle the French — successfully — in the Atlantic; Napoleon’s government finally signed a peace agreement that released the United States from the obligations of its old Revolutionary War alliance.
Far from powerless, the new national government exercised impressive influence in the world, securing its borders while avoiding foreign entanglements. Initiating a distinctive style in international dealings during its first 10 years, the United States would henceforth play a key role, both in homeland defense and in power projection, on the world’s geopolitical stage.
2. Social energy. The aftermath of the Constitution’s ratification witnessed an exuberant outpouring of national spirit. Two examples will illustrate. Noah Webster developed a dictionary standardizing a proudly American English. And as the tercentenary of Columbus’ discovery loomed, and Americans fancied themselves the heirs of his exploit, “Columbus” or “Columbia” became popular nicknames for the American nation. The capitals of South Carolina and Ohio, the nation’s own federal District, an epic patriotic poem (“Columbiad”) and patriotic songs (“Columbia, the Gem of the Ocean”) appropriated the names. So did a river. Precisely in 1792, a Boston sea captain found the mouth of the long-suspected River of the West, and named it after his ship, Columbia. Internal conflicts remained, but an overriding national patriotism was beginning to trump local loyalties.
Far from powerless, the new national government inspired renewed loyalty and creative energy. In its first 10 years and beyond, America’s religious landscape would democratize, its culture would nationalize, its leaders would embrace innovation as a way of life, and its people would accelerate their mad dash into the continent’s interior.
1. Economic recovery. With the new government came a new confidence that sparked a remarkable new economic boom. Both public and private sectors share the credit. Washington’s brilliant young Treasury Secretary, Alexander Hamilton, concocted an economic blueprint that supporters rammed through Congress, though not without huge controversy. Most fundamentally, he secured for the United States what today we would call a sound credit score in international financial circles. Foreign investors vied to buy up American bonds, which remain the world’s standard. Private merchants ventured everywhere on earth, bringing immense profits home to America, where eventually they would be invested in factories and railroads. Prosperity rebounded.
Far from powerless, the new national government exercised enormous power and creativity in designing a national economic system. And the effort proved highly divisive. In its first 10 years, national economic policy split the country essentially as it has ever since, with one group oriented to assertive federal management for the sake of national economic development, and an opposition jealous to protect bottom-up expansion of the economic rights and opportunities of common folk. Call it trickle-down versus redistributionist approaches and you’d be using vocabulary foreign to the 1790s, but you’d grasp what was going on back when the government first had enough power to make it worth arguing about. And you’d perceive that in either case, it is an unchallenged assumption that the national government has both the authority and responsibility to promote a prosperous economy.
But to leave this account with these four successful fixes misses a huge chunk of the story. The Constitution wasn’t perfect, as its critics hastened to point out. In fact, some significant failings can be identified that would require future fixes.
THE FAILINGS
1. The guarantee of rights. Foremost among the acknowledged failures of the Framers was the omission of a Bill of Rights. Almost every state constitution had them. Ironically, that fact explains why none was included in the Convention draft: Delegates feared pre-empting state protections of basic liberties. But the people wouldn’t buy it. So supporters of ratification promised to add a list of protected privileges as soon as the new charter took effect. They kept their word. In the first Congress, 12 amendments were submitted, 10 of which ended up as our Bill of Rights. Oddly, one of the two left off the Top-10 list back in the 1790s resurfaced and was ratified in the 1990s as the 27th Amendment. You can look it up. And you should.
2. The status of slavery. The Constitution acknowledged and tolerated slavery; that it did so was both scandalous and essential. Without certain protections for the South’s “peculiar institution” Southern states would have bolted the convention. Northern delegates swallowed hard, gritted their teeth, and went along. Their willingness to compromise on the issue, embodied in the infamous “three-fifths clause,” is often misunderstood. In determining population for purposes of allocating U.S. representatives, and for purposes of direct taxation, five slaves would be counted as three whites. (Nowhere were slaves deemed three-fifths of a person, as is often said.) Ostensibly, what the South gained in added clout in the House, they would pay for in increased taxes. In practice, few “direct taxes” were imposed, so the payback never happened. What did develop was a disproportionate political leverage of Southerners in both houses of Congress as Northern white population grew through immigration. Each Southern state retained two senators, of course, and gained extra representatives because of counting their non-voting, non-represented slaves.
Decades later, many agitators for abolishing slavery would therefore denounce the Constitution as a “covenant with hell.” But other equally fervent abolitionists would find in that same Constitution the seeds of slavery’s destruction. The document forbade ending the external slave trade for 20 years, but that very ban pressured the Congress to stop slave importation as soon as they could, in 1808 (coincidentally, just prior to the year of Abraham Lincoln’s birth). A suggestion during the Convention to include a clause protecting slavery from any amendment abolishing it failed to win approval in Philadelphia, allowing the 13th Amendment to end African-American bondage belatedly but once for all in 1865.
But it took a Civil War to bring the nation to the point of adopting that amendment, a war that reflected lingering ambiguity about the proper relations between state and national authority.
3. The functioning of federalism. The Constitution of 1787 determined that states would still exist, but would be subject to national authority. That’s what “federalism” means. (For a further explanation of federalism, see my 2005 Constitution Day essay.) But how would America’s federal structure work out in practice? Would states retain full autonomy in their sphere, or could national authority reach into the social fabric of the states? That issue remained contested. As everyone knows, Southern states, convinced Northerners wanted to breach their slavery-preserving legal and economic levees, tried to leave the federal union in 1861. President Lincoln, reflecting the views of most Northerners, said they couldn’t constitutionally do that. And so the War came. It took hellish carnage to settle the question of national supremacy within the federal structure.
4. The power of the president. Is the chief executive the instrument of Congressional will, or a power center in his own right? George Washington himself began the process of asserting the prerogatives of the office: He once entered the congressional chambers to present nominations; when the legislators began to pick his proposals apart, he left in a huff. (No president again appeared in person before Congress until Woodrow Wilson.) The precise balance waxes and wanes with the political skill and popularity of the president, but mostly the executive branch has grown ever more powerful as history unfolds.
What many believe remains an unremedied failure is the method of choosing the president, using an impenetrable and awkward invention known as the Electoral College. Not only do all electoral votes accrue to whomever gets the plurality of popular votes within a state (“winner take all”), less populated states gain disproportionate leverage because their electoral votes match their total representatives plus senators. Thus, in 2004, Alaskan voters got an electoral vote for each 100,000 voters; Californians got one for each 225.000 voters. And at least four times — in 1824, 1876, 1888, and 2000 — the candidate with the most popular votes lost the election.
5. The role of the U.S. Supreme Court. The exhausted delegates didn’t even try to spell out the way the national judiciary would work. So although judicial oversight of state and national legislation is implied in the Constitution, it took the Supreme Court itself to assert its own power, ruling that it should rule on “constitutionality” of state and national laws. How much it can “infringe” on legislative or executive powers remains contested.
So the Constitution wasn’t perfect. Indeed, many of its fixes to the flaws of the Articles of Confederation turned out to be flaws that needed to be fixed. But it survives, testimony to the philosophical and political genius of those who worked through a steamy Philadelphia summer to “form a more perfect union.” For 22 decades it has been the lodestone for a diverse and contentious people who define themselves not by ethnicity or locality but by an ideology of freedom and the rule of law. And, as I explained a year ago in the 2006 Constitution Day essay, the Constitution not only survives, but it is also flexible enough to provide ways to fix its failings, and even ways to fix the fixes.
We have, indeed, a Republic. And, God be thanked, so far we’ve kept it.