the-quartet

In a thoroughly researched historian’s tour of the minds, methods and madness of four of the principle Founders and Framers of the American republic – James Madison, Alexander Hamilton, John Jay and George Washington – Joseph Ellis reveals essential historical truths that our collective mythology attempts to conceal:

1) That it required something of a conspiracy of a small cadre of revolutionary political elite to drag the American people, kicking and screaming, from a failed temporary confederacy into authentic nationhood.

2) That localism and provincialism, coupled with narrow private interests and their exploitation by populist demagogues nearly derailed the effort to forge a republic out of the ashes of the war of secession from Great Britain (much as today’s populist demagogues – including one running for the highest office in the land – still do).

3) That the opponents of the new Constitution and the Republic for which it stood conspired, themselves, to load the first Congress with those who wanted nothing more than to obstruct the government and render it impotent (just as one party has done for the entire two terms of the first black president).

4) That our modern tendency to see the Federalist Papers as the seminal statement of “the original intentions” of the framers is historically incorrect, as they were a wholly partisan attempt to persuade the anti-federalists to ratify the Constitution. The Federalist Papers were aimed, not at posterity, but at a highly limited audience of the moment – primarily at the people and delegates of New York where ratification was powerfully opposed – and were cleverly-worded propaganda tracts rather than statements of principle.

5) That the Founders and Framers who risked their immortal reputations for the sake of the Second American Revolution (the full transition from independence to nationhood) shared one common “original intention”, which was that the Constitution should be a living document, evolving with the times to meet the needs of each succeeding generation (the precise antithesis of the conservative judicial doctrine of “original intent”).

6) And that Madison’s intention in drafting what became the Second Amendment was solely to assure skeptical souls that the defense of the United States would depend on citizen militias rather than a professional standing army. In Madison’s formulation, the right to bear arms was not inherent but derivative, depending on service in the militia. The recent Supreme Court decision in Heller v. District of Columbia (2008) that found the right to bear arms an inherent right is clearly at odds with Madison’s original intentions (as several prominent conservative jurists have proclaimed).

*****************************************************************

joseph-ellis(2015) by Joseph J. Ellis, Pulitzer Prize winning author of Founding Brothers, and winner of the National Book Award for American Sphinx: The Character of Thomas Jefferson, among many other historical books, and retired Ford Foundation Professor of History at Mount Holyoke College.
*****************************************************************

What follows is a “reader’s digest” version of Ellis’ book.

*****************************************************************

While listening to twenty-eight middle school boys recite the Gettysburg Address from memory… it dawned on me that the first clause in the first sentence of Lincoln’s famous speech was historically incorrect.

In 1776, thirteen American colonies declared themselves independent states that came together temporarily to win the war, then would go their separate ways. The government they created in 1781, called the Articles of Confederation, was not really much of a government at all and was never intended to be. It was, instead, what one historian called a “Peace Pact” among sovereign states that regarded themselves as mini-nations of their own, that came together voluntarily for mutual security in a domestic version of a League of Nations.

No such thing as a coherent American nation could possibly have emerged after independence was won. Politically, a state-based framework followed naturally from the arguments that the colonies had been hurling at the British ministry for over a decade. The resolution declaring independence approved on July 2, 1776, clearly states that the former colonies were leaving the British Empire not as a single collective but as “Free and Independent States”.

The vast majority of Americans were born, lived out their lives, and died within a thirty-mile geographic radius. It took three weeks for a letter to get from Boston to Philadelphia. Political horizons and allegiances, therefore, were limited.

Indeed, it was presumed that any faraway national government would represent a domestic version of Parliament, too removed from the interests and experiences of the American citizenry to be trusted. And so creating a national government was the last thing on the minds of American revolutionaries, since such a distant source of political power embodied all the tyrannical tendencies that patriotic Americans believed they were rebelling against.

Truth be known, nationhood was never a goal of the war for independence. The only thing holding the American colonies together until 1776 was their membership in the British Empire. The only thing holding the American colonies together after 1776 was their common resolve to leave that empire. Once the war was won, the cord was cut, and the states began to float into their own, at best, regional orbits. North America was destined to become a western version of Europe: a constellation of rival political camps and countries, all jockeying for primacy.

The transition from the Declaration of Independence to the Constitution… represented a dramatic change in direction and in scale, in effect from a confederation of sovereign states to a nation-size republic, indeed the largest republic ever established.

So how do we explain such a seismic shift in the gravitational field of American political history? The dominant political forces in the 1780s were centrifugal rather than centripetal. The bottom-up explanation that works so well for the 1770s will not work for the 1780s. There was no popular insurgency for a national government because such a thing was not popular.

The obvious alternative explanation is top-down. While all democratic cultures find such explanations offensive, the 1780s just might be the most conspicuous and consequential example of the way in which a small group of prominent leaders, in disregard of popular opinion, carried the American story in a new direction.

The great conflict, as I see it, was not between “aristocracy” and “democracy”, whatever those elusive categories might mean, but rather between “nationalists” and “confederationists”, which is shorthand for those who believed that the principles of the American Revolution could flourish in a much larger political theater and those who did not.

The successful collaboration of this small cadre, I regard not as a betrayal of the core convictions of the American Revolution, but rather as a quite brilliant rescue.

My argument is that four men made the transition from confederation to nation happen. They are George Washington, Alexander Hamilton, John Jay, and James Madison. If they are the stars of the story, the supporting cast consists of Robert Morris, Gouverneur Morris (no relation), and Thomas Jefferson. My contention is that this political quartet diagnosed the systemic dysfunctions under the Articles, manipulated the political process to force a calling of the Constitutional Convention, collaborated to set the agenda in Philadelphia, attempted somewhat successfully to orchestrate debates in the state ratifying conventions, then drafted the Bill of Rights as an insurance policy to ensure state compliance with the constitutional settlement.

It made a huge difference that all four of the political collaborators possessed impeccable revolutionary credentials. And, since Washington was the one-man embodiment of all the semi-sacred reverberations that the Revolution conveyed, his endorsement of the national agenda provided a crucial veneer of legitimacy for their bold and slightly illegal project. It also helped that all four of them had served in the Continental Army or the Continental (then Confederation) Congress, which meant that they had experienced the war for independence from a higher perch than most of their contemporaries.

Perhaps the best way to understand the term American Revolution is to realize that it describes a two-tiered political process. The first American Revolution achieved independence, but it was a mere colonial rebellion. The second American Revolution modified the republican framework to create a nation-size republic. The American Revolution did not become a full-fledged revolution until it became more expansively American.

The first phase of the American Revolution was about the rejection of political power; the second phase was about controlling it. America could not become the dominant model for the liberal state in the modern world until the second American Revolution of 1787-88.

The Articles and the Vision

“Certain am I that unless Congress speaks in a more decisive tone; unless they are vested with powers by the several states competent to the great purposes of War…, that our cause is lost… I see one head gradually changing in to thirteen.” – George Washington to Joseph Jones, May 31, 1780

On March 1, 1781, three and a half years after they were endorsed by the Continental Congress, the Articles of Confederation were officially ratified when the last state, Maryland, gave its approval. The landless states, like Maryland, refused to ratify until all the states with extensive western claims – Virginia most prominently – agreed to cede their claims to Congress.

The president of the Continental Congress, Samuel Huntington, declared the creation of a new political entity, called the Confederation Congress, which established “a perpetual Union between the thirteen United States”.

European pundits regarded the very term “United States” as an oxymoron. What had brought the states together in the summer of 1776 was their common desire to secede from the British Empire. The Articles of Confederation were not intended to be a political framework for a national government, or to establish any kind of government at all. As the name suggests, the Articles created a confederation of thirteen sovereign states that were nations themselves, entering, as Article III put it, “into a firm league of friendship with each other for their common defense, the security of their liberties, and their mutual and general welfare”. It was less a constitution than a diplomatic treaty between sovereign powers.

The key provision was Article II: “Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right which is not by this Confederation expressly delegated to the United States, in Congress assembled.”

The powers were quite few, chiefly to resolve border disputes between states, establish national standard weights and measures and a common currency (though the states were not prohibited from printing their own money), and create “a common treasury” from funds raised by taxes on the states to pay for the war. Whether the states were legally obliged to pay the tax levies was left ambiguous. Article VIII vested authority in the state legislatures to comply “within the time agreed upon by the United States in Congress assembled”. For three years, the vast majority of states had failed to pay their share of taxes to support the Continental Army, leaving a legacy of confusion about where the power of the purse ultimately resided.

The proper model for a republican government had been established in the state constitutions, almost all of which followed the guidelines proposed by John Adams in his Thoughts on Government (1776). The central ingredients in the Adams political recipe were a bicameral legislature, an elected or appointed governor, and an independent judiciary – an early version of the separation of powers doctrine later embodied in the federal constitution.

The structure of the Articles – a single-house legislature and an appointed but powerless president – dispenses with all the political wisdom that had accumulated in the states about a properly balanced republican government, because that was not what the Articles were intended to be.

There was no way the Confederation Congress could claim to be a representative body. Article V put it succinctly: “In determining questions in the United States in Congress assembled, each State shall have one vote.” By rejecting proportional representation, the architects of the Articles were making a clear statement that they did not intend the Confederation Congress to function as a national government once the war was won. The closest approximation to our own time is the European Union.

This was in spite of the fact that, for the first fifteen months of the war, from the outbreak of hostilities in Lexington and Concord in April 1775 to the Declaration of Independence in July 1776, the Continental Congress functioned as a provisional national government: exercising control over military strategy, diplomacy and economic policy much in the manner of a fully empowered federal government. This occurred during heady times when the all-consuming political and military crisis forced the Congress to assume emergency powers, and do so in an atmosphere so saturated in patriotism that dissent was tantamount to treason.

In that context, the Philadelphia physician and revolutionary gadfly Benjamin Rush was able to say: “We are now a new Nation… dependent on each other – not independent states.” But Rush’s national vision proved to be a temporary infatuation. When the delegates to the Congress, in late July and early August of 1776, debated the character and shape of the new government, it exposed the latent sectional and ideological differences that would haunt the American experiment well into the next century.

That debate focused on the Dickinson Draft – a document written by a committee of twelve delegates in June, prior to the vote on independence, and chaired by John Dickinson, the leader of the moderate faction in Congress. Dickinson attempted to synthesize the competing convictions about what the new Aemrican republic should look like, and created an incoherent text.

The debate over that draft exposed three fundamental disagreements: a sectional split between northern and southern states over slavery, a division between large and small states over representation, and an argument between proponents for a confederation of sovereign states and advocates for a more consolidated federal union.

While the slavery issue was treated mostly by silence, it came up in the proposal for the war expenses to be paid proportionally according to the “number of inhabitants”, and South Carolina threatened “an end of the Confederation” if slaves were counted as people. This threat presaged South Carolina’s act of secession in 1861. Instead, the delegates revised the draft to base proportional taxation on “the value of all land within each state”.

Beneath the more pressing argument between small and large states over representation was the more fundamental disagreement over distance and scale. Representative government, for the vast majority of Americans, was a face-to-face affair; the greater the distance, the greater the distrust. Thus the arguments over political architecture were based on a residual psychological reality that imposed geographical limits on the political imagination of the vast bulk of ordinary Americans, while people like Ben Franklin, John Adams and Benjamin Rush held a broader national vision.

Looking back from the edge of the grave forty years later, John Adams recalled that it was “a standing miracle” that the delegates could agree on anything. But at the time, Adams was especially distraught that the near-unanimous consensus on American independence was followed by almost total disagreement over how an independent American republic should be configured. “Thus we are sowing the Seeds of Ignorance, Corruption, and Injustice in the fairest Field of Liberty ever appeared on Earth, even in the first attempts to cultivate it.” For Adams, it was especially distressing to witness such conspicuous failure “in the first formation of Government erected by the People themselves on their own Authority, without the poisonous Imposition of Kings and Priests”.

As the Continental Congress focused its attention on the war, which was not going well for the Americans, it nevertheless continued to debate and revise the Dickinson Draft, reducing the power of the central government with every change. The final draft of the Articles of Confederation that was sent to the states in November 1777, had been cleansed of any language that envisioned the existence of an American nation-state after the war. The states that rushed to ratify the Articles as a war-time measure, nevertheless submitted nearly a hundred proposed amendments to protect local and state interests from federal encroachment.

American war losses on Long Island and Manhattan prompted Washington to request an army three times larger than the 15,000-man force he then had, with enlistments to last three years or “for the duration”.

Congress approved the request, but none of the states complied. The states wanted to maintain their militias, often better paid than the Continental Army troops, and “for the duration” smelled too much like a standing army. The hard core of the Continental Army was eventually composed of misfits: indentured servants, recently arrived immigrants, emancipated slaves, and unemployed artisans – the vast majority were one-year enlistees, transients who comprised an army of amateurs. The Army suffered a lack of clothes, shoes, food and ammunition. This was oddly reassuring for many Americans, who wanted an army just strong enough not to lose the war but one that did not threaten the republican goals of the war.

Washington went on the offensive: “Certain am I that unless Congress speaks in a more decisive tone; unless they are vested with powers by the several states competent to the great purposes of War…, that our cause is lost… I see one head gradually changing in to thirteen.” He started writing a series of “Circular Letters to the States” to bypass Congress and convince the governors and state legislatures that the war would be lost if they don’t support the cause with both men and money.

While Adams had gone to Harvard and Jefferson to William and Mary, Washington had gone to war. His education possesses a more primal quality. On constitutional questions, he often deferred to his neighbor George Mason, as such issues struck Washington as abstractions. His own encounter with British imperialism was more personal and palpable, and he agreed to serve as commander of the Continental Army without pay, certain in the justice of the Cause if not in the outcome. Washington soon realized that he did not have to win the war against the world’s strongest military, just to avoid losing it.

The only subject on which all the disparate and cacophonous American voices agreed was that, whatever the Revolution meant, George Washington epitomized it.

Though Washington’s commitment to civilian control of the military never wavered, that did not deter him from lecturing his civilian superiors on the inadequacy of the confederation created by the Articles. He had a unique perspective on the pathetic powers of Congress, which Washington came to regard as a running joke:

“This Army, as usual, is without pay; and a great part of the Soldiery without Shirts, and if one was to hazard for them [Congress] an opinion, it would be that the Army had contracted such a habit of encountering distress and difficulties, and of living without money, that it would be impolite and injurious to introduce other customs to it.”

Even after the decisive victory at Yorktown, Washington began to believe that the same structural problems that blocked support for the Army would have dire, indeed calamitous, consequences after independence. As he put it in a letter to the president of Congress:

“I am decided in my opinion, that of the powers of Congress are not enlarged, and made competent to all general purposes, that the Blood which has been spilt, the expense that has been incurred, and the distress that have been felt, will avail nothing; and that the band, already too weak, which hold us together, will soon be broken; when anarchy and confusion must prevail.”

In his capacity as commander in chief, he could testify that the confederation model nearly lost the war and, if it persisted in its current form, he believed, it would lose the peace.

In June 1783, Washington sat down to compose his last Circular Letter to the States. He offered a truly panoramic assessment of why the just-concluded war for independence could also be called the American Revolution, and why the consolidation of its revolutionary energies required a national government capable of orchestrating those energies.

Washington saw that the new American Republic benefited from the good fortune of both time and space. The United States came into existence during an era “when the rights of mankind were better understood and more clearly defined, than at any former period”.

With the 1783 Treaty of Paris, the Americans had not only won their independence from the British Empire, but had also acquired an empire of their own, with its western boundary at the Mississippi River. Washington understood that the occupation and settlement of the vast lands to the west would define America’s domestic agenda for generations to come.

And, at least as Washington saw it, those western horizons fundamentally changed the chemistry of the political conversation by rendering the local and state perspectives of the current confederation pathetically provincial. He made no secret of his conviction that that Articles were a recipe for anarchy in postwar America, destined to dissolve his legacy of American Independence into a confused constellation of at best regional sovereignties, vulnerable to the predatory plans of hovering European powers.

The almost inadvertent acquisition of a western empire created a collective interest that all the states shared. As Washington saw it, the west replaced the war as the common bond. Managing this extraordinary asset required one to think nationally rather than locally.

Washington was predicting that the imperatives of geography, which were apparently limitless, would overwhelm the imperatives of ideology, which were narrowly confined. Though history would eventually prove him right, very few American statesmen agreed with him at the time, and the vast majority of American farmers, lacking the vision, were indisposed to look past the wooden fences encircling their fields.

The Financier and the Prodigy

“You are sure to be censured by malevolent Criticks and Bug Writers, who will abuse you while you are serving them, and wound your Character in nameless Pamphlets, thereby resembling those dirty little stinking Insects that attack us only in the dark, disturbing our Repose, molesting and wounding us while our Sweat and Blood is contributing to their Subsistence.” – Benjamin Franklin to Robert Morris, July 26, 1781

At the first session of the Confederation Congress, it was decided that nine states constituted a quorum, with two delegates necessary for a state to qualify as present. But on multiple occasions throughout the spring and summer of 1781, no official business could be done because five or more state delegations were either absent or partially represented. State legislatures were slow to select delegates, leading candidates refused to serve.

John Witherspoon of New Jersey became the most frequent and vocal critic of this sorry situation, waiting around with nothing to do because his erstwhile colleagues failed to show up. All business of foreign policy came before the full Congress, an unwieldy arrangement at best, and delegates from the same state would often be split, rendering that state’s voice void.

There was no agreement over whether Congress or the states had the right to determine western borders, over whether Vermont should be admitted to the confederation as a state, and the “continentals” (paper currency) and certificates (promissory notes) issued by Congress to pay the costs of the war had nothing of value to back them up, as the states refused to comply with the levies of Congress. In 1781, Congress requested $3 million from the states and received $39,138 in return.

Congress proposed an impost on imported goods, which would have required the unanimous approval of all states – a near impossibility, particularly given its resemblance to the British Townsend Acts of 1767. Yet the Confederation Congress had inherited a debt of between $30 and $40 million dollars, swelling each month with interest. It was entirely possible that the war for independence could be lost because the American government was broke and was configured in such a way that rendered any resolution of the problem impossible.

If there was no structural solution, the only possible answer was personal leadership. Find the right man, vest him with the requisite authority, then trust his judgement to balance the books and rescue  “The Cause” and the Continental Army from disintegration.

There was only one man eligible for this desperate mission, who happened to be the wealthiest man in America: the Financier, Robert Morris. For several reasons, Morris did not want the job, as he wrote in his diary after receiving the offer:

“A vigorous execution of the duties must inevitably expose me to the resentment of disappointed  and designing Men and to the Calumny and Detraction of the Envious and Malicious. I am therefore absolutely determined not to engage oin so arduous an undertaking.”

Morris had suffered accusations of self-aggrandizement after using his own credit to underwrite loans that rescued the Continential Army from starvation in the early years of the war. Ben Franklin, with whom Morris had served on a Secret Committee of the Continental Congress to negotiate with the ostensibly neutral French for arms, food and equipment for the army, wrote from Paris to urge Morris to assume responsibility for directing Aemrican fiscal policy.

Morris brooded for four months before accepting the job of superintendent of finance in May 1781. He knew what he was up against because he possessed a clear vision of what was needed to restore public credit, and an equally clear recognition that what needed to be done collided head-on with the state- based political structure of the Articles. The majority of delegates in Congress welcomed Morris as the Messiah and granted him unprecedented powers to deliver them from the financial abyss. But Morris realized from the start that he would need to lead them in a direction that most delegates, and most Americans, were unprepared to go.

Robert Morris, an immigrant from Liverpool who arrived with little more than the clothes on his back, in 20 years became the most prominent and wealthiest man in Philadelphia. Although it hurt his business, Morris supported the non-importation agreements against the Stamp Act, and reluctantly signed the Declaration of Independence, knowing that the war would prove ruinous for both sides. When he accepted the call to put America’s financial house in order, Morris was 47 years old and brought the firm conviction that patriotism and virtue were less effective motivation forces than private interest, and that the binding force between the states following the war would be debt and its counterpart, credit (both the monetary variety and the personal trust of others).

Morris’ way of thinking was terra incognita for most southern delegates, especially the Virginians, who regarded land, not money, as the ultimate measure of wealth, and for whom the manipulation of numbers on a balance sheet came across as some sinister form of magic.

Morris’ chief task was to restore the credit of the United States government, as if the confederation were a unified fiscal entity, and convince the European bankers and governments that the United States was fully capable of honoring its foreign and domestic debts and becoming a reliable presence in the global economy.

Morris’ first act was to announce the creation of the Bank of the United States, modestly capitalized at $400,000, as a first step in the direction of national solvency. He began sending a series of circular lettes to the states in which he apprised the governors that the annual requisitions were mandatory obligations, and launched an all out campaign for passage of the impost, the equivalent of a national tax.

Not wanting to divert funds to pay the army, Morris wrote personal checks to cover emergency funds for Washington’s Yorktown campaign – that proved to be the culminating battle of the war – believing that he would recover his losses when a cargo of silver arrived from France the following month. Within a few short months, Morris made himself the most powerful figure in the American government, second only to Washington as a national leader.

Morris’ comprehensive financial plan included, in addition to the national bank and impost, a land tax, a poll tax, and an excise tax on whiskey, plus the assumption of state debts by the Confederation Congress. It was a blueprint for a national economy almost identical to what Alexander Hamilton would propose a decade later.

Morris was attempting to impose a national economic architecture on a political foundation that vested sovereignty in the states. As victory seemed near on the establishment of the national impost, with eleven of the necessary thirteen states ratified, a change in the Rhode Island delegation shifted that state from support to opposition and Virginia revoked its ratification.

As support for a war that was all but over declined, so did support for any pretensions toward a national government. The youngest member of the Virginia delegation, James Madison, believed this did not bode well and he became one of Morris’ staunchest supporters, and eventually, next to Washington, Virginia’s preeminent nationalist.

Another of Morris’ most ardent supporters, the youngest delegate in the Congress at 27, Alexander Hamilton accepted Morris’ request to become tax collector of New York, a thankless and ultimately hopeless task.

Hamilton was also an immigrant, born out of wedlock in the Caribbean of a French woman who died in bed next to her son of a mysterious fever. Rescued from obscurity by talent, ambition and a series of benefactors, Hamilton made his way to Boston and then to Kings College (now Columbia) in New York. He joined the Continental Army in March 1776 as captain of an artillery company, and his exemplary service prompted Washington to name him an aide-de-camp at the rank of lieutenant colonel at 20 years old.

During the first four years of the war, Hamilton reached the conclusion that a state-based confederation  was inadequate for the conduct of the war and even more inadequate for the post-war peace. “When the war began,” Hamilton acknowledged, “we possessed ideas adapted to the narrow colonial sphere, in which we had been accustomed to move, not of the enlarged kind suited to the government of an Independent Nation.” As he saw it, too many Americans had learned the wrong lessons form the American Revolution. By overcorrecting out of fear of despotism, they had carried the country in the opposite direction, which now verged on anarchy. “It is to this Source that we are to trace many of the fatal mistakes which have so deeply endangered the common cause.” The failure to provide for the Continental Army, Hamilton believed, “had prolonged the war by several years”.

If these errors were not corrected, Hamilton wrote, they would haunt the infant republic, leading to “a number of petty states with the appearance only of union, jarring, jealous and perverse, without any determined direction, fluctuating and unhappy at home, weak and insignificant by their dissensions in the eyes of the nation”. As Hamilton put it, “Americans needed to think continentally”. But, beyond the specific political reforms that would be necessary, there was also a grand illusion that had to be dispelled: the belief that political power itself was inherently evil.

A full year before he was elected to the Confederation Congress, Hamilton had developed a full-blooded vision of a truly national government to replace the Articles and the basic framework for the argument to justify that change. Upon arrival in his seat in Congress in July 1782, Hamilton submitted a resolution to call a constitutional convention “to revise and amend the confederation”, which was promptly referred to committee where it was left to die.

The arrival of the Treaty of Paris, ending the war in April 1783, made the Continental Army superfluous. The men who had stayed the course and won the war were ushered off without pay, with paper pensions and only grudging recognition of their service.

Morris, who could not tolerate the injustice of it all, spent his last days in office writing personal checks, called Morris notes, to the tune of $750,000 in today’s dollars, which nearly bankrupted him. He had already announced his decision to step down, saying “I will never be the Minister of Injustice”.

To underline the growing sense of dissolution, when the provisional treaty arrived in Congress, a quorum did not exist to approve it, and no one was sure who had the authority to sign it as that body’s official representative.

The Domain

There is consensus among historians that the Treaty of Paris can be considered the greatest triumph in the annals of American diplomacy. It two cardinal achievements were the recognition of American independence and the acquisition of the eastern third of the North American continent, from Canada to Florida. This immediately made the United States larger geographically than any European nation, with natural resources that defied comprehension.

The man most responsible for this extraordinary achievement was John Jay, partly due to chance. Thomas Jefferson had declined the offer to serve on the American negotiating committee, citing the recent death of his wife. His replacement, Henry Laurens of South Carolina, was captured at sea and thrown into the Tower of London. John Adams was moving between Leyden, The Hague and Amsterdam, trying to negotiate a loan from the tight-fisted Dutch bankers. And a flare-up of gout cause Franklin to delegate most of the backroom diplomacy to Jay.

Jay met with the Spanish minister Count Aranda on August 3, 1782, because France was bound to Spain by treaty; and, as the two bent over a map of North America, Aranda drew a line from what is now Lake Erie down to the Florida panhandle near modern-day Tallahassee. Everything east of that line, Aranda declared, belonged to the United States, and everything west belonged to Spain. Jay simply pointed his finger at the Mississippi River to mark the western boundary.

Though strictly ordered by the Congress to “undertake nothing in the negotiations for peace without  their [French] knowledge and concurrence”, Jay immediately roused Franklin from his sickbed and convinced him that it was in the long-term interest of America that they disregard their instructions and negotiate a separate treaty with Great Britain without any consultations form France. Jay then proceeded to lead the negotiations with the British, making recognition of American independence and the Mississippi River as the western border the two non-negotiable demands.

When Adams came down from Holland, Jay had already composed a first draft of the treaty, and Adams recorded his stunned agreement with everything Jay had done, particularly the decision to bypass the French, stating that “Jay was of more importance than the rest of us, indeed of almost as much importance as all the rest of us together”.

As a delegate to the Continental Congress, Jay had sided with the moderates, supporting American grievances while searching for a road to reconciliation. It was only after it was clear that George III was committed to a military invasion that Jay stepped over the line to revolution. Like Franklin, he was late to the cause but all the most ardent once committed.

Early in 1777, as a leader of the provisional government of New York, Jay almost single-handedly wrote the New York constitution, which vested more power in the executive branch than any other state constitution. Jay remained a conservative revolutionary, who simultaneously embraced American independence and endorsed political structures that filtered popular opinion through several layers of institutionalized deliberation before it became law of the land.

Elected to the Continental Congress in 1778, Jay was almost immediately chosen to serve as president, largely because his peers viewed him as a man of principle who could be trusted even by those who disagreed with his principles. Though appointed to Congress to defend New York’s claim against Vermont, Jay determined that the large interest of the confederation would be best served by accepting Vermont into the union. Despite pressure from the New York legislature, he would not budge from his conviction that the whole needed to take precedence over the parts.

His ten month term as president of the Continental Congress convinced Jay that any coherent national policy was impossible within the confederation format. Even before Hamilton had gone public with his criticism of the government under the Articles, Jay had concluded on the basis of his experience in Congress that no state-based confederation could hardness the full energies of the American Revolution once the war ended. As he saw it, there were only two courses: stay on the current path and witness “the Diminution of our Respectability, Power, and Felicity” or create a government with sufficient powers to manage an ascendant American nation.

Jay was also the first to recognize that America’s prospects were inextricably linked to the huge landmass between the Alleghenies and the Mississippi River. In 1779, four years before Washington declared his vision of a continental American empire, Jay had a vision of his own: “Extensive wildnernesses, now scarcely known of exposed, remain yhet to be cultivated, and vast lakes and rivers, whose waters have for ages rolled in silence and obscurity to the ocean, are yet to hear the din of industry, become subservient to commerce, and boast villas, gilded spires, and spacious cities rising on their banks.”

The chief task for the foreseeable future was to manage westward expansion across the North American continent. And the very act of performing that task would require the members of the confederation to abandon their provincial perspectives in favor oaf a common goal that bound them together as an emerging nation with prospects as unlimited as the western horizon.

Only five days after Jay’s return from his diplomatic triumph in Paris, the delegates to Congress requested his services as minister of foreign affairs, asking Jay to do for American foreign policy what they had asked Robert Morris to do for fiscal policy. Though Morris’ heroic efforts eventually fell victim to the political provincialism they were intended to correct, there was reason to believe that Jay’s task would not meet the same fate. For, while the states could claim sovereignty over taxes, they could not possibly claim to exercise the same control over foreign policy, which by definition needed to speak with one voice.

It is a measure of Jay’s prestige that all the conditions he proposed to Congress were found acceptable, and, with the retirement of Morris, he became the most powerful person in the Confederation Congress.

Once Virginia ceded its claims to the Ohio Country, it was recognized that the sale of western lands could retire the entire national debt without resort to an impost. Beyond its fiscal value, it was important to define the values that would guide western expansion of the American empire. The Virginia delegation proposed the following principles: “The territory so ceded shall be laid out and formed into states containing a suitable extent of Territory not less than one hundred or more than one hundred and fifty square miles… and the states so formed shall be distinctive Republican States and admitted members of the Federal Union, having the same rights of Sovereignty, Freedom, and Independence as the other states.”

Those words were written by Thomas Jefferson; and, apart from his Declaration of Independence, were arguably the most historically consequential words he ever wrote, since they defined the political and legal framework that would shape American expansion across the entire North American continent for the next century. The result was the Ordinance of 1794, in all respects save one a thoroughly Jeffersonian document.

The flow of settlers over the Alleghenies was already threatening to become a flood, and the challenge was to channel it in accord with republican principles. For Jefferson, that meant westward expansion should benefit settlers rather than land speculators; that each new territory, once sufficiently populated by twenty thousand souls, should decide on what form of republican government it wanted; and, when its population matched that of the smallest state, it could apply for admission to the confederation.

In order to protect the core principles of the American Revolution in the westward expansion, Jefferson insisted that all hereditary titles and privileges would be repudiated and that slavery would end no later than 1800. Though it may have changed the entire course of American history if it had prevailed, the stipulation on slavery lost by one vote in Congress.

In one respect, Jefferson saw fit to modify his vision. His original formulation gave no role to the federal government in managing westward expansion, which Jefferson thought would occur naturally and freely, two primal Jeffersonian values, and initially he thought that land should be free. George Washington was the first to warn that this would lead to “Land Jobbers, Speculators, Monopolizers, or even with scatter’d settlers inconsistent with the wisdom and policy which our true interest dictates”. Such unregulated diffusion would incite Indian wars and create further confusion over land patents, with some settlers moving so far west that they might repudiate American citizenship and seek support form foreign powers.

Washington preferred that the westward flow of population assume the shape of a concentrated wave of “progressive seating” rather than a free-floating gush. This required the Ordinance of 1785, which organized the western lands into townships of thirty-six square miles that would be surveyed and sold for no less than a dollar an acre, with Indian treaties being negotiated in advance of the surveyors. The treaties signed with the Six Natins, the Cherokees and the Ohio tribes were all one-sided affairs that treated the Native American population as “a conquered people” who should be grateful to be consulted at all. But, in contrast to the European style of imperialist expansion, this approach created at least the appearance of mutual consent. It was assumed that demographic expansion would do the work of armies and force the Natives to abandon their historic lands or to dwindle to insignificance.

Thus it was hoped that the imperatives of westward expansion, a sort of domestic foreign policy, would require a single national voice and replace the imperatives of war to unify the disparate voices of the states. But indifference continued to plague the Congress. which often found it could not muster a quorum to make any decisions.

When asked by a Dutch nobleman about his opinion of the current Amercan government, Jefferson bemoaned that: “The members of Congress are no longer, generally speaking, men of worth or distinction. For Congress is not, as formally, held in respect; there is indeed a dread of its power, though it has none”.

Benjamin Harris, the governor of Virginia, concurred, observing that the very survival of the Congress “seems to be problematical”. Like Jefferson, Harrison looked back to better days “when the eyes of the world were upon us, and wer were the wonder and envy of all, [whereas now] we are sinking faster in esteem than we rose” and European nations were waiting “like buzzards to feast on the spoils of our demise”.

Washington worried about the inherent inability of the Congress to supervise the integration of the western domain into the confederation, which he regarded as the great project that would decide whether such a thing as union would endure. His great fear was that North America would become a version of Europe, a collection of coexistent sovereignties rather than a coherent nation of its own.

Washington understood that the emergence of an American nation required the existence of a national government that did not exist, and regarded this as a failure of will and a fundamental misunderstanding of what the American Revolution intended – perhaps the greatest lost opportunity in history.

From the start of his tenure, Jay assumed that he possessed sweeping powers over American foreign policy, much as Robert Morris had assumed over fiscal policy. Lurking beneath that assumption was the even grander presumption that his role as de facto secretary of state would contribute to an inevitable evolution from an American confederation to an American nation.

“Our federal government is incompetent to its objects,” he explained to Adams, “and so as it is in the Interest of our Country, so it is the Duty of our leading Characters to Cooperate in measures for enlarging and navigating it.

While most critics of the Confederation Congress wanted specific reforms, chiefly the authority to make its tax requisitions mandatory, Jay wanted the Articles replaced.

“It is my first wish to see the United States assume and merit the character of one great nation, whose territory is divided into different states merely for more convenient government, and the more easy and prompt administration of justice, just as our several States are divided into counties and townships for like purposes. Until this be done, the chain which holds us together will be too feeble to bear much opposition or exertion and we shall be daily mortified by seeing the links of it give way.”

Jay assumed that Spain was doomed as an imperial power in North America, and he also assumed that the current confederation was a mere way station on the road to full-blooded American nationhood. Both of his heady prophecies proved correct in the long run, but were highly problematic at the time.

This was made painfully obvious at the outset when Jay sent a letter to all the governors, requesting that they forward all correspondence relating to foreign policy to him so that he might consolidate diplomatic efforts in his office. Few of the governors responded and none complied.

Every Jay initiative. based on the assumption that foreign policy would force the confederation to recognize a collective responsibility that cemented the union, had become an unmitigated failure.

Jay’s final failure, ironically, involved the Mississippi, whose course he had so successfully negoatiated in Paris as America’s western boundary. A new Spanish ambassador declared that Spain was closing the southern Mississippi to American traffic. Though Congress had instructed Jay to regard American navigation rights as non-negotiable, Jay secretly worked out a compromise which would give American trade preferential status in Spain in return for ceding rights that would not be needed for decades. This was far preferable to another war which America had not the army or funds to execute.

When Jay presented the treaty to Congress in the summer of 1786, the reaction was thoroughly split sectionally. The northern states, which would gain from the increased trade, supported it, while the southern states saw it as an affront to their sovereignty and conjured a conspiracy of the northern states.

The Mississippi Question deepened Jay’s despondency about the fate of the Confederation Congress, which he now regarded as a political arena in which the states came together to display their mutual jealousies, almost a laboratory for the triumph of parochialism and provincialism.

Jay shared his diagnosis with Adams, his former colleague in Paris, who he knew would agree with him:

“I have long thought and become daily more convinced that the Construction of our federal Government is fundamentally wrong. To vest legislative, judicial, and executive Powers in one and the same Body of Men, and that too in a Body daily changing its members, can never be wise. In my opinion these three great Departments of Sovereignty should be forever separated, sand so distributed as to serve as checks on each other.”

Given the current political context of the Confederation Congress, there was not the slightest possibility that such a fundamental reform would occur from within. It followed logically, then, that root-and-branch reform was necessary, and that the leadership for such a movement must come from outside the currently gridlocked Congress.

Jay also wrote to Washington, suggesting that the looming crisis might require his reappearance on the public stage. Washington agreed wholeheartedly with Jay’s analysis of the problem, but not with his solution. As he had been skilled at deciding when to advance against the British and when to wait, Washington thought it too soon to wage a winning battle for nationhood.

The Courting

The first reform proposal to find its way into the historical record came from Alexander Hamilton in July 1783, when he was serving as a delegate in the Confederation Congress. A few weeks later, he drafted a resolution calling for a convention to amend the Articles, which was never even debated in Congress and, as Hamilton scribbled at the end of his draft, “abandoned for want of support”.

Over the course of the next two years, several proposals calling for a convention to revise the Articles were floated through Congress, one by Madison emphasizing the need for federal control over commerce, another by Charles Pinckney of South Carolina prompted by the sectional split over the Mississippi Question. None of these proposals were as specific or sweeping as Hamilton’s, but they all met the same fate.

In January 1786, Congress approved a convention at Annapolis to discuss the rules governing interstate commerce. Madison called it an experiment in small-scale political reform. “If it succeeds,” he wrote to Monroe, “it can be repeated as other defects force themselves on the public attention, and as the public mind becomes prepared for further remedies.” Then he added, “I am not in general an advocate of temporizing or partial remedies; but rigor in this respect, if pushed too far, may hazard everything.”

Both Madison and Hamilton were appointed as delegates to the convention, but only five states showed up (Virginia, New York, Pennsylvania, Delaware and New Jersey). All the delegates could do was meet and then adjourn.

The state legislatures were staunch opponents of any federal government that challenged their sovereignty, and that inchoate congregation called “the people” were indifferent to any political project that required them to think outside their own local orbits.

Hamilton rose to declare that there was a prevailing sense that the confederation was on the verge of dissolution and reforms were necessary “to render the constitution of the Federal Government adequate to the exigencies of the Union.” In a display of almost preposterous audacity, Hamilton claimed there was unanimous support within the Annapolis delegation for “a future Convention” with a roving mandate to address all the most salient issues, scheduled to meet in Philadelphia on the second Sunday in May 1787.

The certainty of failure of such a grand plan became somewhat less clear because of a discernible shift in the political atmosphere in the fall of 1786. Shay’s Rebellion of Massachusetts farmers and revolutionary veterans who took up arms to protest the tax increases and foreclosures that the state was using to pay off its war debt. The insurgency was quickly put down by a privately-funded state militia army, but initial reports greatly exaggerated the size of the revel force and the scale of its political agenda.

In stead of a few thousand, the gossip mills in the Confederation Congress imagined a revel force of twenty to forty thousand with plans to secede from Massachusetts. Madison and other delegates believed the plan was instigated by the British Empire, and he stated this “furnished new rpoofs of the necessity of such vigour in the Genl. Govt. as will be able to resore health to any diseased part of the federal body”.

Washington, as well, viewed this incident as proof that “mankind left to themselves are unfit for their own government” and bemoaned that the “great body of people can be so evenloped in darkness”. Both Madison and Washington had been warning for so long that the confederation was on the verge of collapse, that they were prone to imposing their verdict on whatever crisis appeared. Those other reform advocates who urged waiting until the fruit was ripe before picking, saw that time as more imminent.

Prophesies of dissolution were supported by the New England press which opined that the attempt at a national union was so obviously a failure that the only solution was a union of the five New England states, “leaving the rest of the continent to pursue their own imbecilic and disjointed plans”.

Jay had already alerted Washington that he had a crucial role to play if and when some crisis forced a choice between political dissolution and some new version of national union, Madison had insisted that Shay’s Rebellion constituted that crisis, Hamilton had boldly and unilaterally proposed a date for a convention to consider major overhaul of the Articles – and all these efforts happened separately, without collusion, but shared a common conviction that the full promise of the American Revolution was being betrayed. This was in spite of the fact that resistance to any coercive version of government power could claim to be the central impulse of the Revolution.

What brought these men together in the last months of 1786 was the common recognition that one man possessed the potential to transform the improbable in the inevitable. If the attempt to reform – or better yet, to replace – the Articles was to levitate above the lethal combination of entrenched parochialism and studied indifference, it had to be led by the same man who, against all odds, had won the war for independence. Thus began the courting of George Washington.

The Confederation Congress, endorsing Hamilton’s proposal, passed a resolution authorizing the state legislatures to appoint delegates to attend a convention in Philadelphia to revise the Articles.

While most of the state governments regarded the status quo as wholly acceptable, and any enhanced authority at the federal level both threatening and unnecessary, within the Congress there was an emerging sense that reform was probably necessary in order to ensure the survival of the confederation.

The lack of a quorum delayed the vote on the bill for two months, but Madison wrote Washington on November 8, 1786, while the bill was pending, to inform him that history was about to happen:

“We can no longer doubt that the crisis is arrived at which the good people of America are to decide the solemn question, whether they will reap the fruits of the Independence….and of that Union which they have cemented with so much of their common blood, or whether by giving way to unmanly jealousies and prejudices, or to partial and transitory interests, they will renounce the auspicious blessings prepared for them by the Revolution, and furnish its enemies an eventual triumph.”

Madison thereby framed the issue as the ultimate arbiter of Washington’s legacy. And Madison claimed to know on good authority that Virginia, the largest state, intended to take the convention seriously, and appoint a seven-member delegation with Washington’s name at the head of the list.

Washington had deflected Jay’s earlier probe the previous spring by agreeing that the issues were huge but firmly refusing to abandon his role as the American Cincinnatus, permanently retired at his beloved Mount Vernon. “Yet having happily assisted in bringing the ship into port,” he explained to Jay, “and having been fairly discharged, it is not my business to embark again on a Sea of Troubles.”

Washington was feeling his mortality, and offered excuses to Madison, who in turn suggested that “at least a door could be kept open for your acceptance hereafter, in case the gathering clouds should become as dark and menacing as to supercede every consideration but that of our national existence and safety”.

Jay rejoined the campaign to lure Washington out of retirement in January 1787 with a long letter arguing that nothing less than root-and-branch reform would do and, as in 1776, it was time for leaders to step forward. This patriotic message harmonized with the notes Washington was hearing from several quarters. Edmund Randolph from Richmond argued “that those who began, and carried on & consummated the revolutionj, can yet rescue America from impending ruin”. Madison argued that allowing Washington’s name to stand for the present atop the list of Virginia delegates would at least insure robust attendance at the convention in May. Meanwhile, Madison was spreading the word behind the scenes that Washington was on board and, at the same time, conferring privately to have Benjamin Franklin appointed as chair of the convention of Washington backed out.

Despite what had become a multilayerd series of defense mechanisms, Washington was vulnerable to entreaties from Jay and Madison because he was on record, at least privately, advocating precisely the political agenda they were now proposing. In fact, Washington acknowledged that “No Man in the United States is, or can be, more deeply impressed with the necessity of reform in our present Confederation than myself.”

“We are either a United people or we are not. If the former, let us, in all matters of general concern act as a nation… If we are not, let us no longer act a farce by pretending to it.”

Washington was, in truth, the most nationalistic of the nationalists, because he had invested more than anyone else in making the American Revolution succeed, and he had concluded during the course of the war that success entailed a consolidated national government capable of managing the states.

The crucial question was whether now was the time to invest his enormous prestige in a cause that, at least as he saw it, might very well repeat the fiasco at Annapolis. He consulted Henry Knox, his old artillery commander, framing the issue along the lines of a military decision: Should we risk battle, or avoid a fight until the strategic situation improved? As Knox saw it, the state delegations to Philadelphia were likely to be divided into three factions: conservatives, who wished no change at all; moderates, who wished only modest revisions in the Articles; and radicals, who wished a major transformation into an energetic national government. Only if the latter group was likely to prevail should Washington join the battle, and that outcome was unpredictable.

Washington’s private secretary, David Humphreys, a former aid-de-camp, warned that Washington would risk his legacy should the effort in Philadelphia fail. Madison, who was tallying state delegates to the convention, determined that a quorum would be present, that only Rhode Island would fail to show up, and that most of the opponents of reform had decided to boycott, thereby assuring that the debate would be confined to moderates and radicals, and that thoroughgoing reform was at least realistic if not assured.

Knox altered his advice in mid-March on the basis that attendance at the convention would be more robust than he had expected, and he suggested to Washington that a major reform with his signature would doubly ensure his legacy as “the Father of Your Country”. By late March, Washington put aside his reservations and decided to join the Virginia delegation, insisting to Madison that the goal must be to replace the Articles, not simply revise them.

Once Washington had agreed to assume the role, Jay and Madison, soon joined by Hamilton and Knox, formed an informal council of advisors to give Washington a tutorial on political theory and a basic vocabulary in republican government.

The preferred framework for the new government, as Jay saw it, was the tripartite model embodied in most of the state governments: executive, legislative, and judicial branches. The executive branch would generate the greatest opposition, as would the debate over the seat of sovereignty. Jay and Madison believed the national government should have a veto over all state laws. If the veto proved impossible, at artful finesse might be that sovereignty was located in “the people”. Madison predicted that the big fight would be on the question of representation in the legislature, and knew that a successful outcome depended on the rejection of the state-based system in the Articles, because only a Congress that reflected the population as a whole could claim to be a national government.

On the sovereignty question, Madison suggested a more ingenious solution, which was to abandon the belief that it must be singular and indivisible: “I have sought for some middle ground, which may at once support a due supremacy of the national authority, and not exclude the local authorities when they can be subordinately useful.” While sovereignty in “the people” might do on a rhetorical level, in practical terms some version of shared sovereignty that blurred the lines was preferable. Madison was suggesting what came to be known as “federalism”, a system of government in which sovereignty was a matter of on-going negotiations between the state and federal governments, imposing a national grid while leaving room for regional, state and local loyalties to remain relevant.

This was Madison’s fallback position which he was prepared to share with Washington in confidence and then vigorously oppose during deliberations in Philadelphia. He would embrace it again during the ratification debates of 1878-88, once the delegates at the Constitutional Convention rejected his more radical position.

Madison, unlike Washington and Hamilton, had not served in the Continental Army (he was small and frail and often sickly). And, unlike Jay, had not served overseas trying to represent a nation that did not exist. As a member of the Virginia aristocracy, Madison was slow to let go of his local loyalties and embrace a nationalist perspective, but as a member of the Confederation Congress became more and more convinced that reform and, later, revision was necessary to prevent the collapse of the union.

While Washington gave the convention its prestige, the “remedy” was Madison’s department. And one would be hard pressed to find anyone else on the planet with his unique combination of political savvy, psychological intensity, and cerebral power. This would be his finest hour.

Madison’s Moment

While Madison earned a reputation as one of America’s preeminent political philosophers, it was his political savvy and tactical acuity which allowed him to act as a skilled lawyer preparing his case.

Unlike a detached philosopher, Madison drew conclusions that were politically preordained, and as he sifted through the piles of evidence, he was not searching for truth so much as building a case in preparation for the looming debate in Philadelphia. The only acceptable verdict was a clear shift in sovereignty from the state to the national level.

Madison had promised Washington that nothing short of radical change was worth their effort, and in April he reassured Washington that he remembered that pledge. “Radical attempts, although unsuccessful, will at least justify the authors of them.” He was going to Philadelphia prepared to defend fundamental reform, he insisted, “on a take it or leave it basis”.

But a small crack appeared in Madison’s otherwise nonnegotiable agenda. Once the all-important principle of federal sovereignty over the states was accepted, he was prepared to be gracious in victory, endorsing a “middle ground” that allowed state governments, which he called “local authorities”, to remain in force “as far as they can be subordinately useful”.

As he explained in a letter to Edmund Randolph, governor of Virginia, there were two principles Madison was prepared to defend to the death, because both were essential for the survival of a viable national government. The first was proportional representation by population in both branches of the legislature, since nothing else would permit the Congress to speak for the American people as a whole. The second was an executive veto over all state laws, though this conjured up the arbitrary power of King George III.

Apart from New York, where Governor George Clinton was working to block the selection of John Jay as delegate to Philadelphia, the state delegates seemed to be evenly divided between radicals and moderates. The status quo defenders were largely boycotting the convention.

Jefferson had sent Madison several crates of books from Europe that represented the most up-to-date wisdom in the intellectual tradition soon to be called the Enlightenment. Madison picked through them for arguments to support his contentions.

The first of those was that the history of confederacies were tales of temporary stability, usually based on a political alliance against a common enemy that eventually dissolved into civil war, anarchy and political oblivion. The second was that the catalog of political failures under the Articles, which he titled “Vices of the Political System of the United States”, demonstrated the same inherent inadequacies which plagued all European confederacies. This litany of failures went on for thirteen pages.

The third argument had to contradict Montesquieu’s assertion that republican governments can function only in small geographic areas like Greek city-states and Swiss cantons. He intended to attack this by the recent historical record, showing how the state governments created during the war had failed to meet their troop quotas and financial obligations, prolonging the conflict by several years and putting the outcome at risk. Smallness in size facilitated smallness in thinking which had almost proved fatal to the cause of independence. The much-vaunted intimacy between elected representatives and their constituents, it turned out, had a deplorable downside, a consequence of the prevalent provincialism and localism within the states.

In Madison’s critical assessment of state government lay a discernible anti-democratic ethos rooted in the conviction that political popularity generated a toxic chemistry of appeasement and demagoguery that privileged popular whim and short-term interests at the expense of the long-term public interest. Though this would later be considered elitist, he harbored an eighteenth century sense that unbridle democracy was incompatible with the political health of a republic.

The second part of his argument was that large republics were actually more stable and politically accountable than small ones. As he put it in Vices, a large republic produced “a greater variety of interests, of pursuits, of passions, which check each other”. This meant that the central fear of confederationists – that a consolidated national government would tend toward tyranny – was misguided because the interaction of interest groups in a large republic would prove self-regulating, making a coercive federal government unnecessary.

This inspiration, expressed most clearly in Federalist 10, was one of the earliest expressions of a pluralistic vision of modern politics. Madison may have been influenced by reading Adam Smith’s The Wealth of Nations (1776), which provided a similar economic argument in the self-regulating character of a laissez faire marketplace. But, in truth, Madison harbored no desire to make a contribution to modern political science. His primary goal was to win the argument for a new constitution.

Madison was implicitly arguing that the meaning of the American Revolution had to be revised. The Spirit of ’76 had served its purpose in justifying American independence, he thought, but it was now an anachronism because it stigmatized any energetic projection of political power as inherently tyrannical. There needed to be a second founding, establishing a national political framework capable of functioning on a much larger scale without threatening the hard-won liberties of the first founding. The federal government must become “us” rather than “them”. One might credibly call this change a second American Revolution.

Madison’s third area of concern was about language and vocabulary – how to talk about the principle of representation in a large republic. There were no precedents. The fundamental change that made the war for independence possible was the notion that political power flowed upward from the people, not downward from heaven. But experience both during and after the war showed that any romantic descriptions of “the people” were delusional fabrications, just as far-fetched as the divine right of kings.

Madison’s experience had convinced him that “the people” was not some benevolent, harmonious collective, but rather a smoldering and ever-shifting gathering of factions or interest groups committed to provincial perspectives and vulnerable to demagogues with partisan agendas. The question became: How could a republic founded on the principle of popular sovereignty be structured in such a way as to manage the inevitable excesses of democracy and best serve the long-term public interest?

Madison’s answer was “filtration”. He may have gotten the idea from David Hume’s Idea of a Perfect Commonwealth (1754). Ordinary voters would elect local representatives, who would elect the next tier of representatives, and so on up the political ladder in a process of refinement that left the leaders at the top connected only distantly with their original electorate and therefore free to make decisions that might be unpopular. A republic with  this filtration scheme was a political framework with a democratic base and a hierarchical superstructure that allowed what Madison described as “the purest and noblest characters” to function as public servants rather than popular politicians.

Some semblance of filtration was already embodied in state constitutions, and Jefferson – the most democratically inclined of the founding generation – implicitly accepted this principle, acknowledging “a choice by the people themselves is not generally distinguished for its wisdom”.

No record of the Virginia delegation caucuses in the City Tavern remain, but it’s likely that Madison used the time to convince a reluctant Mason and Randolph to endorse his strategy for a fully-empowered federal government, even though it would put Virginia’s supremacy at risk, because Washington had made it known that his continued presence in Philadelphia was contingent upon its adoption, and without Washington the entire enterprise was surely doomed.

Prior to the convention, the Virginians were joined by two prominent nationalists from the Pennsylvania delegation, Gouverneur Morris and James Wilson, who were both destined to play crucial roles during the ensuing months. Morris rose to speak, peg leg and all, more often than any other delegate and had greater influence on the final wording of the document than anyone else. With the exception of Hamilton, who arrived late, all the prominent advocates for replacing the Articles spent a week together, planning on how to set the agenda for the convention.

The fruit of their clandestine labors was the fifteen-point Virginia Plan, which proposed the creation of a tripartite government modeled on the state constitutions, with an executive branch, a bicameral legislature, and a judiciary. Unlike under the Articles, it was designed and intended to function as a government representing the American citizenry, rather than the states.

Since both branches would be allocated by population, Madison got all that he wanted on the issue of representation. He got most of what he wanted on the executive veto, with the power vested in an executive council (modeled after Jay’s language in the New York constitution) that included federal judges. The issue was settled: sovereignty was to be shifted from the states to the federal government.

For defenders of the status quo, the Virginia Plan represented a second coup, the first being the calling of the Constitutional Convention. But, since no one on the moderate side had come up with equivalently clear alternatives, the Virginia Plan commanded the field by default. The critical victory was sealed on May 30, when a majority of the delegates endorsed the resolution, proposed by Gouverneur Morris, “for a national government…consisting of a supreme legislature, executive and judiciary”. The national agenda was firmly in the saddle and Washington, as everyone expected, stepped forward to chair the convention.

Only seven states were present for the vote, as the New England delegations had not yet arrived, and it is unlikely that the resolution would have achieved a majority if all were present. But at no time were all fifty-five delegates present at the same time during that summer, and this most momentous gathering was an ever-shifting body of men with different degrees of commitment. In this context, the nationalists were better organized and arguably more committed to the outcome.

But victory was never assured. On the second day, a procedural motion was made without opposition that the one-state-one-vote principle enshrined in the Articles would continue to apply in the convention. This could allow the small states to block any national initiative. This created a climate in which the nationalists would have to make concessions to the confederationists and the salient question of federal versus state sovereignty could not be resolved, only conveniently obscured .

Two other procedural decisions would have an abiding influence on the deliberations and the way they would be regarded by posterity. The first was that absolute secrecy must prevail, including in private correspondence, to allow the freer exchange of ideas. The second was powerfully symbolic, in that the venue chosen for the convention was the EAst Room of the Pennsylvania State House, which was the same room in which the Declaration of Independence had been debated and signed.

By placing the second revolutionary conclave in the same room as the first, the delegates, knowingly or not, assured that whatever they produced would be seen as a continuation, rather than a rejection, of “the spirit of ’76”.

The fifty-five delegates were surprisingly young – average age of 44 – and disproportionately wel-educated. Twenty-nine had college degrees, and the same number had studied law. Their educational backgrounds were more conspicuous than their wealth, making them more an intellectual than an economic elite. Thirty-five had served as officers in the Continental Army, and forty-two had served in the Continental or Confederation Congress. The latter meant that a sizeable majority of the delegates had had intimate experience with the inadequacy of the Articles as a makeshift government, during and after the war.

For the next fifteen weeks, from May 25 to September 17, an ever-shifting collection of delegates from twelve states (Rhode Island was boycotting) met mostly in a committee-of-the-whole, though also in smaller committees and private settings, in which the arguments were heard and minds were changed. Later spiritual and economic interpretations of the event missed the point.

The correspondence of the most prominent nationalists on the eve of the Convention make it abundantly clear that Madison, Washington, Hamilton, and Jay, as well as Gouverneur Morris and James Wilson, had their eyes on the future of an emerging nation. For six years, the Articles had claimed to embody the core principles of the American Revolution. The nationalists were making an argument that American independence had been the mere start of a political process that now had to continue to its full potential. No less a figure than Washington fervently believed that failure to create a sovereign national government would represent a repudiation of everything he had fought for. What was at stake is what the Revolution meant, or had come to mean.

One ghost at the Convention – monarchy – made Madison’s proposal for an executive veto dead on arrival. The debate over executive power took up more time and energy than any other issue. The Virginia Plan proposed only that the executive was to be chosen by the national legislature for an indeterminate but limited term. That would have made the United States a parliamentary system. Instead, the deliberations of the delegates invented that strange thing called the Electoral College.

The other ghost was slavery, which was simultaneously omnipresent and unmentionable. As slavery was deeply embedded in the economies of all states south of the Potomac River, no political plan which questioned that “peculiar institution” had any prospect of winning approval. Madison, himself, saw the primary division among the state delegations as between “having or not having slaves”. The compromise was to avoid any direct discussion of the divisive issue and to use euphemisms when the topic forced itself into the agenda. The two most explicit decisions implicitly endorsing slavery were the agreement to count slaves as three-fifths of a person for the purposes of representation in the House, and a prohibition against ending the slave trade for twenty years. There was a general recognition that slavery was a cancerous tumor in the body politic and yet a malignancy so deeply embedded that it could not be removed without killing the patient.

The crescendo moment in the convention occurred in mid-July, when Madison, having abandoned his insistence on the presidential veto, was faced with the certainty of failure if he held fast to his goal of proportional representation in both houses, as the small states had the voted to block this proposal. Washington also expressed grave concerns about the impasse to Hamilton, who had left the convention to attend a meeting in New York, and Franklin, America’s most famous deist, rose to suggest a chaplain leading a prayer prior to deliberations.

On July 16, both Madison and Morris delivered passionate pleas for proportional representation in both branches of Congress, but the vote went for the Connecticut Compromise, which split the difference, making representation proportional in the House and state-based in the Senate. Both Madison and Washington interpreted the compromise as a devastating defeat, because the principle of state sovereignty had been qualified but not killed. The new political framework would leave the all-important sovereignty question inherently ambiguous. Given the diversity of opinions on the matter, Washington believed that it was probably the best that could be obtained at the time.

The vote reflected the embryonic nature of American nationalism, and created a political system that was a work-in-progress. National aspirations had always been far ahead of popular opinion, and the nationalists had to learn that leadership sometimes required slowing down for stragglers to catch up. Better a confederated nation than a mere confederation. Better still was a constitution which created the framework in which the question of federal versus state sovereignty could be clarified incrementally over time, even if never completely resolved.

Madison is customarily recognized as “Father of the Constitution”, and there are sound reasons why he merits that recognition. But as the convention concluded, he felt he had lost all the major battles. Madison should share the title with Gouverneur Morris, who was the only delegate to speak more frequently than Madison and was the most forceful advocate for the national vision. While the Constitution was the creation of many hands, Morris was the man who actually wrote it. Perhaps most importantly, Morris revised the preamble to the document, changing “We the people of the states of… to We the People of the United States”. This may have been the most consequential editorial act in American history, the political equivalent of Madison’s bold decision to impose a national agenda at the start.

But the final word went to the oldest and most venerable delegate to the convention, who captured with perfect pitch the mood of the moment. Benjamin Franklin, at 81, attended every session, carried on an elaborate sedan chair, with most of his comments read by James Wilson.

On the last day of the convention, Franklin had these remarks delivered by Wilson:

“I confess that I do not entirely approve this Constitution at present, but Sir, I am not sure that I shall never approve it… In these Sentiments, Sire, I agree to this Constitution, with all its Faults, if they are such; because I think a General Government necessary for us… I doubt too whether any other Convention was can obtain, may be able to make a better Constitution… It therefore astonishes me, Sir, to find this System approaching so near to Perfection as it does; and I think it will astonish our Enemies, who are waiting with Confidence to hear that our Councils are Confounded, like those Builders of Bable, and that our States are on the Point of Separation, only to meet, hearafter, for the Purpose of cutting one another’s throats. Thus I consent, Sir, to this Constitution because I expect no better, and I am not sure that it is not the best.”

Franklin’s eloquent elegy served to remind those nationalists who believed they had failed that perfection was never in the cards, and that they had, in fact, designed the framework for a government that assumed human imperfection. The issues of sovereignty and slavery were at that time irresolvable, but the Constitution created a framework within which the arguments could continue.

The Great Debate

“When the transient circumstances and fugitive performances which attend this crisis shall have disappeared, that work (the Federalist Papers] will merit the notice of posterity, {because it] identified the principles underlying our noble experiment in permanent and classical form.” – George Washington to Alexander Hamilton, August 28, 1788

Until the fall of 1787, the transition from a confederation of sovereign states to a nation-size republic had been instigated and managed by a quartet of prominent figures – Hamilton, Jay, Madison and Washington. During the summer of that year, the list of leaders expanded, broadly speaking, to include all thirty-nine delegates who signed the Constitution. There were also several delegates who played a significant role in influencing the eventual shape of the final document, chiefly George Mason and Edmund Randolph, who harbored reservations that prevented them from signing; but the other key signers who most influenced the outcome were Gouverneur Morris and James Wilson, who might be regarded as significant supporting actors in the national story.

Until September 1878, however, control over the debate about the future identity of the constellation of states called the United States had rested with a political elite, that had forced a conversation about the meaning of the American Revolution that otherwise would not have happened.

Starting in the fall of 1787 and continuing until the summer of 1788, this ongoing story entered a new chapter, which Madison declared the most important chapter of all:

“Whatever veneration might be entertained for the body of men who formed our constitution, the sense of that body could never be regarded as an oracular guide in…expanding the constitution. As the instrument came from them, it was nothing more than the draught of a plan, nothing but a dead letter until life and validity were breathed into it, by the voice of the people, speaking through the several state conventions. If we were to look, therefore, for the meaning of the instrument, we must look for it not in the general convention which proposed, but in the state conventions.”

While the vast majority of American political leaders harbored a profound skepticism about the virtues of unbridled democracy, they all recognized that any credible American republic must be based on a popular foundation (even though Madison, himself, did not believe that such a thing as “the people” existed). This was the moment when ordinary citizens assumed control of the debate, selecting delegates to state ratifying conventions for what would be a national referendum on the proposed Constitution.

Such a vibrantly democratic moment had happened once before, in the summer of 1776, when a resolution of the Continental Congress requested each colony to revise its colonial charter into a state constitution. This became a de facto referendum on independence throughout all the towns, villages and hamlets up and down the Atlantic coast, and it produced a landslide verdict for secession from the British Empire.

In 1776 the issue had been independence. In 1878-88 it was nationhood. Partly because the process was drawn out for eight months, and partly because the American electorate was more divided on nationhood than it was on independence, the arguments that ensued in the ratifying conventions, town meetings and family parlors from Maine to Georgia were spirited if not ferocious. This was the greatest political debate in American history.

Because the vast majority of the American populace had been wholly oblivious to the secret conversations occurring in Philadelphia, the publication of the Constitution was a dramatic and traumatic event for which they were unprepared.

Just as it had been in 1776, however, the range of options was severely circumscribed: with revision of the Articles off the table, it was, in effect, a take-it-or-leave-it decision. The choice was confederation or nation. The people must have their say, but their vote must be either aye or nay.

The opponents of ratification, to be sure, attempted to defy the up-or-down option, and Patrick Henry of Virginia led the opposition by arguing delegates “to adopt, reject or amend the proposed Constitution”. Advocates of the Constitution successfully insisted on removal of the word “amend” – the chief tactical goal of the nationalists was the refusal to permit critics to make ratification conditional on amendments.

The nationalists benefited by three additional advantages. The Confederation Congress forwarded the Constitution to state governments unanimously, which many misinterpreted as unanimous endorsement of the document rather than of the ratification process. Second, ratification became more likely when the Congress accepted Article VII of the Constitution which stipulated that the new government would go into effect after nine states ratified. Technically, this was an illegal provision, since the Articles required a unanimous vote for any amendments. Knowing that unanimity would be suicidal, given Rhode Island boycotting the convention, the delegates simply decided on their own that nine states constituted a sufficient consensus, perhaps drawing on the provision in the Articles requiring nine votes for all major legislation.

Madison was the first to recognize the hidden advantage of the nine-vote provision. He predicted that nine states would ratify and that “consequently the tardy remainder must e reduced to the dilemma of either shifting for themselves or coming in without any credit for it”. The chronological sequence of the state conventions enhanced this momentum factor, as two of the largest states with formidable opposition – New York and Virginia – came late in the schedule.

Finally, before the debates began, the advocates for ratification won the rhetorical battle by claiming the title Federalists, which left their opponents with the limp label Antifederalists. Both sides were really federalists, the difference being in how they wished to apportion authority between the federal government and the states. (A more accurate designation would have been nationalists and confederationsists.) It also helped that the press was decidedly pronationalist.

The cause of the Antis was further burdened by the fact that they could not agree on an alternative to the Constitution. Was it a more modest reform of the Articles, amendments to the proposed Constitution,  or a second Constitutional Convention that would consider their grievances? As they agreed on what they were against but not what they were for, Antis was accurate in that regard.

The advantage of the Antis lay in the fact that the proposed Constitution required a fundamental political and psychological shift in the meaning of the American Revolution. With crucial exception – popular representation in Congress – all the arguments made against Parliament and the king in 1776 applied equally to the government created by the Constitution in 1787. Given the local orientation of most Americans, the Constitution was proposing the creation of a strange new world that defied their limited horizons.

Given that the enemies of ratification were speaking for the original impulse of the American Revolution, they should have enjoyed a clear political advantage, but for the fact that the framework of the debate had been controlled by a small group of nationalists who were represented in most of the state conventions.

In spite of the advantages of the nationalist argument, Hamilton and Jay went on the offensive in New York. Madison was temporarily paralyzed by the exhausting work of the Philadelphia convention and his sense that he had failed in the most important elements of a fully-empowered national government. But, once the Great Debate had begun and the states began to elect their delegates, and the newspapers teemed with opinions on the document, Madison regained his balance.

It gradually dawned on Madison that, if he had achieved all he wanted in Philadelphia, the prospects of ratification would have been remote at best. In an extraordinary letter to Jefferson in late October 1787, he shared the true nature of what the Constitutional Convention had achieved: “To draw a line of demarcation which would give to the General Government every power requisite for general purposes, and leave to the states every power which might be most beneficial to them.”

Left unsaid was that no one knew where that line was drawn or what “general purposes” meant. The key insight  might be called the beauty of ambiguity that deliberately blurred the sovereignty question. As Madison then realized, the Constitution created a federal structure that moved the American people toward nationhood while retaining an abiding place for local and state allegiances. In the long run, and this was probably Madison’s most creative insight – the multiple ambiguities embedded in the Constitution made it an inherently “living” document. The Constitution was intended less to resolve argument than to make argument itself the solution. Madison’s “original intention” was to make all original intentions infinitely negotiable in the future.

The most common criticism of the Constitution was that it lacked a bill of rights, and Madison proceeded to invent many elaborate reasons for the omission. But the simple truth was that the delegates in Philadelphia were exhausted by the summer of 1787 and by September they just wanted to go home. Madison began counting votes in the state conventions  and realized that the strategy would have to be to secure nine states before Virginia and New York had a chance to meet.

timeline-of-ratification

In the end, not a single state refused to ratify, and majorities in seven states were overwhelming. In that sense, the Great Debate produced a resounding vote for American nationhood. But the votes in the largest states – Massachusetts, New York and Virginia – were extremely close. A clear majority opposed ratification in New York, North Carolina and Rhode Island, which grudgingly came along late in the game, after the nine-vote quota had been reached.

The insistence on amendments in six of the states reflected a deep dissatisfaction with the all-or-nothing terms of the debate. A near-majority in Massachusetts and Virginia, and a large majority in New York, North Carolina and Rhode Island preferred their ratification to be conditional on adoption of their amendments in a second convention.

Ratification, then, represented not so much the consensus of the American people as the triumph of superior organization, more talented leadership, and a political process that had been designed to define the options narrowly. Despite the built-in advantages of the pro-ratification side, it was still a close call.

What the votes obscure is that the ratification debate in each state was driven by local and state concerns that were maddeningly diverse, thoroughly provincial and utterly oblivious to the larger issues at stake, as the vast majority of delegates simply did not know how to think beyond their local horizons. In states such as Massachusetts, where Mainers and Western Shaysites believed that ratification would undermine their local prospects, a narrow margin of victory was made possible by John Hancock’s suggestion – subsequently copied by five other states – that delegates would first vote on ratification and then vote on recommended amendments. In the end, six states submitted 124 proposed amendments, most of which were intended to impose restrictions on federal authority.

The same men who had instigated the calling of the Constitutional Convention, recruited Washington to the task, and imposed the national agenda in Philadelphia, took the lead in attempting to orchestrate the ratification process. Between November 1787 and March 1788, Hamilton (51), Madison (29) and Jay (5), wrote eighty-five essays under the common pseudonym Publius, entitled the Federalist Papers. It was a project conceived by Hamilton, who recruited Jay and Madison to the task. Over the ensuing centuries, the Federalist Papers  have assumed the stature of an iconic text, the classic expression of the great deliberation about the viability of a nation-size republican government.

This reputation is both unwarranted and misleading. The Federalist Papers were, in fact, perhaps the supreme example of improvisational journalism, composed against deadlines without much time for deliberation. Madison claimed he was making changes as the printer set the type. Hamilton, whose prodigious output almost defies credibility, began the series writing on a scrap of paper atop a wooden box while traveling on a sloop between New York City and Albany.

Our modern tendency to see the Federalist Papers as the seminal statement of “the original intentions” of the framers is historically incorrect, since Publius represented only one side of the argument, and a wholly partisan perspective. The Federalist Papers were aimed, not at posterity, but at a highly limited audience of the moment – primarily at the people and delegates of New York where ratification was powerfully opposed. There were no Antifederalist Papers, and most arguments in the state conventions were locally-based. Only Publius spoke from a national perspective.

By April 1788, it had become abundantly clear that Virginia would be the decisive state, because New Hampshire and North Carolina had decided to postpone their conventions and Maryland threatened to join them in order to await Virginia’s decision.  Though Washington had taken a vow of abstinence after the Constitutional Convention, he broke that vow – probably under the prodding of Madison – by writing to friends in Maryland, urging a vote rather than a postponement, which would be “tantamount to a rejection of the Constitution”. Such a request from Washington was the equivalent of a command, and Maryland voted to ratify within the week.

The Virginia convention was to become one of the most significant and consequential debates in American history. The Virginia press, sensing this, hired stenographers to record every word of all speakers, making it the most fully preserved of all the state conventions.

While the two sides seemed evenly divided, with Governor Edmund Randolph joining the Pro side and George Mason taking the Anti position, everyone realized that the two titans of the Richmond debates were going to be Madison and Patrick Henry. As John Marshall, protégé of Washington, Revolutionary war hero, and future chief justice of the Supreme Court so nicely put it: “Mr. Henry had without doubt the greatest power to persuade, [but] Mr. Madison had the greatest power to convince.”

Thanks largely to Henry’s bravura performance and his instinctive desire to attack the central assumptions of Publius, the debate in the Virginia convention subordinated the local concerns of most delegates to the larger national issues at stake.

Henry first attacked the Constitutional Convention as an unconstitutional gathering, because the delegates had exceeded their instructions to revise the Articles. Then he challenged the presumption that American was on the verge of anarchy. Madison rejoined with the litany of failures of the Articles and the historical record of European confederations. The primary virtue of their debate was to make the two sides of the argument abundantly clear.

Henry spoke for the past, while Madison spoke to the future. Henry noted correctly that “the question turns, Sir, on that poor little thing, the expression ‘We, the People’. instead of ‘the States of America’.” (Modern day Tea Partiers share this political legacy.) Madison might have attacked the central premise of Henry’s argument – that no such thing as “We the People of the United States” yet existed (Washington believed that American’s common interests would be revealed over time) – but instead he attacked Henry’s flanks, insisting that the Constitution created a shared sovereignty.

“It is in a manner unprecedented”, Madison observed. “It stands by itself. In some respects it is a government of a federal nature, in others it is of a consolidated nature”. All the arguments Madison made in Richmond on behalf of shared sovereignty represented a repudiation of the arguments he had made in Philadelphia. But the political circumstances had changed and Madison, ever the political animal, had changed with them.

Once the boogeyman of consolidation had been defanged, Henry realized his only hope was to load up Virginia’s ratification with so many amendments that a second convention would need to be called. In his final speech on June 29, proposing forty new amendments to the Constitution, Henry was interrupted by a violent thunderstorm, suggesting that even the gods favored ratification. The final vote was close but decisive at 89 to 79 in favor. A caucus of the defeated Antis voted to mount a challenge to the verdict, but Henry refused to lend his support, recognizing that it was a lost cause.

The decision in Virginia made New York, in spite of its size and commercial significance, a mere epilogue to the ratification story. Both Jay and Hamilton had done their best, against overwhelming odds, to make the case for ratification. Jay had written an essay, widely circulated in the New York press, that actually outdid Publius in making the most comprehensive argument for what was at stake, in language that was simultaneously accessible and lyrical. He insisted that, if Americans failed to come together in 1787 as they had in 1776, the outcome would be just as catastrophic as defeat would have been in the war with Great Britain.

Hamilton was similarly brilliant in a more aggressive mode, but his singular contribution was to establish a series of riders between Richmond and Poughkeepsie to apprise New York of the verdict in Virginia. The primary political task, given the overwhelming opposition, was to delay the vote until Virginia had created a fait accompli. They succeeded in this task, and New York voted for ratification by the narrowest of margins: 30 to 27.

New York’s endorsement of ratification included a series of recommended amendments and a statement that ratification occurred “infull confidence that the necessary amendments would be adopted”. Madison immediately rejected New York’s terms, arguing that “conditional ratification…does not make N. York a member of the New Union”. Governor Clinton sent a circular letter to all the states, arguing for a second convention, along with a veiled threat that New York intended to secede from the union if its amendments were ignored. Hamilton then proceeded to issue his own threat that, if New York seceded from the union, New York City would secede from New York.

Jay, who was so certain that the future of the American nation was assured, strangely endorsed the circular letter and eve had a major hand in its drafting. He believed that New York was engaging in a political tantrum and that a temporary concession would do no harm if there is certainty that the cause would triumph in the end. Jay believed the Clintonites were bluffing and that to humor their sense of significance would allow them to fold into the union with their dignity intact. This prophesy came to pass.

Washington, for his part, tended to view this victory, as his earlier one in 1776, as guided by the hand of Providence. A more down-to-earth perspective would note that four men had made events happen that, in terms of their consequences, have no equal in American history. And they weren’t quite through.

Final Pieces

Hamilton took the lead in the final phase of the story, which was all about ensuring that the new federal government was administered by men of talent who were committed to making the experiment with a large-scale republican government work.

In Virginia, Patrick Henry was already pressuring the legislature to select for the Senate men who had opposed ratification, thereby blocking Madison’s election, though he could not prevent Madison’s election to the House. In New York, George Clinton was pursuing the same strategy, designed to make the New York delegation a Trojan horse with the new federal fortress.

Hamilton was the most skilled political polemicist in the country, and he focused his fire on Clinton’s character, corrupt system of patronage, and obstructionist motives. The Constitution, he believed, was only words on parchment, unless those words were implemented by representatives devoted to its success, not seeking to sabotage its very survival.

Like everyone else, Hamilton assumed that George Washington, the only man who could transcend local, state and regional divisions, would become the first president. The one man in America who did not share that presumption was Washington, himself. Since the spring of 1788, Washington had apprised all who inquired that he was permanently embedded at Mt. Vernon. “I have no wish which aspires beyond the humble and happy lot of living and dying a private citizen on my own farm.”

It fell to Hamilton to apprise his old commander that, whether he knew it or not, he really had no choice:

“I take it for granted, Sir, you have concluded to comply with what will no doubt be the general call of your country in relation to the new government. You will permit me to say that it is indispensable you should lend yourself to its first operation. It is of little use to have introduced a system if the weightiest influence is not given to its firm establishment, in the outset.”

No president in US history wanted the office less than Washington. As Henry Lee, Washington’s old cavalry commander, put it, “It is a sacrifice on your part, unjustifiable from any personal point of view. But on the other hand, no alternative seems to be presented.”

There was no need for him to stand for office, thereby presenting the image of ambition which he lacked, as there were no political primaries or nominating conventions. The electors in each state were free to select anyone they wished. The winner became the president, and the runner-up became the vice-president.

Though Washington’s selection was a near certainty, that was not enough for Hamilton, who moved behind the scenes to rig the election. There was an informed consensus that John Adams was likely to finish second and become the vice president, probably with the unanimous support of New England and most of the northern states. Hamilton lobbied his friends in Delaware, New Jersey and Pennsylvania to throw their votes for Adams in favor of lesser candidates, in order to prevent an accidental Adams presidency.

In the end, it made no difference. When the electoral votes were counted, all sixty-nine electors voted for Washington, making him the unanimous choice. Adams finished second with thirty-four electoral votes among twelve candidates, as each elector was given two votes.

There was one final ingredient that needed to be added to the institutional equation in order to ensure the prospects of success. During the ratification debates, it had become abundantly clear that the biggest mistake of the Constitutional Convention was to omit a bill of rights. Both Madison and James Wilson developed elaborate political arguments to justify its absence, essentially insisting that there was no need for such a thing because the Constitution gave only enumerated powers to the new federal government, making it unnecessary to make explicit guarantees of rights already embedded in the state constitutions. Madison added the somewhat strained argument that assembling such a list of rights could be dangerous, because one could never know if the list would be sufficiently comprehensive and complete.

But most of the reluctant delegates did not buy those arguments, and the major reason for opposing ratification had been the absence of a clear zone of immunity from federal intrusion into people’s private lives and into the more proximate authority of their local and state governments. Of the 124 different amendments proposed by six states, the vast majority focused on fears of federal power.

As Hamilton took the lead in assuring that Washington would be the first president, Madison took the lead in correcting the mistake of the delegates in Philadelphia. His motives were almost entirely political, as Madison saw a bill of rights as a weapon to be wielded against opponents of the Constitution. The movement for a second convention would be undermined if Congress passed a bill of rights that addressed the legitimate concerns of those who had opposed ratification.

Madison announced a shift in his position in January 1789:

“It is evident that the change in the situation produced by the establishment of the Constitution, leaves me in common with the other friends of the Constitution, free, and consistent in espousing such a revisal of it, as will either make it better in itself, or without making it worse, will make it appear better to those who now dislike it.”

The first Congress, not a second convention, was the proper place to amend the Constitution, and Madison vowed to lead the effort. By having the first Congress make the revisions, the authority of the new government would be enhanced, whereas the unspoken agenda of second convention advocates was to undermine it.

Madison’s thinking on this issue was complex. His experience with the state governments under the Articles had led him to the conclusion that the major threat to individual liberty and the rights of minorities came from below rather than from above – that is, from popular majorities rather than from government. And he did not think that a bill of rights could do much to prevent those abuses. This put him at odds with his mentor in Paris, as Jefferson was blissfully oblivious to the supercharged political atmosphere that Madison was trying to manage.

Jefferson was working with Lafayette to draft a declaration of rights as the essential statement of principles for the French Revolution, and he considered a constitution a merely temporary political frameworks to be revised or replaced every twenty years to reflect the interests and values of the new generation. Jefferson wanted government to be small, weak and as close to invisible as possible.

Madison confessed that “I never have thought the omission [of a bill of rights] a material defect, nor for any other reason than it is anxiously desired by others… I have not viewed it in an important light”. Moreover, Madison described all bills of rights as “parchment barriers”, easily ignored and violated “by overbearing majorities in every state”.

In his campaign for the House, Madison declared: “It is my sincerest desire that the Constitution ought to be revised, and that the first Congress meeting under it ought to prepare and recommend to the States for ratification, the most satisfactory provisions for all essential rights, particularly the rights of conscience in the fullest latitude, the freedom of the press, trials by jury, security against general warrants, etc.”

In truth, Madison believed that the greatest protection of individual rights was already embedded in the political framework created by the Constitution but, as he put it to Jefferson, such an act of conciliation would “extinguish opposition to the system, or at least break the force of it by detaching the deluded opponents from their designing leaders”. In short, he viewed the movement for a bill of rights, not as an opportunity to glimpse the abiding truths, but as the final step in the ratification process.

Madison was in an excellent position to act on his new promise, as he was the second most prominent figure in the new government after Washington, recognized as the “first man” in the House. In early March 1789, just five days after Washington took the oath of office, Madison announced his intention to propose amendments to the Constitution. He then took the Virginia Declaration of Rights and all of the amendments proposed by states into his study for deliberation. While it’s not quite accurate to call Madison the “Father of the Constitution”, given the important roles played by others, there is no question that he was the “Father of the Bill of Rights”.  He wrote the first draft himself, ushered it through the House, and negotiated with the Senate as it reduced the seventeen amendments to twelve.

The movement for a second convention was already beginning to fade, just as Jay predicted, but as Hamilton had taken no chances with the presidency, Madison felt an urgent need to pass a bill of rights to head off any threat.

Madison initially proposed that the amendments be inserted into the text of the Constitution, “so that the amendments are interwoven into those parts in which they naturally belong”. Roger Sherman of Connecticut called attention to the fact that this would revise the document without the authorization of the signers in Philadelphia, and that the amendments should be regarded as a separate codicil to the original text, which was in fact what they were.

Madison immediately acknowledged this as an unanswerable argument and conceded the point. The result was to give the Bill of Rights a separate status as an epilogue that accurately reflected the concerns of many delegates at the ratifying conventions. Over time, this placement allowed the Bill of Rights to assume an iconic status of its own, as the legal version of the liberal values first articulated in the Declaration of Independence, and as the classic statement of rights beyond the reach of government.

To discern Madison’s “original intent”, the best place to look is opening speech he delivered on June 8 to the House, in which he presented the fruits of his quite massive editorial labors and recommended a committee-of-the-whole to consider.

Several representatives objected to such a consideration at that time, as Congress had more pressing issues to consider, not least being to set up a federal revenue system, translate the vagaries of the Constitution into a workable federal judiciary, and create executive departments and define their authority – in short, to get the government up and going.

As James Jackson of Georgia put it, the Constitution was like “a ship that has never yet put to sea… Upon experiment she may prove faultless, or her defects might be very obvious”.

Madison relented on the tactical questions and allowed his proposal to be sent to a special committee. But he insisted on the principle that a bill of rights must be an immediate priority:

“It cannot be a secret to the gentlemen of this house, that, not-withstanding the ratification of this system of government by eleven of the thirteen Unite States, yet there is a great number of our constituents who are dissatisfied with it; among whom are many respectable for their talents, their patriotism, and respectable for the jealously they have for their liberty… There is a great body of the people falling under this description… We ought not to disregard their inclination, conform to their wishes, and expressly declare the great rights of mankind secured under this constitution.”

He also noted that there were still two states, North Carolina and Rhode Island, that had failed to ratify, and it behooved the newly created government to persuade them “to throw themselves into the bosom of the new confederacy”. In short, it was imperative to perfume this one piece of unfinished business that, in effect, would complete the ratification process.

Madison’s original list of amendments (bundled into nine, disentangled into seventeen by the House and then reduced to twelve by the Senate, to be further reduced to ten in the ratification process) contained the standard set of rights we have come to expect. The major ones included the right to free speech, a free press, freedom of religion, freedom from unwarranted searches and seizures, and the explicit presumption that powers not delegated to the federal government were reserved for the states.

But if we are to grasp Madison’s original intentions, the initial item to notice is the absence of a certain amendment that had been proposed by all the states that had made recommendations. Six states had urged a return to the arrangement under the Articles whereby federal tax requests would be regarded as voluntary by the states. Since the failure to fund the federal budget and debt had been a central reason for the fiscal chaos under the Articles, Madison dealt with this proposal by ignoring it.

Madison then proposed an amendment which no state had offered: “No state shall violate the equal rights of conscience, or the freedom of the press, or the trial by jury in criminal cases”. He was trying to smuggle in the federal veto of state laws under guise of ensuring federal standards for agreed-upon human rights at the state level. It would take the Supreme Court more than a century to recognize federal jurisdiction in the Madisonian manner, and history proved Madison right that more abuses of individual rights would occur at the state than at the federal level.

Third, Madison criticized the part of the Constitution that limited the number of representatives to one for every 30,000 persons, based on concerns expressed by several states that meaningful representative government required smaller congressional districts. Nothing came of this recommendation, as it would have made the new legislature unwieldy.

Finally, under the rubric of his fourth proposed amendment, Madison wrote the following words:

“The right of the people to keep and bear arms shall not be infringed; a well armed, and well regulated militia being the best security of a free country; but no person religiously scrupulous of bearing arms, shall be compelled to render military service in person.”

This eventually, after some editing in the Senate, became the Second Amendment in the Bill of Rights, and its meaning has provoked more controversy in our own time than it did in 1789.

Madison was responding to recommended amendments from five states, calling for the prohibition of a permanent standing army on the grounds that it had historically proven to be an enduring threat to republican values.

It was clear that Madison’s intention in drafting his proposed amendment was to assure those skeptical souls that the defense of the United States would depend on state militias rather than a professional, federal army. In Madison’s formulation, the right to bear arms was not inherent but derivative, depending on service in the militia. The recent Supreme Court decision in Heller v. District of Columbia (2008) that found the right to bear arms an inherent and nearly unliited right is clearly at odds with Madison’s original intentions.

Most of his critics in the House felt that Madison’s proposed amendments did not adequately reflect the deepest concerns of their constituents, and were gestures of appeasement toward what were, in fact, the diminished powers of the states. And, in truth, this is precisely what Madison intended; to make the fewest concessions possible to the opposition to ensure the greatest level of support for the new government.

The most basic of Madison’s intentions in drafting and defending the Bill of Rights, then, were neither constitutional nor philosophical, but political As he explained to Jefferson on several occasions, he really did not think the Constitution needed a bill of rights. What he called “the nauseus business of amendments” was primarily intended to win over those disaffected and reluctant Americans by identifying in specific ways the constitutional constraints on federal power. He was always very clear about that: “It is to be wished that the discontented part of our fellow Citizens could be reconciled to the Government they have opposed, and by means as little unacceptable to those who approve the Constitution in its present form.”

He did not regard himself as a political philosopher but rather as a political strategist attempting to secure the success of a quite daring project that he, Hamilton, Jay and Washington had launched against great odds three years earlier. While the Bill of Rights has ascended to an elevated place in the American imagination, to Madison’s mind it was onlyh an essential epilogue that concluded a brilliant campaign to adjust the meaning of the American Revolution to a national scale.

***

By the summer of 1789, the Constitution had been ratified, Washington was ensconced as the first president, the Bill of Rights was on the way to ratification, and the framework for a truly national government was in place. Only a few years earlier, no one could have predicted this outcome or the chain of events that led to it. The American Revolution now meant not just independence but nationhood. And, though a majority of Americans were either opposed or indifferent to this remarkable transition, the institutions to make it happen were established and the American citizenry was beginning to grow into the nation-size house constructed for them. It would take a full generation before they felt comfortable living there and had rearranged the furniture to their satisfaction.

All the men who had led the movement toward nationhood, with one major exception, were centrally involved in the effort to implement and institutionalize that vision in the following decade. Washington had made the American presidency a powerful office that combined the symbolic authority of an elected monarch with the substantive role of prime minister responsible for overseeing domestic and foreign policy. No one else could have done this so seamlessly and successfully.

Hamilton had become the first secretary of the treasury, after Robert Morris declined the offer from Washington in order to serve in the Senate. Hamilton proceeded to implement a comprehensive financial plan closely modeled on what Morris had attempted: namely, a national bank, federal assumption of all state debts, and a long-range plan to retire the national debt and restore American credit internationally.

Jay turned down the opportunity to become the first secretary of state – Jefferson then got the job – in favor of appointment as first chief justice of the Supreme Court. He later went on to serve as governor of New York, where his foremost achievement was a law putting slavery on the road to extinction.

Madison was the exception. In the early months of Washington’s presidency, Madison continued to serve as his closest confidant and liaison to Congress. But for reasons that have baffled historians ever since, by 1791 Madison had switched sides and joined with Jefferson to lead the opposition against Hamilton’s financial plan as well as the entire domestic and foreign policy agenda of the Federalist Party.

This conversion culminated in Madison’s Virginia Resolution (1798), where he articulated a state’s rights interpretation of the Constitution, essentially making the same arguments that Patrick Henry had made and Madison had opposed at the Virginia convention, and that later became the position of the Confederacy in 1861.

***

The founders occupied a transitional moment in the history of Western civilization that was post-aristocratic and pre-democratic. On the on d hand, this meant that politics in America was open to a whole class of talented men who would have languished in obscurity throughout Europe because they lacked the proper bloodlines and inherited wealth. Hamilton was the best example of this egalitarian ethos, but even Washington would never have risen beyond the rank of major in the British army.

On the other hand, political leadership in this pre-modern world remained blissfully oblivious to democratic mythology about the uncommon wisdom of the common man or the superior virtue of that mysterious congregation called “the people”. Hamilton and Madison were the most outspoken critics of any democratic perspective that assumed that the majority of the American citizenry could be expected to behave virtuously or to subordinate their own personal agendas to some larger definition of the public interest.

They maximized the historical possibilities of their transitory moment, straddling an aristocratic world that was dying and a democratic world that was just emerging. And they managed to make a graceful synthesis they called a republic. The Constitution they left us endures, not because it embodies timeless truths, but because it manages to combine the two time-bound truths of its own time: namely, that any legitimate government must rest on a popular foundation, and that popular majorities cannot be trusted to act responsibly – a paradox that has aged remarkable well.

Their genius was to answer the political challenges of their own moment decisively, but also to provide a political platform wide enough to allow for considerable latitude within which future generations could make their own decisions.

***

Jefferson, who had little part in the making of the new republic, but had the fortune to live into the third of the nineteenth century from which he could look back at his generation, expressed perfectly the sentiments of all the founders:

“Some men look at constitutions with sanctimonious reverence, and deem them like the ark of the covenant, too sacred to be touched. They ascribe to the preceding age a wisdom more than human, and suppose that what they did to be beyond amendment. I knew that age well; I belonged to it and labored with it. It deserved well of its country… But I know also, that laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths discovered…institutions must advance also, and keep pace with the times. We might as well require a man to war still the coat which fitted him as a boy as civilized society to remain ever under the regime of their barbarous ancestors.” – July 12, 1816

It is richly ironic that one of the few original intentions which all the founders shared was opposition to any judicial doctrine of “original intent”. To be sure, they all wished to be remembered, but they did not want to be embalmed.

****************************************************************************

by Robert Riversong: may be reproduced only with attribution for non-commercial purposes and a link to this page

%d bloggers like this: