“We have now the Honor to submit to the Consideration of the United States in Congress assembled that Constitution which has appeared to us the most advisable”[1]

—George Washington, in a letter to the Confederation Congress that accompanied a copy of the new Constitution, September 17, 1787

 We view the men who gathered to write the Constitution as some of the greatest heroes of American history and the document they produced as the best that could be created by the mind of man. In honor of Constitution Day, I’m using this space today to view the Constitution from a different perspective.  In what ways did they go wrong?  Were the ones who were vehemently against the Constitution the ones who possessed the clearest vision of America’s future? 

The United States Constitution is the longest surviving written constitution in history.  Around the globe it has been adopted as a template for good government.  It can therefore be difficult to understand how the Constitution could have been ratified by only the thinnest of margins and that many of the earliest reviews regarded it as a calamitous threat to liberty.  Of the original fifty-five delegates to the Constitutional Convention, just forty-two were there at the close, and only thirty-nine agreed to sign the document.[2]  Rhode Island refused to participate in the convention that produced the Constitution, and two of New York’s delegates left in disgust leaving the state unable to register a vote.

Upon first inspection of the Constitution, Thomas Jefferson’s response was hesitant at best. “There are very good articles in it: and very bad” wrote Jefferson, “I do not know which preponderate.” ^[3]   He believed that the writing of a new constitution had been an overreaction to a violent rebellion in Massachusetts and “in the spur of the moment they are setting up a [hawk] to keep the hen yard in order.”[4]  Many of Jefferson’s fellow Virginians were less equivocal in their assessments.   “I feel it among the first distresses that have happened to me in my life” wrote Richard Henry Lee to George Washington “that I find myself compelled by irresistible conviction of mind to doubt about the new System for federal government… I am led to fear the danger that will ensue to Civil Liberty from the adoption of the new system.”^[5]  Patrick Henry declared that the Constitution had many “deformities” and that “it has an awful squinting; it squints towards monarchy.”^[6]  Before the ink had dried on the new Constitution, George Mason dramatically declared that he would rather cut off his hand than sign the document.

In the four most populous states in the Union, there was strong resistance to ratification.  The Pennsylvania convention suppressed all debate and after a vote to approve the Constitution there was wild talk from the western parts threatening violence and secession.  In the early days of the Massachusetts convention the majority of the three-hundred-fifty delegates were against ratification.  There were fist-fights, traded insults, and passionate speeches that ultimately brought enough of the delegates around for a vote in favor of the Constitution by a mere nineteen votes.  The hostile resistance to the Constitution in New York and Virginia was only overcome after assurances that the first order of business would be to attach the amendments that are now known as the Bill of Rights.

When the Constitution is discussed today the focus is on how it should be interpreted.  Supreme Court justices are classified as textualist, originalist, living constitutionalist, and so on into ever more obscure divisions.  It is important to take one step back from these arcane controversies to understand what animated those who were involved in the first round of debate over the Constitution.  Interpretation of the Constitution is secondary to the issue of why it was written in the first place.  The United States’ first attempt at government—the Articles of Confederation—appeared to have failed and needed to be replaced. What had gone wrong and what was the cure?  Might the medicine be too strong?

The central disagreement between the Constitution’s advocates and opponents—the so-called federalists and antifederalists[7]–was how liberty was to be protected: weak or strong government?  Both sides knew what the most important ingredient was for liberty to flourish: virtue.  The federalists believed, and their arguments ultimately prevailed, that the Articles had failed because American citizens were just not virtuous enough.  In their view, people had proven to be self-indulgent and careless of the nation’s collective welfare.  The people were lacking in the most important virtues.  They were not moderating their passions, they were dishonoring justice, disrespecting the laws, disregarding the public welfare, and they were not exercising wisdom when electing state representatives.

If virtue was not as widespread as the founders had hoped, then the survival of the nation would require a strengthened government.  Government would have to assume a larger responsibility to make people behave.  The strengthened national government would prevent the “corruption of manners,” that was threatening the young republic, wrote John Dickinson of Pennsylvania, and that it would be nothing less than a “crime to be equaled only by its folly” for the Constitution not to be ratified.^[8]   Liberty was being destroyed by “the licentiousness of the people, and turbulent temper of some of the states.”^[9]  The idealized free citizen was virtuous and self-regulating, and experienced his God-given personal and political freedom in a socially productive manner.   Virtuous citizens possessed the self-regulation to exist comfortably and securely under the auspices of the relatively light-hand of government.  According to the federalist, this had been an unrealistic expectation.

The federalists’ argument represented a new perspective on virtue and rested upon the premise that the power placed in the national government was less likely to be abused than it had been in the state governments.  Through enlarging the sphere of government, the ability for the unvirtuous rabble to exert a harmful influence would be limited.  The burden of virtue was shifted from the regular citizen to the leadership.  The revised federal system was designed in such a way so that the virtuous elite could be lifted above the hoi polloi in the states and granted greater authority in the national government. Men selected to govern under the proposed Constitution would be more virtuous, more trustworthy, and more rational, than the average man.  Whereas Locke had established the rationale and expectations for government, the federalists raised the stakes for what it meant to be a leader.  Their writings represented a theory concerning lowered expectations of virtue in the citizenry and a return to the ancient Greek and Roman idealization of the leader.

The virtue of the common people became less important as it was assumed that a natural aristocracy would flourish, particularly in the senate and the presidency.^[10]  This was a model of leadership that was expressed in the Roman legend of Cincinnatus, a virtuous leader who gave up the opportunity to be a dictator in order to return to modest life on the farm.  Many of the founders’ heroes had been Athenian aristocrats who had tried to contain the vices of the people.  Solon, for example, was often praised by the founders as the model of wisdom and moderation.  The most romanticized of all their heroes were Cato the Younger, Brutus, Cassius, and Cicero; all of whom were hero-worshiped for their selflessness and struggles to protect liberty.[11]  The convention that produced the Constitution, according to Alexander Hamilton, had been composed of men of unimpeachable good character, “who possessed the confidence of the people, and many of whom had become highly distinguished by their patriotism, virtue, and wisdom, in times which tried the souls of men, undertook the arduous task… they passed many months in cool uninterrupted and daily consultations…. without having been awed by power, or influenced by any passion, except love for their country.”^[12]

One of the many advantages of having a centralized government was that it could “collect and avail itself of the talents and experience of the ablest men, in whatever part of the union they may be found.”^[13]  Numerous features within the Constitution would ensure that men of talent and integrity would be selected to serve.  “There are strong minds in every walk of life, that will arise superior” wrote Hamilton “and will command the tribute due to their merit.”^[14]  The new constitution not only created a national government where the more virtuous leaders would be lifted above the common man, but the federalists believed the common man could be quite feckless and their voices needed to be muffled.

The expectation that the Senate would proceed with more “coolness” and “wisdom than the popular branch was a reason given for keeping the numbers small, for to “enlarge their number and you communicate to them the vices which they are meant to correct.  The more the representatives of the people therefore are multiplied, the more they partook of the infirmities of their constituents.”^[15]  By setting an age qualification at thirty-five “it confines the elections to men of whom the people have had time to form a judgment…who best understand our national interests… who are best able to promote those interests, and whose reputation for integrity inspires and merits confidence.”[16]  When it came to the selection of officers to serve on the Supreme Court, the method of appointment by the president and approval by the Senate as opposed to leaving it the judgement of the people, assured that only the properly prepared would serve.   In choosing people to serve in the judiciary branch it was of particular importance that it not be left to the people at large.^[17]

In defending the method of appointment for the president, there was particular effort to assure that the vices of human nature could be circumvented.  The system of selecting the electors would ensure that the “sense of the people” would be felt but that “tumult and disorder” would be avoided.  The “detached and divided” manner in which the electors would cast their votes “will expose them much less to heats and ferments” and “cabal, intrigue, and corruption” would be avoided.^[18] Hamilton predicted that “this process of election affords a moral certainty, that the office of president will seldom fall to the lot of any man who is not in an eminent degree endowed with the requisite qualifications… It will not be too strong to say, that there will be a constant probability of seeing the station filled by characters preeminent for ability and virtue.”^[19]

The president would enjoy a serene separation from the people and remain above any prevailing “ill-humors” in society.  Hamilton stressed that the president would not be influenced by “every sudden breeze of passion, or to every transient impulse” that may activate the people.”[20]  The people may succumb to “the wiles of parasites and sycophants, by the snares of the ambitious, the avaricious, the desperate, by the artifices of men who possess their confidence more than they deserve it” but it was the “the persons whom they have appointed to be the guardians of those interests, to withstand the temporary delusion, in order to give them time and opportunity for more cool and sedate reflection.”[21]

The structure of the Constitution was evidence of the diminished expectation that liberty would only flourish if the citizens were virtuous.  The degree of political liberty that citizens had enjoyed during the period of the Confederation was reined-in as their influence on the three branches of government was minimal.  Happiness, understood as behaving in a moderate style, had been the highest goal that would lead to a harmonious community.  The lynchpin of liberty—virtue-based happiness among the people at large—did not seem to be adequately widespread, and so the country adopted a new constitution.

The federalists thereby contextualized the problem of virtue in a new way.  Due to a lack of virtue, the people were not fit to hold the unfiltered power that they had abused under the former style of government.  There existed a positive correlation between virtue and ability to rule and it had become alarmingly apparent that nature had not been equitable in her distribution.  In Hamilton’s forthright manner of stating the problem, he reminded his readers of the tendency for the people to be “ambitious, vindictive, and rapacious.”^[22]  For the benefit of the common welfare, certain features of the invigorated national government would result in the selection of leaders with greater wisdom and better qualifications than had been the rule in the state legislatures.  Though Madison admitted that “enlightened statesmen will not always be at the helm,”^[23] he expected to find more men of good character in the rarified offices of the national government, particularly in the senate and the presidency, than in the state legislatures.  In addition, the method for determining who would serve would allow for increasing levels of detachment from, and thereby the ability to resist, the impulsive, ignorant and leading-to-tyranny passions of the people.

The antifederalists rejected the theory that checks and balances among the three branches of the national government would protect the liberty of the people or prevent an unlimited increase in the size and power of the national government in relation to the states.  The equilibrium among the three branches would not last and power would eventually “preponderate to one or the other body,” this would cause an eventual accumulation of all power in one branch.^[24]  The antifederalists presciently observed how both Congress and the Supreme Court would expand their powers overtime.  Article I, Section 8, Clause 18 gave Congress power “to make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof” and would be used to expand the powers of taxation for any purpose that might “be for the general welfare.”  It was impossible to have a clear understanding of how far the powers could be stretched in the future. “or of the extent and number of the laws which may be deemed necessary and proper.”  The people might hope “that a wise and prudent congress will pay respect to the opinions of a free people… but a congress of a different character” might not respect those principles.^[25]

The antifederalists placed little faith in the virtuous self-restraint or good character of future leaders as they pondered the meaning of “necessary and proper.”   Future administrations would probably look to expand their influence and “take every occasion to multiply laws, and officers to execute them, considering these as so many props for its own support.”  Taxes would be increased “to support the government, and to discharge foreign demands.”^[26]  “The expense of the new plan [was] terrifying” with all the new complexities and inconveniences created by expanding the national level of government.^[27]

The Supreme Court and the Senate would certainly expand their power.  Armed with the knowledge of how the courts in England with “ingenious sophisms” had expanded their authority, it was predicted that the judicial branch would also extend “the sphere of influence.”^[28]  The term of six years with no term limits for senators would make it probable, “from their extensive means of influence,” that they would continue in office for life.  The entire plan of government, therefore, was certainly going to result in “a permanent aristocracy.”^[29]  Contributing to the foreseeable increase in the power of the national government was the complexity of the system.  “If you complicate the plan by various orders, the people will be perplexed… about the source of abuses or misconduct” and the judgment of the people will be inoperable.  The protection of liberty required that the sources of abuse be easily identifiable and that short terms in office will permit the people to quickly discard them at the next election.^[30]

[1] “From George Washington to the President of Congress, 17 September 1787,” Founders Online, National Archives, last modified June 13, 2018, http://founders.archives.gov/documents/Washington/04-05-02-0306. [Original source: The Papers of George Washington, Confederation Series, vol. 5, 1 February 1787 – 31 December 1787, ed. W. W. Abbot. Charlottesville: University Press of Virginia, 1997, pp. 330–333.]

[2] The Constitution ends with the disingenuous statement “By the unanimous Order of the Convention.”

[3] “From Thomas Jefferson to William Stephens Smith, 13 November 1787,” Founders Online, National Archives, last modified June 13, 2018, http://founders.archives.gov/documents/Jefferson/01-12-02-0348. [Original source: The Papers of Thomas Jefferson, vol. 12, 7 August 1787 – 31 March 1788, ed. Julian P. Boyd. Princeton: Princeton University Press, 1955, pp. 355–357.]

[4] Ibid.

[5]  Richard Henry Lee, “To George Washington from Richard Henry Lee, 11 October 1787,” Founders Online, last modified November 26, 2017, accessed January 25, 2018, http://founders.archives.gov/documents/Washington/04-05-02-0336.

[6] Patrick Henry, “Speeches of Patrick Henry in the Virginia State Ratifying Convention, 5 June 1788,” The Anti-Federalist, 310.

[7] Both groups agreed that maintaining a federal form of government, that is a structure that shared power between the states and a central authority, was important.  To be accurate therefore, to refer to the group that was against ratification as anti-federalists was a misnomer.  In this writer’s opinion, better names for the two would have been nationalists and anti-nationalists.

[8] John Dickinson, “The Letters of Fabius in 1788 on the Federal Constitution, Letter VIII,” ed. Paul L. Ford, Internet Archive, accessed March 9, 2018, https://archive.org/stream/lettersoffabiusi00dickuoft/lettersoffabiusi00dickuoft_djvu.txt.

[9] John Dickinson, “The Letters of Fabius in 1788 on the Federal Constitution, Letter VII” ed. Paul L. Ford, Internet Archive, accessed January 19, 2018, https://archive.org/stream/lettersoffabiusi00dickuoft/lettersoffabiusi00dickuoft_djvu.txt

[10] See David R. Weaver, “Leadership, Locke, and the Federalist,” American Journal of Political Science 41, no. 2 (April 1997).

[11] Carl J. Richard, The Founders and the Classics: Greece, Rome, and the American Enlightenment (Cambridge, Mass.: Harvard University Press, 1995), 55-57.

[12]  Hamilton, “No. 2,” The Federalist Papers: The Gideon Edition, ed. James McClellan and George W. Carey, Gideon ed. (Indianapolis: Liberty Fund, 2001), 7.

[13] Jay, “No. 4,” The Federalist, 15.

[14]  Hamilton, “No. 36,” in The Federalist, 173.

[15] James Madison, “Remarks in the Federal Convention on the Senate (June 7, 1787),” in James Madison: Writings, 98.

[16] Ibid.

[17] Madison, “No. 51,” in The Federalist, 268.

[18] Hamilton, “No. 68,” in The Federalist, 354

[19] Ibid., 354.

[20] Hamilton, “No. 71,” in The Federalist, 370.

[21] Ibid.

[22] Hamilton, “No. 6,” in The Federalist, 21.

[23] Madison, “No. 10.” in The Federalist, 45.

[24] “Centinel, Letter I (October 1787),” in The Anti-Federalist: Writings by the Opponents of the Constitution, ed. Herbert J. Storing and Murray Dry, (Chicago: Univ. of Chicago Press, 1985),  15.

[25] Federal Farmer, “Letter IV (October 12, 1787),” in The Anti-Federalist, 56.

[26] Federal Farmer, “Letter III (October 10, 1787),” in The Anti-Federalist, 49.

[27] Agrippa, “To the People (23 November 1787),” in The Anti-Federalist, 230.

[28] “Centinel, Letter I (October 1787),” in The Anti-Federalist 17.

[29] Ibid., 19.

[30] Ibid., 16.