Chapter 1

IN THE BEGINNING

THE PENNSYLVANIA PACKET, AND DAILY ADVERTISER (SEPTEMBER 19, 1787).
When, after a summer of closed meetings in Philadelphia, America’s leading statesmen went public with their proposed Constitution on September 17, 1787, newspapers rushed to print the proposal in its entirety. In several printings, the dramatic words of the Preamble appeared in particularly large type. (Illustration Credit 1.1)

It started with a bang. Ordinary citizens would govern themselves across a continent and over the centuries, under rules that the populace would ratify and could revise. By uniting previously independent states into a vast and indivisible nation, New World republicans would keep Old World monarchs at a distance and thus make democracy work on a scale never before dreamed possible.

“We … do”

With simple words placed in the document’s most prominent location, the Preamble laid the foundation for all that followed. “We the People of the United States, … do ordain and establish this Constitution …”

These words did more than promise popular self-government. They also embodied and enacted it. Like the phrases “I do” in an exchange of wedding vows and “I accept” in a contract, the Preamble’s words actually performed the very thing they described. Thus the Founders’ “Constitution” was not merely a text but a deed—a constituting. We the People do ordain. In the late 1780s, this was the most democratic deed the world had ever seen.

Behind this act of ordainment and establishment stood countless ordinary American voters who gave their consent to the Constitution via specially elected ratifying conventions held in the thirteen states beginning in late 1787. Until these ratifications took place, the Constitution’s words were a mere proposal—the text of a contract yet to be accepted, the script of a wedding still to be performed.

The proposal itself had emerged from a special conclave held in Philadelphia during the summer of 1787. Twelve state governments—all except Rhode Island’s—had tapped several dozen leading public servants and private citizens to meet in Philadelphia and ponder possible revisions of the Articles of Confederation, the interstate compact that Americans had formed during the Revolutionary War. After deliberating behind closed doors for months, the Philadelphia conferees unveiled their joint proposal in mid-September in a document signed by thirty-nine of the continent’s most eminent men, including George Washington, Benjamin Franklin, James Wilson, Roger Sherman, James Madison, Alexander Hamilton, Gouverneur Morris, John Rutledge, and Nathaniel Gorham. When these notables put their names on the page, they put their reputations on the line.

An enormous task of political persuasion lay ahead. Several of the leaders who had come to Philadelphia had quit the conclave in disgust, and others who had stayed to the end had refused to endorse the final script. Such men—John Lansing, Robert Yates, Luther Martin, John Francis Mercer, Edmund Randolph, George Mason, and Elbridge Gerry—could be expected to oppose ratification and to urge their political allies to do the same. No one could be certain how the American people would ultimately respond to the competing appeals. Prior to 1787, only two states, Massachusetts and New Hampshire, had ever brought proposed state constitutions before the people to be voted up or down in some special way. The combined track record from this pair of states was sobering: two successful popular ratifications out of six total attempts.

In the end, the federal Constitution proposed by Washington and company would barely squeak through. By its own terms, the document would go into effect only if ratified by specially elected conventions in at least nine states, and even then only states that said yes would be bound. In late 1787 and early 1788, supporters of the Constitution won relatively easy ratifications in Delaware, Pennsylvania, New Jersey, Georgia, and Connecticut. Massachusetts joined their ranks in February 1788, saying “we do” only after weeks of debate and by a close vote, 187 to 168. Then came lopsided yes votes in Maryland and South Carolina, bringing the total to eight ratifications, one shy of the mark. Even so, in mid-June 1788, a full nine months after the publication of the Philadelphia proposal, the Constitution was still struggling to be born, and its fate remained uncertain. Organized opposition ran strong in all the places that had yet to say yes, which included three of America’s largest and most influential states. At last, on June 21, tiny New Hampshire became the decisive ninth state by the margin of 57 to 47. A few days later, before news from the North had arrived, Virginia voted her approval, 89 to 79.

All eyes then turned to New York, where Anti-Federalists initially held a commanding lead inside the convention. Without the acquiescence of this key state, could the new Constitution really work as planned? On the other hand, was New York truly willing to say no and go it alone now that her neighbors had agreed to form a new, more perfect union among themselves? In late July, the state ultimately said yes by a vote of 30 to 27. A switch of only a couple of votes would have reversed the outcome. Meanwhile, the last two states, North Carolina and Rhode Island, refused to ratify in 1788. They would ultimately join the new union in late 1789 and mid-1790, respectively—well after George Washington took office as president of the new (eleven!) United States.

Although the ratification votes in the several states did not occur by direct statewide referenda, the various ratifying conventions did aim to represent “the People” in a particularly emphatic way—more directly than ordinary legislatures. Taking their cue from the Preamble’s bold “We the People” language, several states waived standard voting restrictions and allowed a uniquely broad class of citizens to vote for ratification-convention delegates. For instance, New York temporarily set aside its usual property qualifications and, for the first time in its history, invited all free adult male citizens to vote.¹ Also, states generally allowed an especially broad group of Americans to serve as ratifying-convention delegates. Among the many states that ordinarily required upper-house lawmakers to meet higher property qualifications than lower-house members, none held convention delegates to the higher standard, and most exempted delegates even from the lower. All told, eight states elected convention delegates under special rules that were more populist and less property-focused than normal, and two others followed standing rules that let virtually all taxpaying adult male citizens vote. No state employed special election rules that were more property-based or less populist than normal.²

In the extraordinarily extended and inclusive ratification process envisioned by the Preamble, Americans regularly found themselves discussing the Preamble itself. At Philadelphia, the earliest draft of the Preamble had come from the quill of Pennsylvania’s James Wilson,³ and it was Wilson who took the lead in explaining the Preamble’s principles in a series of early and influential ratification speeches. Pennsylvania Anti-Federalists complained that the Philadelphia notables had overreached in proposing an entirely new Constitution rather than a mere modification of the existing Articles of Confederation. In response, Wilson—America’s leading lawyer and one of only six men to have signed both the Declaration of Independence and the Constitution—stressed the significance of popular ratification. “This Constitution, proposed by [the Philadelphia draftsmen], claims no more than a production of the same nature would claim, flowing from a private pen. It is laid before the citizens of the United States, unfettered by restraint.… By their fiat, it will become of value and authority; without it, it will never receive the character of authenticity and power.”⁴ James Madison agreed, as he made clear in a mid-January 1788 New York newspaper essay today known as The Federalist No. 40—one of a long series of columns that he wrote in partnership with Alexander Hamilton and John Jay under the shared pen name “Publius.” According to Madison/Publius, the Philadelphia draftsmen had merely “proposed a Constitution which is to be of no more consequence than the paper on which it is written, unless it be stamped with the approbation of those to whom it is addressed. [The proposal] was to be submitted to the people themselves, [and] the disapprobation of this supreme authority would destroy it forever; its approbation blot out antecedent errors and irregularities.” Leading Federalists across the continent reiterated the point in similar language.⁵

With the word fiat, Wilson gently called to mind the opening lines of Genesis. In the beginning, God said, fiat lux, and—behold!—there was light. So, too, when the American people (Publius’s “supreme authority”) said, “We do ordain and establish,” that very statement would do the deed. “Let there be a Constitution”—and there would be one. As the ultimate sovereign of all had once made man in his own image, so now the temporal sovereign of America, the people themselves, would make a constitution in their own image.⁶

All this was breathtakingly novel. In 1787, democratic self-government existed almost nowhere on earth. Kings, emperors, czars, princes, sultans, moguls, feudal lords, and tribal chiefs held sway across the globe. Even England featured a limited monarchy and an entrenched aristocracy alongside a House of Commons that rested on a restricted and uneven electoral base. The vaunted English Constitution that American colonists had grown up admiring prior to the struggle for independence was an imprecise hodgepodge of institutions, enactments, cases, usages, maxims, procedures, and principles that had accreted and evolved over many centuries. This Constitution had never been reduced to a single composite writing and voted on by the British people or even by Parliament.

The ancient world had seen small-scale democracies in various Greek city-states and pre-imperial Rome, but none of these had been founded in fully democratic fashion. In the most famous cases, one man—a celebrated lawgiver such as Athens’s Solon or Sparta’s Lycurgus—had unilaterally ordained his countrymen’s constitution. Before the American Revolution, no people had ever explicitly voted on their own written constitution.⁷

Nor did the Revolution itself immediately inaugurate popular ordainments and establishments. True, the 1776 Declaration of Independence proclaimed the “self-evident” truth that “Governments are instituted among Men, deriving their just Powers from the Consent of the Governed.” The document went on to assert that “whenever any Form of Government becomes destructive of [its legitimate] Ends, it is the Right of the People to alter and abolish it, and to institute new Government.” Yet the Declaration only imperfectly acted out its bold script. Its fifty-six acclaimed signers never put the document to any sort of popular vote.

Between April and July 1776, countless similar declarations issued from assorted towns, counties, parishes, informal assemblies, grand juries, militia units, and legislatures across America.⁸ By then, however, the colonies were already under military attack, and conditions often made it impossible to achieve inclusive deliberation or scrupulous tabulation. Many patriots saw Crown loyalists in their midst not as fellow citizens free to vote their honest judgment with impunity, but rather as traitors deserving tar and feathers, or worse. (Virtually no arch-loyalist went on to become a particularly noteworthy political leader in independent America. By contrast, many who would vigorously oppose the Constitution in 1787–88—such as Maryland’s Samuel Chase and Luther Martin, Virginia’s Patrick Henry and James Monroe, and New York’s George Clinton and John Lansing—moved on to illustrious post-ratification careers.)⁹

Shortly before and after the Declaration of Independence, new state governments began to take shape, filling the void created by the ouster of George III. None of the state constitutions ordained in the first months of the Revolution was voted on by the electorate or by a specially elected ratifying convention of the people. In many states, sitting legislatures or closely analogous Revolutionary entities declared themselves solons and promulgated or revised constitutions on their own authority, sometimes without even waiting for new elections that might have given their constituents more say in the matter, or at least advance notice of their specific constitutional intentions.¹⁰

In late 1777, patriot leaders in the Continental Congress proposed a set of Articles of Confederation to govern relations among the thirteen states. This document was then sent out to be ratified by the thirteen state legislatures, none of which asked the citizens themselves to vote in any special way on the matter.

Things began to change as the Revolution wore on. In 1780, Massachusetts enacted a new state constitution that had come directly before the voters assembled in their respective townships and won their approval. In 1784, New Hampshire did the same. These local dress rehearsals (for so they seem in retrospect) set the stage for the Preamble’s great act of continental popular sovereignty in the late 1780s.¹¹

As Benjamin Franklin and other Americans had achieved famous advances in the natural sciences—in Franklin’s case, the invention of bifocals, the lightning rod, and the Franklin stove—so with the Constitution America could boast a breakthrough in political science. Never before had so many ordinary people been invited to deliberate and vote on the supreme law under which they and their posterity would be governed. James Wilson fairly burst with pride in an oration delivered in Philadelphia to some twenty thousand merrymakers gathered for a grand parade on July 4, 1788. By that date, enough Americans had said “We do” so as to guarantee that the Constitution would go into effect (at least in ten states—the document was still pending in the other three). The “spectacle, which we are assembled to celebrate,” Wilson declared, was “the most dignified one that has yet appeared on our globe,” namely, a

people free and enlightened, establishing and ratifying a system of government, which they have previously considered, examined, and approved! …

… You have heard of Sparta, of Athens, and of Rome; you have heard of their admired constitutions, and of their high-prized freedom.… But did they, in all their pomp and pride of liberty, ever furnish, to the astonished world, an exhibition similar to that which we now contemplate? Were their constitutions framed by those, who were appointed for that purpose, by the people? After they were framed, were they submitted to the consideration of the people? Had the people an opportunity of expressing their sentiments concerning them? Were they to stand or fall by the people’s approving or rejecting vote?¹²

The great deed was done. The people had taken center stage and enacted their own supreme law.

FROM ANOTHER ANGLE, the drama was just beginning. Preamble-style popular sovereignty was an ongoing principle. No liberty was more central than the people’s liberty to govern themselves under rules of their own choice;¹³ and the Preamble promised to secure this and other “Blessings of Liberty” not just to the Founding generation, but also, emphatically, to “our Posterity.”

As Wilson explained in Pennsylvania’s ratification debates, the people’s right to “ordain and establish” logically implied their equal right “to repeal and annul.” The people “retain the right of recalling what they part with.… WE [the people] reserve the right to do what we please.” Leading Federalists in sister states echoed this exposition. North Carolina’s James Iredell, who would one day sit on the Supreme Court alongside Wilson, reminded his listeners that in America “our governments have been clearly created by the people themselves. The same authority that created can destroy; and the people may undoubtedly change the government.” Not content to leave the matter implicit, Virginia ratified the Constitution on the express understanding that “the powers granted under the Constitution, being derived from the people of the United States, may be resumed by them, whensoever the same shall be perverted to their injury or oppression.”¹⁴

Similar ideas surfaced in New York. Writing as Publius in The Federalist No. 84, Alexander Hamilton explained that “here, in strictness, the people … retain everything [and] have no need of particular reservations. ‘WE THE PEOPLE …, to secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution.…’ Here is a [clear] recognition of popular rights.” By “popular rights” Publius meant rights of the people qua sovereign, including their right to revise what they had created. Following Virginia’s lead, New York used its ratification instrument to underscore its understanding of the Preamble’s principles: “All power is originally vested in, and consequently derived from, the people.… The powers of government may be reassumed by the people whensoever it shall become necessary to their happiness.”¹⁵

These assorted speeches, essays, and ratification texts emphasizing the “popular rights” that “the people” “retain” and “reserve” and may “resume” and “reassume” exemplified what the First Congress had centrally in mind in 1789 when it proposed certain amendments as part of a general bill of rights. With its last three words proudly paralleling the Preamble’s first three, the sentence that eventually became the Ninth Amendment declared rights implicitly “retained by the people,” such as their right to alter what they had ordained. Similarly, the Tenth Amendment declared powers “reserved … to the people,” and the First Amendment guaranteed “the right of the people peaceably to assemble” in constitutional conventions and elsewhere. In all these places, the phrase “the people” gestured back to the Constitution’s first and most prominent use of these words in the Preamble.¹⁶

In the First Congress, lawmakers pointed not just to the Preamble’s words but also to its more immediate “practical” effect concerning the right to amend.¹⁷ By ordaining the federal Constitution, Americans had in practice altered their state constitutions and abolished the Articles of Confederation. For example, most state constitutions in place before 1787 had given state legislatures power to issue paper money and emit bills of credit.¹⁸ The federal Constitution abrogated these and other powers by fastening a new regulatory framework upon state governments.¹⁹ In deed as well as word, the Preamble stood for ongoing popular sovereignty—the people’s right to change their mind as events unfolded.

Even more dramatically, the Preamble by its very deed implicitly affirmed that the people’s right to amend ultimately required only a simple majority vote, at least within a state. In Massachusetts, a two-thirds vote of the electorate had been required to launch the 1780 state constitution; and the document had provided for an amendment process to begin in 1795 if endorsed by “two-thirds of the qualified voters … who shall assemble and vote.” Yet the federal Constitution drafted at Philadelphia proposed to modify this state constitution well before 1795, and to do so by a mere majority of a specially elected Massachusetts convention, which in the end voted 187 to 168 for the new legal order—far short of two-thirds, and not by a direct tally of all the qualified voters. Even so, once this vote occurred, Massachusetts Anti-Federalists immediately acquiesced, acknowledging that the people had truly spoken, albeit not in the precise manner that had been set out in 1780. In essence, Bay Staters in 1788 reconceptualized their earlier amendment clause as merely one way, rather than the only way, by which the sovereign people might alter their government.²⁰ Ratification of the federal Constitution broke similar new ground in several of Massachusetts’s sister states, where analogous state constitutional issues arose.

Preamble-style ratification also broke new ground by establishing that the people’s right to alter government did not require proof of past tyranny. When the Declaration of Independence trumpeted “the Right of the People to alter or abolish” governments, it had limited this right (as had the influential English philosopher John Locke)²¹ to situations in which governments had grossly abused their powers—“whenever any Form of Government bec[ame] destructive” of its legitimate ends. The longest section of the Declaration aimed precisely to detail the insufferable “Evils,” the “long Train of Abuses and Usurpations, pursuing invariably the same Object, evinc[ing] a design to reduce [Americans] under absolute Despotism.” Such a clear pattern of “repeated Injuries and Usurpations, all having in direct Object the Establishment of an absolute Tyranny” justified a people in exercising their right to change government, even if the consequence would be all-out war against the king.

By the late 1780s, Americans had toppled the old order of George III, and the right to alter could now operate far more freely. Unlike the Declaration, the Constitution did not purport to show—because it did not need to show—that the regime it was amending was tyrannical. The people could properly amend whenever they deemed the status quo outdated or imperfect. If reformers proposed a change, ballots rather than bullets would decide the contest. In contrast to Old World monarchs, New World public servants would accept the people’s constitutional verdict without waging war on them.

Americans understood this transformation even as they were doing the transforming and marveling at their own handiwork. “The people may change the constitutions whenever and however they please,” explained Wilson. “It is a power paramount to every constitution, inalienable in its nature.”²² By their very act of assembling in ratifying conventions to debate the Philadelphia plan, the people were making these words flesh. “Under the practical influence of this great truth, we are now sitting and deliberating, and under its operation, we can sit as calmly and deliberate as coolly, in order to change a constitution, as a legislature can sit and deliberate under the power of a constitution, in order to alter or amend a law.”²³

Outside Pennsylvania, other Federalists followed Wilson’s cue. North Carolina’s Iredell contrasted “other countries,” where the people could rightfully change their government only if the king either consented or acted tyrannically (and thus forfeited his right to rule), with America, where “the people may undoubtedly change the government, not because it is ill exercised, but because they conceive another form will be more conducive to their welfare.” In New York, Publius likewise pushed beyond the Declaration in championing “the right of the people to alter or abolish the established Constitution, whenever they find it inconsistent with their happiness.”²⁴

In going a step beyond the Declaration, the Preamble also went several steps beyond ancient republics and the British constitution. In seventeenth- and eighteenth-century England, constitutional reformers often claimed, with varying degrees of accuracy and sincerity, that they were merely restoring good old rules unearthed from a hallowed past rather than minting entirely new rules for a modern era. Shrouding their founding moments in myth and superstition, ancient Greek republics had been even less open to progressive alteration. Solon had stipulated that his constitution for Athens could not be amended for a hundred years, and Lycurgus had contrived to render his Spartan constitution wholly unamendable.²⁵ Contrasting the Preamble with these models from antiquity, Madison/Publius in The Federalist No. 38 took pride in the remarkable “improvement made by America on the ancient [Greek] mode of preparing and establishing regular plans of government.”²⁶

AMERICA’S FOUNDING GAVE the world more democracy than the planet had thus far witnessed. Yet many modern Americans, both lawyers and laity, have missed this basic fact. Some mock the Founding Fathers as rich white men who staged a reactionary coup, while others laud the framers as dedicated traditionalists rather than democratic revolutionaries. A prominent modern canard is that the very word “democracy” was anathema to the Founding generation.²⁷ When today’s scholars quote the framers on how America’s Constitution broke with ancient Greek practices, the standard quotation comes not from Wilson’s July 4 oration or Madison’s similar Federalist No. 38, but rather from a passage in Madison’s Federalist No. 63 that is brandished to prove that the framers were less democratic than the ancients, and proudly so: “The true distinction between [ancient democracies] and the American governments, lies in the total exclusion of the people, in their collective capacity, from any share in the latter.… The distinction … must be admitted to leave a most advantageous superiority in favor of the United States.”

This conventional account misreads both Madison and the Constitution. True, Madison did harbor strong anxieties about the ability of a large mass of people to meet together to legislate. In another unfavorable comment on Greek-style democracy, he observed in The Federalist No. 55 that in “all very numerous assemblies, of whatever character[s] composed, passion never fails to wrest the sceptre from reason. Had every Athenian citizen been a Socrates, every Athenian assembly would still have been a mob.” However, Madison was not an antidemocrat scoffing at the limited capacities of ordinary folk, but rather a republican proceduralist pondering how best to structure lawmaking institutions. Even if every citizen were a philosopher king, how could a legislature function if composed of “six or seven thousand” (Madison’s hypothetical) all clamoring to be heard?

In his view, thousands of people could not have immediately and equally participated in the countless specific decisions implicated in drafting a proposed Constitution in Philadelphia, clause by clause. On the other hand, the issue of ratifying a completed, 4,500-word proposal was a simpler one more fit for democratic judgment. Should the document be approved, yes or no? Thus Madison and the other Philadelphia drafters proposed that their handiwork come before the American people, organized in specially elected statewide conventions. These conventions would be deliberative forums facilitating extended democratic discussion. Largescale direct referenda would have prevented the ultimate ratification votes from benefiting from detailed presentation of competing arguments on issues large and small. In each state, the convention debate process might properly take several weeks. Would it be fair to ask every voter in America to drop everything for so long a period? Wouldn’t it make more sense to ask ordinary voters to read the document on their own, discuss it with friends, and then deputize persons they most trusted to think like themselves to attend a special convention on their behalf? Such specially deputized delegates could then act as ordinary voters themselves would have done had they been present to hear all the extended analysis pro and con.

Nevertheless, the decision to ratify the Constitution via conventions rather than by direct popular votes did risk introducing distortions into the Founding process. Convention delegates might be systematically malapportioned, giving some regions within a state far more than their fair share of influence; delegates might betray the explicit or implicit instructions of ordinary voters; and so on. We shall revisit these possible distortions later in our story, after we have had occasion to examine more general issues of apportionment and representation in Revolutionary America. For now, let us simply note that conventions offered the promise of democratic deliberation that direct statewide popular votes would have lacked.

Similarly, as Madison and other Federalists saw the matter, judicial decisions should not occur via mass society-wide votes of guilty or innocent, liable or not liable, and in this sense The Federalist No. 63 correctly observed that the Constitution excluded the people “in their collective capacity” from day-to-day judicial governance in America. Yet clusters of ordinary citizens—juries—would indeed make crucial decisions after hearing presentations from different sides. Though far smaller than Greek juries (some five hundred jurors had sat in judgment of Socrates), American grand juries, criminal petit juries, and civil juries would enable ordinary Americans to participate directly and daily in American government.

In fact, the Constitution infused some form of democracy into each of its seven main Articles. Echoing the Preamble’s first three words, Article I promised that all members of the new House of Representatives would be elected directly “by the People.” No constitutional property qualifications would limit eligibility to vote for or serve in Congress; nor could Congress add any qualifications by statute. Also, Article I prohibited both state and federal governments from creating hereditary government positions via titles of nobility. Under Articles II and III, the presidency and federal judgeships would be open to men of merit regardless of wealth or lineage. Government servants in all three branches would receive government salaries, lest the right to hold office or public trust be restricted to the independently wealthy. Military hierarchies would answer to democratically elected leaders, not vice versa. Juries of ordinary people would counterbalance professional judges in the judicial branch, as militias of ordinary people would check professional armies in the executive branch. Article IV guaranteed every state a “Republican Form of Government”—that is, a government ultimately derived from the people, as opposed to an aristocracy or monarchy. (The word “republican” came from the same etymological roots—publica, poplicus—as the pivotal Preamble word “people,” whose Greek counterpart, demos, in turn underlay the word “democracy.”) If ordinary legislatures clogged necessary reforms, Article V enabled Americans to bypass these legislatures with specially elected conventions to propose and ratify new constitutional rules. Article VI banned Old World religious hierarchies from formally entrenching themselves in the federal government or excluding adherents of competitor religions from federal service. Finally, Article VII specified how the Preamble’s ordainment and establishment would take place.

The Federalist reflected these populist themes from start to finish. The first paragraph of Publius’s first essay reminded ordinary citizens that “you are called upon to deliberate on a new Constitution” and by an “election” set a new example in world history. The last paragraph of his last essay reiterated the point. “The establishment of a Constitution, in time of profound peace, by the voluntary consent of a whole people, is a prodigy.” Between these bookend paragraphs, Publius repeatedly extolled and elaborated the Preamble’s enactment of popular sovereignty.²⁸ Indeed, in The Federalist No. 39, Madison/Publius wrote that the “first question” to be asked about the Constitution as a whole was whether “the government be strictly republican”—essentially, “a government which derives all its powers directly or indirectly from the great body of the people,” as opposed to an aristocracy or monarchy. Why was this the first question? Because “no other form would be reconcilable with the genius of the people of America [and] the fundamental principles of the Revolution.” Throughout the rest of The Federalist, Publius linked this idea of republicanism to the Constitution’s defining characteristics—its extensive geographic and demographic reach; the interior design of each of its three main branches; its limits on state governments; and so on.²⁹ Similarly, in both his opening and concluding speeches before the Pennsylvania ratifying convention, Wilson pronounced the Constitution “purely democratical,” and in yet another speech he boasted that “the DEMOCRATIC principle is carried into every part of the government.”³⁰

Although some modern readers have tried to stress property protection rather than popular sovereignty as the Constitution’s bedrock idea, the words “private property” did not appear in the Preamble, or anywhere in the document for that matter. The word “property” itself surfaced only once, and this in an Article IV clause referring to government property. Above and beyond the Constitution’s plain text, its clear commitment to people over property shone through in its direct act: As we have seen, the Founders generally set aside ordinary property qualifications in administering the special elections for ratification-convention delegates.

The Founders’ decisions to waive these property rules in the special elections of 1787–88 built upon conceptual and practical foundations laid by several states when framing their state constitutions. In 1776, Pennsylvania militiamen who were unable to meet the property threshold for electing colonial legislators nevertheless voted for delegates to a special constitutional convention, which then drafted and promulgated (without any ratifying vote by the electorate) a remarkably democratic state constitution. By historian Pauline Maier’s estimate, Pennsylvania’s “constitutional convention [was] chosen under rules that expanded the electorate by as much as 50 to 90 percent.” Several years later, the framing and ratification of the Massachusetts Constitution featured even more direct participation by otherwise ineligible propertyless men. In essence, the Massachusetts experience drove a wedge between property qualifications for ordinary legislative elections—qualifications that the document raised compared to colonial rules still in operation in the late 1770s—and property qualifications for adopting the new constitution itself, qualifications that the new constitution eliminated altogether. Thus, the very document adding new property qualifications for ordinary elections was framed by a convention elected by all adult freemen regardless of property, and was then directly submitted to these freemen for ratification. (All freemen were also eligible to serve as delegates at the convention that drafted the proposed constitution.) Constitutional elections, the Massachusetts experience seemed to suggest, were different from ordinary elections and should rest on the broadest popular foundation. In neighboring New Hampshire, the state constitution of 1784 and its three previous unsuccessful incarnations were submitted to an expansive electorate that included all taxpaying New Hampshiremen—an electorate the state legislature in its implementing legislation referred to as “the People” with a capital P.³¹

Pennsylvania, Massachusetts, and New Hampshire were the three states whose constitution-ordaining procedures, going well beyond simple promulgation by the sitting legislature or its equivalent, most closely foreshadowed what the Preamble would call for at the federal level in 1787.³² At Philadelphia, Massachusetts’s Nathaniel Gorham explicitly drew upon his state’s experience when he declared that “many of the ablest men are excluded from the [state] Legislatures, but may be elected into a Convention.” For example, men “of the Clergy” were formally barred from serving in most state legislatures and elsewhere could not serve unless they owned real estate in their own names. Yet Gorham believed that such ordinarily ineligible men had proved “valuable in the formation & establishment” of the Massachusetts Constitution, and that the federal Constitution should likewise be ordained by conventions that would waive ordinary eligibility rules. Fellow Bay Stater Rufus King agreed, and predicted that such conventions would “draw[] forth the best men in the States.” Along with the inclusive ordainment experiences in Pennsylvania and New Hampshire, the high-profile Massachusetts precedent thus pointed those who drafted and implemented the Preamble toward the widest imaginable participation rules for the continental ordainment process.³³

THE WIDEST RULES imaginable in the eighteenth century, of course. From a twenty-first-century perspective, the idea that the Constitution was truly established by “the People” might seem a bad joke. What about slaves and freeborn women?

The question is particularly pointed in modern America because it reflects more than some purely subjective or theoretical definition of democracy. Rather, the sensibility underlying the question is itself a constitutional sensibility, informed by the very vision of democracy embodied in the United States Constitution. The Constitution as amended, that is. Later generations of the American people have surged through the Preamble’s portal and widened its gate. Like constitutions, amendments are not just words but deeds—flesh-and-blood struggles to redeem America’s promise while making amends for some of the sins of our fathers.

In both word and deed, America’s amendments have included many of the groups initially excluded at the Founding. In the wake of the Civil War, We the People abolished slavery in the Thirteenth Amendment, promised equal citizenship to all Americans in the Fourteenth Amendment, and extended the vote to black men in the Fifteenth Amendment. A half-century later, We guaranteed the right of woman suffrage in the Nineteenth Amendment, and during a still later civil-rights movement, We freed the federal election process from poll taxes and secured the vote for young adults in the Twenty-fourth and Twenty-sixth Amendments, respectively. No amendment has ever cut back on prior voting rights or rights of equal inclusion. (If this be Whiggism, Americans should make the most of it.)

Previously excluded groups have played leading roles in the amendment process itself, even as amendments have promised these groups additional political rights. Black voters, already enfranchised in many states, propelled the federal Fifteenth Amendment forward; women voters helped birth the Nineteenth; and the poor and the young spearheaded movements to secure their own constitutionally protected suffrage. Through these dramatic acts and texts of amendment, We the People of later eras have breathed new life into the Preamble’s old prose.

WHICH BRINGS US BACK to the Constitution as it looked in the eighteenth century. It’s worth remembering that the Founding generation had fought a revolution against one of the world’s most powerful monarchies, and that the most staunchly conservative elements of colonial society had fled America during the 1760s and 1770s. True, the act of constitution fell far short of universal suffrage as modern Americans understand the idea, but where had anything close to universal suffrage ever existed prior to 1787? Ancient democracies had excluded women and slaves. In classic republican theory, the rights of collective self-government stood shoulder to shoulder with the responsibilities of collective self-defense.³⁴ As a rule, women did not serve in the military; neither should they vote, the argument went. According to eighteenth-century political theory, their interests in both war and politics would find representation through their fathers, brothers, husbands, and sons. Slaves—widely viewed not as part of “the People” but rather as aliens who in war might be more likely to aid the enemy than to defend the polity—were even more obvious candidates for disenfranchisement.³⁵ Also, in a time of widespread voice voting in public, married women and slaves could hardly have voted their own minds, knowing that their husbands and masters retained broad powers of physical chastisement over them.

It is scarcely surprising, then, that no Revolutionary-era state witnessed expansive woman suffrage (although New Jersey apparently did allow a few propertied widows to vote)³⁶ or that no regime either before or after the Revolution ever gave the vote to slaves (as distinct from ex-slaves). In failing to immediately enfranchise slaves or freeborn women in its own ratification process, the Constitution was not backsliding. It was simply not leaping forward.

And yet … in important ways the document did worsen the plight of those most cruelly denied the blessings of liberty. Slavery was the original sin in the New World garden, and the Constitution did more to feed the serpent than to crush it.

During the 1770s, soaring rhetoric of liberty and earnest debate about the sources of legitimate authority pulled many Americans toward abolition. The world’s first antislavery society was born in Philadelphia in 1775. By 1787, Massachusetts judges and juries, reflecting the evolving practices and norms in their local environment, had effectively outlawed slavery in the Bay State. Elsewhere, systems of gradual emancipation began to emerge, aiming to put slavery on what Lincoln would later call a path of “ultimate extinction.” In 1780, Pennsylvania enacted a law under which all children born to slave mothers after the enactment date would be released from service on their twenty-eighth birthdays. Connecticut and Rhode Island passed similar laws in the early 1780s, and several other Northern states would join the crusade over the next two decades. In 1784, the Confederation Congress came close to prohibiting slavery in Western lands after 1800, and in 1787 it barred slavery in the Northwest Territory. By 1788, the ten most northerly states had effectively banned further importation of African slaves, North Carolina had imposed a tax on slave imports, and even South Carolina had temporarily suspended its participation in this transatlantic traffic.³⁷

In sharp contrast, nothing in the original Constitution aimed to eliminate slavery, even in the long run. No clause in the Constitution declared that “slavery shall cease to exist by July 4, 1876, and Congress shall have power to legislate toward this end.” Although many slave children were the flesh-and-blood offspring of the men who ordained and established the Constitution, the blessings of liberty were hardly secured to this posterity, or to the millions of other slave children yet unborn.

In fact, many of the Constitution’s clauses specially accommodated or actually strengthened slavery, although the word itself appeared nowhere in the document. Article I temporarily barred Congress from using its otherwise plenary power over immigration and international trade to end the importation of African and Caribbean slaves. Not until 1808 would Congress be permitted to stop the inflow of slave ships; even then, Congress would be under no obligation to act. Another clause of Article I, regulating congressional apportionment, gave states perverse incentives to maintain and even expand slavery. If a state freed its slaves and the freedmen then moved away, the state might actually lose House seats; conversely, if it imported or bred more slaves, it could increase its congressional clout. Article II likewise handed slave states extra seats in the electoral college, giving the South a sizable head start in presidential elections. Presidents inclined toward slavery could in turn be expected to nominate proslavery Article III judges. Article IV obliged free states to send fugitive slaves back to slavery, in contravention of background choice-of-law rules and general principles of comity. That Article also imposed no immediate or long-run constitutional restrictions on slaveholding in federal territory. Article V gave the international slave trade temporary immunity from constitutional amendment, in seeming violation of the people’s inalienable right to amend at any time, and came close to handing slave states an absolute veto over all future constitutional modifications under that Article.

In the near term, such compromises made possible a continental union of North and South that provided bountiful benefits to freeborn Americans. But in the long run, the Founders’ failure to put slavery on a path of ultimate extinction would lead to massive military conflict on American soil—the very sort of conflict whose avoidance was, as we shall now see, literally the primary purpose of the Constitution of 1788.

“form a more perfect Union”

“We the People of the United States …” United how? When? Few questions have cast a longer shadow across American history. Jefferson Davis had one set of answers, Abraham Lincoln another. And the war came.

In word and deed, the Constitution yielded its own answers to these epic questions. The very process by which Americans in thirteen distinct states ordained the Constitution in the late 1780s and early 1790s confirmed that they were not a single indissolubly united people prior to the act of ordainment. But that act, along with key words in the Preamble and companion language later in the document, put all concerned on fair notice: After ordainment, Americans from consenting states would indeed “form a more perfect Union” that prohibited unilateral exit. Thus, the establishment of “this Constitution” was not just the world’s most democratic moment, but also, in a manner of speaking, the world’s largest corporate merger.

To put that merger in context, we must recall how the New World took shape in the seventeenth and early eighteenth centuries. British North America grew up not as one continental legal entity but rather as juridically separate colonies founded over a span of many decades. Each colony had its own unique legal charter or other founding instrument—its proto-constitution—and its own laws, governmental institutions, and customary usages. The precise location of the geographic and jurisdictional lines dividing the provinces sometimes blurred or shifted over the years. Nevertheless, it was clear during the century before 1776 that, say, Massachusetts, Maryland, and Virginia were three quite distinct political societies—tied to a common Crown, but as legally separate from one another as India and Ireland.³⁸

The thirteen colonies that ultimately revolted were not the only British outposts in the new continent. As of 1763, these thirteen were nestled between the British West Indies and Floridas to the south, British Nova Scotia to the northeast, and British Quebec to the northwest. Prior to 1776, it was hardly foreordained that these thirteen, and only these thirteen, would eventually unite to form a single legal entity. To be sure, as children of the same Mother England living in adjoining lands far from their parent country, the British North American provinces had much in common, culturally, ethnically, and geostrategically. In the years following the French and Indian War, England began to pay increasing and often unwanted attention to her American brood, adopting a series of stern measures applicable or potentially applicable to all, and thereby driving many of them closer together in resistance. In 1774, representatives of twelve colonies from New England through the Carolinas met in Philadelphia as part of a Continental Congress, which was structured as a kind of international conclave, with each colonial delegation voting as an equal unit. The Congress ended with a public message to Quebec urging it to send delegates to a second Congress to begin in May 1775, and private letters to the colonies of St. John’s, Nova Scotia, Georgia, East Florida, and West Florida asking them to stand together with the twelve in boycotting British goods.³⁹ None of these invitees came in May, but Georgia showed up later. Ultimately, in July 1776, thirteen colonies declared themselves independent of the British Crown and the British Empire.

But did they remain independent of one another? The Declaration of Independence was issued in the name of “the Representatives of the united States of America, in general Congress,” but exactly how were these long-distinct states “united”? Were they more legally “united” than, say, the modern United Nations? Was the word “united” part of the name of a new indivisible nation, or simply an adjective describing thirteen states, acting in unanimous coordination?

In the pivotal sentence of the famous hand-signed 1776 parchment, the word “united” appeared in lowercase, describing the plural and capitalized noun, “States.”⁴⁰ In the banner stretching across the top, the various fonts and capitalizations also could be read to suggest an alliance more than an indivisible nation:

The unanimous Declaration of the thirteen united States of America

The only place where the Declaration capitalized the adjective so as to make it look like part of a legal name was in a phrase describing “these United Colonies,” but strictly speaking, as British colonies the thirteen had never been united as a distinct continental entity.⁴¹ Twice the Declaration proclaimed the thirteen to be “Free and Independent States”—perhaps implying by its plural noun, though never quite stating, that the thirteen were independent even of one another, save as they chose to coordinate their actions.⁴² When the Connecticut assembly met for its regular session in the fall of 1776, it quoted Congress’s “Free and Independent States” language, resolved to “approve of the Declaration of Independence published by said Congress,” and then further resolved “that this Colony is and of right ought to be a free and independent State.”⁴³

The very act of the declaration, and the structure of the body doing the declaring, seemed to confirm the qualified independence of each state. Each colony in the Congress voted as a unit—the colonies were unanimous in July 1776, but not the individual delegates, whose individual votes were never tallied across different colonies. Each delegation routinely obeyed “instructions” issued by its home colony; and in the formal decision to declare independence, each delegation acted on the specific instruction or authorization of its home regime.⁴⁴ Unlike the newly emerging state legislatures, each of which claimed a right to bind all within the state, patriot and loyalist alike, the Declaration did not purport to bind any state or colony absent its consent. Quebec, Nova Scotia, and the Floridas, for instance, were left out.

The legislative history behind the Declaration is also suggestive. In mid-May 1776, the Congress styled its most important statement yet not as an “order” or “instruction,” but as a “recommend[ation]” that individual colonies adopt new governments wherever the old Crown-linked regimes had lapsed. Three weeks later, delegates from several colonies remained unwilling to vote for independence and reminded the others that Congress had no right to bind any dissenting province, “the colonies being as yet perfectly independent of each other.” If independence were prematurely agreed to by the others, these unready delegates threatened to “retire”—that is, quit Congress—and warned that “possibly their colonies might secede from the Union.” In response, delegates from colonies eager for immediate independence openly conceded that each colony remained free to stay in the budding alliance or to secede from it.⁴⁵

Over the next few weeks, however, wavering colonies moved toward independence, and the alliance held firm. Events were rushing forward furiously. American patriots were already locked in armed combat with British regulars, and George III had recently dispatched a massive assault force—some thirty thousand men—to crush all rebellion. In the grim words of the Declaration, the king “is at this Time, transporting large Armies of foreign Mercenaries to compleat the Works of Death, Desolation, and Tyranny, already begun.” Practically speaking, once a colony formally declared its independence from the Crown, there could be no going back. Without a sizable cadre of colonies willing to plunge ahead together, military and diplomatic prospects looked bleak. If some colonies strayed too far ahead of the rest politically, the vanguard would become a tempting military target. Indeed, if any foot-dragging colony ultimately sided with Britain, it could provide staging grounds for the king’s soldiers, who would be aided by local loyalists controlling the levers of colonial government.⁴⁶ Better, then, for each colony to stay in tight formation with the others than to break ranks. Thus, the thirteen colonies took care to synchronize their decisions as they headed uncertainly toward independence. Yet mere synchronization hardly meant that the thirteen necessarily became one indivisible nation in July 1776. (No one thinks that the tight synchronization of the D-Day invasion somehow united Britain, America, and Canada as one indivisible nation in June 1944.)

Clearly, the thirteen states were “united” in unanimously declaring independence and pledging to fight together.⁴⁷ This unanimity, however, said little about the general legal authority of the Continental Congress in any future situation in which the newly independent states might strongly disagree among themselves, or where one or more states might seek to leave the alliance after independence had been won. Nor did the Declaration’s text commit the thirteen states to anything other than independence. Fairly construed, the Declaration and other decisions made in Congress did call upon the thirteen to hang together during the campaign for independence. Beyond this, much of the future relationship among the states—or put differently, between the individual states and the continental collectivity—had yet to be hammered out.

For instance, how would future nonunanimous rules be made? By simple majority vote, or something more? Would some issues require more consensus than others? Would each state count equally, or would more populous states have more votes?⁴⁸ If the latter, would slaves count, and if so, how much? How would the burdens of raising men and materiel be allocated among the several states? By what procedures would disputes between states be resolved? If a state found itself unhappy with its partners after independence had been won, under what conditions, if any, could it withdraw from its sister states and go its own way?

WELL BEFORE IT ADOPTED the Declaration, the Continental Congress understood that such questions had to be addressed in some future legal instrument that each new state would need to ratify. On June 7, 1776, when Richard Henry Lee, seconded by John Adams, famously moved the magic words “Resolved, That these United Colonies are, and of right ought to be, free and independent States,” he concluded his motion with a proposal “that a plan of confederation be prepared and transmitted to the respective Colonies for their consideration and approbation.” Four days later—weeks before it finally approved the Lee-Adams independence language—the Congress voted to appoint a committee “to prepare and digest the form of a confederation to be entered into between these colonies.”⁴⁹

When such a plan ultimately emerged from the post-independence Congress, it underscored in word and deed the sovereignty of each individual state. The opening passages of the Articles of Confederation variously described the arrangement among the states as a “confederacy,” a “confederation,” and a “firm league of friendship with each other” in which “each state retains its sovereignty, freedom, and independence.” Legally, the words “confederacy,” “confederation,” and “league” all connoted the same thing: The “United States” would be an alliance, a multilateral treaty of sovereign nation-states.⁵⁰ Moreover, the word “retains” strongly suggested that each state was already sovereign and had been so since independence. So, too, the words “freedom, and independence” echoed the Lee-Adams motion and Jefferson’s Declaration itself while making it clear, as the earlier language had not, that each state was “free and independent.”⁵¹ The 1780 Massachusetts Constitution further reinforced the point in a clause that reworked the language of the Articles: “The people of this commonwealth have the sole and exclusive right of governing themselves, as a free, sovereign, and independent state.”⁵² The New Hampshire Constitution of 1784 featured a virtually identical clause.⁵³

The act of confederation confirmed the text of Confederation. The Articles did not formally go into effect until ratified by each and every state. Thus, no state was bound absent its own consent. Historian Jack Rakove has observed that during debates over the drafting of the proposed Articles—debates after the Declaration of Independence—“threats of disunion flowed freely. James Wilson warned that Pennsylvania would never confederate if Virginia clung to its western claims. The Virginia delegates replied that … their constituents would never accept a confederation that required their sacrifice.” South Carolina’s Thomas Lynch, Jr., sternly advised his fellow congressmen on July 30, 1776, that “if it is debated, whether … slaves are [our] property, there is an end of the confederation.”⁵⁴ If independence in early July had given birth to one indivisible nation rather than thirteen sovereign states working together, how could so many of the Declaration’s signers speak so freely of quitting the union? Why was each state’s consent even necessary to formally activate the Articles?

The Articles further provided that any subsequent amendment would require the states’ unanimous approval—the hallmark of a multilateral treaty regime based on the sovereignty of each state, as opposed to a national regime founded on a truly national people. If the people retained an inalienable right to amend, why should an overwhelming majority of Americans be thwarted simply because a single state—perhaps a tiny one—refused?⁵⁵ The obvious answer was that both before and after ratifying the Articles, the people of each state—and not the people of America as a whole—were sovereign. A state populace would no more be bound by confederate amendments agreed to in sister states than it would be obliged to obey laws enacted in Geneva or Amsterdam. As Philadelphia delegate William Paterson (who would one day serve on the U.S. Supreme Court) explained these defining traits of the Articles, “This is the nature of all treaties. What is unanimously done, must be unanimously undone.”⁵⁶

The Confederation’s provisions governing daily relations among the states further reinforced its basic structure as a multilateral treaty. Each state would appoint a delegation of up to seven members, with each delegation casting a single state vote regardless of the delegation’s overall size or the state’s underlying population. Delegates would receive their pay from state governments, which could alter salaries at will to keep delegates in line. State governments also routinely instructed their delegations on how to vote, and retained the right to “recall” and replace their ambassadorial delegates “at any time.”⁵⁷

Given the clarity of the Confederation’s foundational premise of state sovereignty, its classic international architecture, and its self-description as a “league,” how could so many Americans in ensuing eras—Lincoln most famously—have denied that individual states were sovereign prior to 1787? Partly by mistakenly reading later history back into an earlier period. The Constitution itself set a trap for the unwary by using old legal words in new legal ways without clear warning. Just as the word “Congress” under the Constitution described a different and more powerful institution than did the word “Congress” under the Articles,⁵⁸ so the phrase “United States” in the Constitution meant something different and much stronger than did the same syllables in the earlier document. It is only a happy coincidence that the same thirteen “United States” from the Declaration and the Articles became the first thirteen “United States” in the Constitution. We must remember that when George Washington took office, North Carolina and Rhode Island were not part of the “United States” as the Constitution used the term. Thus the Preamble spoke precisely of its purpose to “form” a new—more perfect—union rather than simply “continue” or “improve” the old union.

Further confusion about the pre-1787 location of sovereignty has arisen because later readers have often misunderstood what sovereignty did and did not mean to late-eighteenth-century American lawyers. Sovereign states under traditional legal principles were free to enter multilateral treaties, leagues, federations, and confederations without surrendering their ultimate sovereignty. In the words of Swiss jurist Emmerich de Vattel, whose Law of Nations was widely read and cited in Revolutionary America, “Several sovereign and independent states may unite themselves together by a perpetual confederacy, without each in particular ceasing to be a perfect state. They will form together a federal republic: the deliberations in common will offer no violence to the sovereignty of each member.” In his influential Second Treatise, Locke had offered a similar account of the ongoing sovereignty of governments merely “in league” with one another, who had not combined “to make one body politic.” William Blackstone’s Commentaries also affirmed the continuing sovereignty of nation-states that merely joined together in “foederate alliance.”⁵⁹ Hence, the mere fact that each of the thirteen states agreed to what the Articles called a “perpetual” “union” in no way negated each state’s continuing sovereign status.

Nor was each state’s ultimate legal sovereignty undermined by the fact that Congress—basing its authority initially on the Declaration and de facto alliance and later on the formal Articles—acted and spoke on behalf of the individual states in diplomatic dealings with foreign powers.⁶⁰ Classic leagues of sovereign states, such as the eighteenth-century Dutch and Swiss confederacies, often coordinated the military and diplomatic affairs of the individual member states. Vis-à-vis the rest of the world, the thirteen American states could act as a unit, so long as their league held together and each state consented to be represented by Congress. Yet this apparent external unity while the Confederation continued intact said little about whether and how a formally “sovereign” state might one day lawfully exit the league.⁶¹

What, then, did each state’s ultimate “sovereignty” mean, and how was a “confederation” or “league” any different than a single sovereign nation-state? Within the interior of daily arrangements, a very strong confederacy might well approximate a decentralized nation-state. A confederacy might give important powers, including all powers over foreign affairs, to its common council, while a nation might leave many issues to be decided by local subunits. But at crucial junctures of system creation, amendment, and abolition, the differences could be dramatic. A confederacy essentially rested on the ongoing voluntary participation of its sovereign member states. Each sovereign member of a classic confederacy was free not to join at the moment of creation, typically free to refuse to accede to any later proposed amendment, and ultimately free to leave if, in its good-faith judgment, the core purposes of the confederation were going unfulfilled. Based on the Latin foedus (meaning treaty or covenant) and its cognate fides (faith), a traditional “confederated” union ultimately depended on the good faith and voluntary compliance of member states.⁶² Thus the precise language of the Articles’ closing clause—in which the delegates of sovereign states agreed to “solemnly plight and engage the faith of our respective constituents”—confirmed the basic structure announced in the document’s opening words.

Alas, plighted faith did not always translate into actual performance. Although on paper the Congress under the Articles enjoyed some important powers, it had no effective means of carrying them out. It could not directly tax individuals or legislate upon them; it had no explicit “legislative” or “governmental” power to make binding “law” enforceable in state courts; it lacked broad authority to set up its own general courts; and it could raise troops and money only by “requisitioning” contributions from each state. On paper, such requisitions were “binding.” In practice, they were mere requests. As one wag put it, Congress “may declare every thing, but do nothing.” By 1787, the Confederation was in shambles. Various states failed to honor requisitions, enacted laws violating duly ratified treaties, waged unauthorized local wars against Indian tribes, and maintained standing armies without congressional permission—all in plain contravention of the Articles.⁶³

America needed a new system. But how to launch it?

THE ANSWER LAY in the Preamble’s matching bookend, Article VII. The Preamble began the proposed Constitution; Article VII ended it. The Preamble said that Americans would “establish this Constitution”; Article VII said how we would “Establish[] this Constitution.” The Preamble said this deed would be done by “the People”; Article VII clarified that the people would act via specially elected “Conventions.” The Preamble invoked the people of “the United States”; Article VII defined what that phrase meant both before and after the act of constitution. The Preamble consisted of a single sentence; so did Article VII. The conspicuous complementarity of these two sentences suggests that they might sensibly have been placed side by side, but the Philadelphia architects preferred instead to erect them at opposite ends of the grand edifice so that both the document’s front portal and rear portico would project the message of popular sovereignty, American style.

According to Article VII, “The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same.”

The last seven words clinch the case for the sovereignty of each state prior to 1787. The very act of constitution itself began with the premise that each state prior to ratification was free and independent—free to decide for itself whether to “form a more perfect Union” with its sister states or instead go its own way. No state could be bound by the new plan unless it chose that fate for itself; hence Rhode Island and North Carolina found themselves outside the new United States when George Washington took his oath of office on April 30, 1789.

Thus, the text of the Constitution did not say, and the act of constitution did not do, something like the following: “Because the United States is [sic] already one sovereign and indivisible nation, the ratification of nine states shall suffice to establish this Constitution in all thirteen United States.” Instead, the text and act of constitution envisioned a possible dissolution of the old union, with nine or more states going one way while a minority of free and independent sovereign states veered off. In effect, the very act of constitution amounted to a mass secession from the old, confederated united states.

The prospect that some subset of states might secede from the Confederation and reunite under a new Constitution came into view in the opening days of the Philadelphia drafting convention, when Wilson floated the idea that the Constitution could be ratified on the footing of a “partial union, with a door open for the accession of the rest” of the states at some later time. Wilson meant to remind smaller states of the precariousness of their position in the event they were left behind. Small-state men like Paterson were quick to call the bluff. Alluding to “the hint thrown out heretofore by Mr. Wilson of the necessity to which the large States might be reduced of confederating among themselves, by a refusal of the others to concur,” Paterson welcomed them to “unite if they please, but let them remember that they have no authority to compel the others to unite.” Long after the large-state/small-state wrangling had ended, the point of legal principle remained. In Wilson’s words: “As the Constitution stands, the States only which ratify can be bound.”⁶⁴

But how could such a secession and partial reunion be squared with the Articles of Confederation? The closing section of that document provided that “the Articles of this Confederation shall be inviolably observed by every state, and the union shall be perpetual; nor shall any alteration at any time hereafter be made in any of them; unless such alteration be agreed to in a Congress of the United States, and be afterwards confirmed by the legislatures of every state.” If the proposed Constitution were an amendment of the Articles (an amendment of the form, “Delete everything thus far and replace it as follows …”), then how could only nine states suffice? Alternatively, if the proposed Constitution were a flat repudiation of the Articles, then how could nine or more ratifying states justify abandoning their supposedly “perpetual” union with the remaining states?⁶⁵

A strong realpolitik answer was that sovereign states sometimes broke their pledges in order to safeguard their vital interests.⁶⁶ If repudiation of the Articles would violate the niceties of international law, so be it. The very violation of the Articles implicit in the Constitution’s ratification by a supermajority of nine or more states would only prove that the Confederation was a failed experiment.

A more legalistic answer was that the material breaches of promised state performance under the Articles gave each compacting party—each state—a right to rescind the agreement under general principles of contractual and international law. Blackstone’s influential Commentaries had noted that in the case of a nonconfederate, “incorporate union” such as the 1707 union of England and Scotland (the very kind of more perfect union that, as we shall see, the Constitution would later propose) no rescission option existed: “The two contracting states are totally annihilated [qua sovereign states], without any power of revival; and a third arises from their conjunction, in which all the rights of sovereignty … must necessarily reside.” But in the case of a simple “foederate alliance”—that is, a mere confederation or league of sovereign states—an infringement of fundamental conditions “would certainly rescind the compact.”⁶⁷

Nor did the language in the Articles of Confederation that “the union shall be perpetual” doom this legal analysis. This language was itself yoked to a mandate that the Articles “shall be inviolably observed by every state.” Under standard principles of international law, each of these yoked mandates was a condition of the other. When inviolable observation lapsed, so did the obligation of perpetual union. Indeed, international law principles helped explain why perpetuity and inviolability were so pointedly paired. As the influential jurist Vattel made clear, “Treaties contain promises that are perfect and reciprocal. If one of the allies fails in his engagements, the other may … disengage himself from his promises, and … break the treaty.”⁶⁸ Thus, the legalistic argument went, the decisive fact about the Confederation was that it was a self-described league, a multilateral treaty. The word “perpetual” merely specified what kind of league it would be: the firmest of leagues, but a league nonetheless.

When pressed, leading Federalists at times resorted to this legalist defense of the act of constitution as embodied in Article VII. Having privately penned the breached-treaty argument in the months before Philadelphia,⁶⁹ Madison repeatedly advanced this claim in the closed-door deliberations. “As far as the articles of Union were to be considered as a Treaty only of a particular sort, among the Governments of Independent States,” the writings of various “Expositors of the law of Nations” clearly suggested that “a breach of any one article, by any one party, leaves all the other parties at liberty, to consider the whole [compact] as dissolved.”⁷⁰ Several months later, Madison/Publius went public with the idea in The Federalist No. 43:

A compact between independent sovereigns, founded on ordinary acts of legislative authority, can pretend to no higher validity than a league or treaty between the parties. It is an established doctrine on the subject of treaties, that all the articles are mutually conditions of each other; that a breach of any one article is a breach of the whole treaty; and that a breach, committed by either of the parties, absolves the others, and authorizes them, if they please, to pronounce the compact violated and void. Should it unhappily be necessary to appeal to these delicate truths for a justification for dispensing with the consent of particular States to a dissolution of the federal pact, will not the complaining parties find it a difficult task to answer the MULTIPLIED and IMPORTANT infractions with which they may be confronted?

Other leading Federalists, including South Carolina’s Charles Cotesworth Pinckney (who had studied law at Oxford under Blackstone himself) and North Carolina’s James Iredell (a future justice), mustered similar public defenses of Article VII in their home states.⁷¹

For sound rhetorical reasons, the Federalists tended to whisper this legalistic defense rather than shout it from the rooftops.⁷² Few friends of the Constitution were as forthright on the issue as Madison/Publius, who himself put the point as softly as possible—calling the question “very delicate,” prefacing his exposition with a capitalized “PERHAPS,” and admitting that he raised the breached-treaty defense “unhappily.” A breached treaty was voidable, not void ab initio. A state had a right to withdraw, but it also had a right to stay and demand full performance. Even if it was legally permissible, was withdrawal wise? What if the Constitution failed to win the assent of nine states? Even a tottering alliance might be better than none, and Madison was not the kind of man to pull down his only shelter, however ramshackle, before fitting up his new abode. Hence his closing comment: “The time has been when it was incumbent on us all to veil the ideas which this paragraph exhibits.”

Conclusively establishing the requisite breaches would have required lots of ugly finger-pointing—hardly the kind of thing conducive to launching a new nation in the spirit of harmony. Any direct references to specific state violations of the Articles risked causing offense to particular persons or states that the Federalists were seeking to woo.⁷³ As a rule, the best Federalist strategy was to blame everything on the tiny, ill-governed, and obstreperous state of Rhode Island, which had first thwarted needed reforms of the Confederation and then boycotted the Philadelphia Convention. Additionally, the precise details of any ultimate breached-treaty defense would depend on which state or states might choose to both reject the Constitution and then complain about the dissolution of the old confederacy, and also on how the new union treated the new outsider(s)—yet another exceptionally delicate set of issues (which Madison explicitly ducked in The Federalist No. 43). The states abandoning the old confederacy would be on firmest ground if the nonratifying complainant itself had ranked among the league’s most flagrant laggards. In the midst of the ratification process, however, no one could know which states, if any, might ultimately refuse to ratify.

This uncertainty was one of the reasons that the Preamble spoke generally of “the United States” rather than listing the thirteen states seriatim, as Wilson had done in his first draft.⁷⁴ Such a list would have unwisely counted thirteen ratifications by name before any had materialized—and in a section of the document whose special visibility might prove particularly embarrassing if one or more states failed to say yes.

THE PROMINENCE OF THE PREAMBLE also made it a perfect place to renounce the basic structure of the Articles. Although states would enter the Constitution as true sovereigns, they would not remain so after ratification. The formation of a “more perfect Union” would itself end each state’s sovereign status and would prohibit future unilateral secession, in plain contrast to the decidedly less-than-perfect union under the Articles. True, the Preamble did not expressly proclaim that its new, more perfect union would be “perpetual”—and for good reason: Why borrow a word from the Articles of Confederation that did not quite mean what it said in that document, a word that was being thrust aside by the very act of constitution itself? Thus, the Constitution signaled its decisive break with the Articles’ regime of state sovereignty and false federal perpetuity in other ways.

One notable Preamble word marking the metamorphosis was “Constitution.” Not a “league,” however firm; not a “confederacy” or a “confederation”; not a compact among “sovereign” states—all these high-profile and legally freighted words from the Articles were conspicuously absent from the Preamble and every other operative part of the Constitution. The new text proposed a fundamentally different legal framework. Henceforth America would have a written “Constitution” deriving from a continental people, unmistakably styled after earlier state prototypes, like the Massachusetts Constitution of 1780. As these state constitutions, exalted texts in confederate America, had exemplified state-based popular sovereignty under the Articles, so now a new United States Constitution—the new supreme law of the land—would shape a new continental nation whose sovereign would be a truly continental people. Lest there be any doubt, later parts of the document precisely defined the status of “this Constitution,” a self-referential phrase that appeared several more times—most importantly in Articles V and VI (the only places where the phrase popped up more than once) and in Article VII, the Preamble’s matching bookend.⁷⁵

Article VI specified how “this Constitution,” once ratified, would stack up against current and future state constitutions. For example, what should happen if the people of South Carolina, having adopted “this Constitution” in 1788, reconvened at some later time to amend their state constitution, and in that convention adopted an amendment purporting to repudiate the federal Constitution in whole or in part? In a subsequent lawsuit, which law would a state judge be obliged to follow? If the people of South Carolina were sovereign, the answer would plainly be the state constitution as amended. The sovereign people’s right to alter or abolish their government at any time would remain a core attribute of their sovereignty, and their judicial agents—state judges—would be bound to enforce their will and judgment even if their amendment might be alleged by other sovereigns to violate an earlier treaty under international law. Yet the Article VI supremacy clause explicitly compelled even state judges to disregard the attempted amendment—a rule plainly inconsistent with the post-ratification sovereignty of the people of each state: “This Constitution … shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”⁷⁶

Surrounding Article VI and reinforcing its plain meaning, Articles VII and V conspicuously contrasted the rules for constitutional ratification with the rules for subsequent constitutional amendment—a contrast that made it plain that the new Constitution spelled the end of state sovereignty for all states that might choose to join. As of mid-July 1788, ten states had ratified the Constitution, thereby guaranteeing that the document would go into effect in those states under Article VII. New Yorkers had yet to ratify, and Article VII made it clear that the people of that state were a distinct sovereign entity free to vote down the new Constitution and ignore it. Yet Article V put New Yorkers on clear notice: If they chose to ratify the Constitution in convention, they would lose their freedom to disregard subsequent constitutional proposals agreed to by conventions of three-fourths of the states, whose ratifications would suffice to make future amendments “valid to all Intents and Purposes, as Part of this Constitution” even in nonratifying states. Nowhere was the Constitution’s break with the Articles of Confederation and all other purely confederate regimes more dramatic. Simply put, Article VII recognized the sovereign right (or at least the sovereign power) of different states in a flawed confederacy to go their separate ways; but Articles V and VI extinguished the right and power of unilateral secession for each state populace that joined the Constitution’s new, more perfect union, thereby merging itself into the continental sovereignty of the American people.⁷⁷

Anti-Federalists across the continent got the message and sounded the alarm. In Massachusetts, Samuel Nasson pointed to the Preamble as proof that the Constitution would effect a “perfect consolidation of the whole Union” that would “destroy” the Bay State’s status as “a sovereign and independent” entity. The influential Federal Farmer warned that when a state populace “shall adopt the proposed constitution, it will be their last and supreme act” qua sovereign. New York’s Brutus complained that the Constitution would not be “a compact” among states but rather would create a “union of the people of the United States considered” as “one great body politic.” Pennsylvania Anti-Federalists put forth a similar reading of the Preamble. Meanwhile, Maryland’s Luther Martin advised his audience of the strongly nationalist logic of the Constitution’s treason clause, which made allegiance to the United States paramount over allegiance to a single state in the event of armed conflict between the two.⁷⁸

Patrick Henry, true to form, was the bluntest of all as he led the charge against the Constitution in Virginia. “The fate … of America may depend on this.… Have they made a proposal of a compact between the states? If they had, this would be a confederation. It is otherwise most clearly a consolidated government. The question turns, sir, on that poor little thing—the expression, We, the people, instead of the states, of America.” If “the states be not the agents of this compact, it must be one great, consolidated, national government, of the people of all the states.” This difference, Henry warned, would profoundly limit the rights of future Virginians to act on their own. “Suppose the people of Virginia should wish to alter their government; can a majority of them do it? No; because they are connected with other men, or, in other words, consolidated with other states.… This government is not a Virginian, but an American government.” Because the American Revolution of 1776—in which he had played no small part—had ultimately made Virginia free and independent, the proposed Constitution was “a resolution as radical as that which separated us from Great Britain.”⁷⁹

In response, the Federalists refined their critics’ terminology while confirming that the new union would indeed be indivisible. The Constitution, Federalists stressed, hardly annihilated the states or melted thirteen peoples into one mass for all purposes. State lines would continue to configure the politico-legal map, and state governments would continue to wield important powers. In fact, states would form the basic building blocks of the new government. State borders and state-law electoral qualifications would shape the House of Representatives; state legislatures would elect a Senate in which each state would have equal weight; state-chosen electors would ballot for president; a Senate sensitive to states’ rights would confirm federal judges; each state’s borders and republican form of government would be guaranteed; and states could help propose and ratify federal constitutional amendments. Thus the new Constitution was not wholly national but partly federal, argued the Constitution’s supporters, who cleverly called themselves “Federalists” rather than “Nationalists.”

But on the fateful question of whether states would continue to be truly sovereign, with rights of unilateral exit, the Federalists agreed that the Anti-Federalists had not exaggerated. The difference of opinion on this question was not over what the document meant, but over whether the impermissibility of future secession was reason to commend or condemn the proposed “more perfect Union.” Madison at Philadelphia stressed that one of the essential differences between a “league” and a “Constitution” was that the latter would prevent subunits from unilaterally bolting whenever they became dissatisfied.⁸⁰

Madison here appeared to build on Blackstone’s account of the indissoluble union of England and Scotland in 1707, a union that furnished a high-profile paradigm for what the Philadelphia framers were proposing in 1787. Draftsman Gouverneur Morris, who put the finishing stylistic touches on the Preamble, used language strongly resembling, and perhaps consciously borrowed from, the British union. The phrase “a more perfect Union,” blended language from the official 1707 enactment, which spoke of “rendring the union of the two kingdoms more intire and compleat,” with language from Queen Anne’s July 1, 1706, letter to the Scotch Parliament, which spoke of “an entire and perfect union.”⁸¹ This language from Queen Anne appeared verbatim in The Federalist No. 5, as Publius (here, John Jay—later America’s first chief justice) explained exactly what kind of new, more perfect union was now being proposed to Americans. A few essays later, Hamilton/Publius in The Federalist No. 11 spoke of the need for a “strict and indissoluble” union. More generally, the entire opening section of The Federalist urged Americans to emulate the British by permanently unifying their landmass for military and geostrategic reasons.

Federalists from north to south sang from the same hymnal. Pennsylvania’s Wilson contrasted traditional “confederacies” that historically “have all fallen to pieces” with the proposed Constitution, in which “the bonds of our union” would be “indissolubly strong.” North Carolina’s Governor Samuel Johnston declared that “the Constitution must be the supreme law of the land; otherwise, it would be in the power of any one state to counteract the other states, and withdraw itself from the Union.” Both Wilson and Johnston had emigrated from Scotland, and their visions of the proposed American union doubtless drew upon their intimate understanding of the British union that England and Scotland had achieved some four score years earlier. In Virginia, the distinguished legal scholar George Wythe forcefully explained what was at stake, blending language from the Declaration (which he had signed in 1776) and the Preamble. “To perpetuate the blessings of freedom, happiness, and independence,” Americans must form “a firm, indissoluble union of the states” and thereby avoid “the extreme danger of dissolving the Union.”⁸²

Even more striking than what the Constitution’s friends said is what they did not say. No leading Federalist ever publicly sought to win over states’ rightists by conceding that a state could unilaterally nullify or secede in the event it later became dissatisfied. The Federalists’ silence here was deafening, given how reassuring to states’ rightists such a response would have been in all the places where the Philadelphia proposal hung precariously in the balance. Responding to the fears voiced by Anti-Federalist “men of little faith,” Federalists stressed many specific protections, including bicameralism, separation of powers, enumerated powers, refinements in representation, the amendment process, and the states’ status as building blocks in the national government. But never did Federalists float the right of an individual state to secede or nullify. Never did they say, “Give the new plan a try, and if you don’t like it, your state may always leave.”

Alongside what various people said and did not say in constitutional debates, we must attend to what the American people themselves did and did not do in the act of constitution itself. No state convention, in its ratification instrument, purported to reserve the right of its state populace to unilateral secession. Notably, Virginia’s convention spoke of the right of the people of the United States, not the people of Virginia, to reassume power through future acts of popular sovereignty. Nor did any state convention impose any condition on its act of ratification.⁸³

The secession question arose most dramatically in the New York ratification convention, where Anti-Federalists held a strong majority when discussion began. At one point, Federalist Alexander Hamilton despairingly described “our chance of success here” as “infinitely slender.” After extensive debate, and upon receiving word that New Hampshire and Virginia had recently ratified the Constitution as the decisive ninth and tenth states—thus ensuring that the Constitution would go into effect in these ten states—Anti-Federalist leaders proposed a compromise under which the convention would ratify the Constitution “upon condition” that the new Congress make way for certain constitutional amendments. With the ultimate prospects for New York ratification still in grave doubt, the offer tantalized Hamilton and his allies, but in the end they refused to take the bait. Instead, the Federalists insisted on replacing the words “upon condition” with language expressing the convention’s “full confidence” that Congress would take up the suggested amendments—a factual expectation rather than a binding legal condition. The convention then beat back a proposal from Anti-Federalist John Lansing that “there should be reserved to the state of New York a right to withdraw herself from the Union after a certain number of years, unless the amendments proposed” were taken up.⁸⁴ In this sharply focused debate, no one supposed that the Constitution already contained a general right of state secession. Had such a right been thought to exist, Lansing’s proposal would have limited it (to “a certain number of years” and a small set of triggers) and thus states’ rightists should have opposed Lansing, while continentalists should have favored him.

In actual fact, the exact opposite occurred. At the risk of alienating swing voters and losing on the ultimate ratification vote, New York’s Federalists rose up to oppose the Lansing compromise. In doing so, they made clear to all observers—both in New York itself and in the many other places across the continent where men were following the New York contest with interest—that the Constitution did not permit unilateral state secession. In a letter to Hamilton, Madison had emphasized that “the Constitution requires an adoption in toto, and for ever. It has been so adopted by the other States” (including Madison’s own Virginia). Hamilton read the letter aloud to the Convention and then added his own words. The “terms of the constitution import a perpetual compact between the different states.… The [Article VI] oath to be taken stands in the way” of any subsequent right of unilateral secession. According to the contemporaneous account published in New York’s Daily Advertiser, both Hamilton and his fellow delegate John Jay insisted that “a reservation of a right to withdraw … was inconsistent with the Constitution, and was no ratification.”⁸⁵

THUS, IN THE GREAT DEBATE of the 1860s, both Jefferson Davis and Abraham Lincoln got some things right and some things wrong, but Lincoln was right when it counted. Contrary to what Lincoln said, it is doubtful that a new, indivisible nation—as opposed to thirteen nation-states in a classic confederacy—sprang into existence in July 1776, four score and seven years before the battle of Gettysburg. In fairness to Lincoln, perhaps we should say that vis-à-vis the rest of the world, a new (confederate) nation was born in 1776. But the United States did not become an indivisible nation prohibiting unilateral state secession—the crux of the Gettysburg contest—until 1788. Lincoln also stumbled in claiming that none of the thirteen original states had ever been truly sovereign. If the issue were somehow unclear from 1776 to 1788, surely “sovereign” is the right word to describe North Carolina and Rhode Island in April 1789. The burning question in the 1860s, however, was not whether states had ever been sovereign in a strong sense, but whether they still were. Texas had undeniably been a sovereign Lone Star republic in the years before statehood, but did she retain that status after joining the union? On that question, Lincoln properly insisted that the Constitution’s more perfect union did not permit unilateral secession. Even though Jefferson Davis rightly read his namesake’s Declaration, he wrongly read his country’s Constitution. The fact that a new union was lawfully formed in the 1780s by secession from the old confederacy did not mean that a new confederacy could be lawfully formed in the 1860s by secession from the old union.⁸⁶

Chief Justice John Marshall had lived through the Revolution and the Founding, and thus was less likely than later interpreters to conflate the two events, either by arguing, as would Lincoln, that the Revolution had already made America one indivisible nation or by claiming, as would Davis, that the Founding had carried forward the confederate essence of the failed Articles. Writing in 1824, exactly midway between the fall of the Articles of Confederation and the rise of a second self-described American Confederacy, Marshall summarized the issue nicely. “Reference has been made to the political situation of [the] States, anterior to [the Constitution’s] formation. It has been said, that they were sovereign, were completely independent, and were connected with each other only by a league. This is true. But, when these allied sovereigns converted their league into a government, when they converted their Congress of Ambassadors, deputed to deliberate on their common concerns, and to recommend measures of general utility, into a Legislature, empowered to enact laws on the most interesting subjects, the whole character in which the States appear, underwent a change.”⁸⁷

“Justice, … Tranquility, … defence, … Welfare, … Liberty”

It remains to ask why. Why did Anti-Federalists fight so hard to keep a confederacy, and voice such fear of the new, more perfect union? Why, on the other hand, did the Federalists insist on so radical a change of fundamental legal structure?

Anti-Federalists in this debate stood as traditionalists steeped in the American custom of provincial self-government. These men also drew upon world history, which furnished no model of a genuinely democratic regime stretching across a continental expanse. In response, Federalist reformers put forth a novel theory of extended republics and unfolded a compelling set of insights about geostrategy and liberty, insights that explained what the Anti-Federalist reading of world history had overlooked.

The Anti-Federalist commitment to local self-government had deep roots in the American experience. Pilgrims had compacted among themselves while still on the Mayflower, and Virginians were already electing delegates to a House of Burgesses in the 1620s. By 1640, eight colonies had assemblies in place.⁸⁸ No similar assemblies ever met at the continental level in colonial America, and the elected body that did claim authority to legislate continentally—the British Parliament—was an assembly that no colonist had ever voted for or in.⁸⁹ Not that colonists really wanted direct representation in Parliament.⁹⁰ A small number of Americans amid a sea of British legislators would likely be consistently outvoted. Moreover, these few colonial representatives would not personally know the vast majority of the voters whom they would allegedly be representing. Even if they started off with sound instincts, they might easily lose a sense of connection with their constituents when living in a grand imperial city an ocean away, rubbing elbows with English aristocrats and haughty diplomats from undemocratic lands. If they mutated into Londoners, such representatives might ultimately become part of the problem rather than the solution. Colonial legislators, by contrast, knew their voters by name, met only hours away, and regularly returned to mingle with their constituents and to live under the laws they had passed.

When continental congresses began to meet in the mid-1770s, colonial assemblies or their Revolutionary equivalents generally picked congressmen and retained the power to instruct or recall them at will, a pattern that continued after independence. Much of the democratic action in confederate America took place within each state, usually featuring an annual election to the state legislature as the main event. In Connecticut and Rhode Island, patriots simply carried on under their old colonial charters—which had enabled locals to select all government officials without English intervention—after cleansing these documents of all reference to the Crown. These colonial legislatures thus became state legislatures with no break in continuity. In other states, new constitutions were needed to fill the craters that opened up when independence destroyed the authority of royal and proprietary appointees—typically governors, judges, and executive councilors who often doubled as upper-house legislators. Most states preserved the essence of their colonial assemblies—sometimes renaming them, sometimes broadening the electorates that picked them, often expanding their size, but in general featuring strong institutional continuity between the old colonial assemblies and the new state legislatures.⁹¹ Colonial laws generally remained in force in the states unless and until superseded.

Thus, even as it cast out the king and underwent more change than did Connecticut or Rhode Island, a state such as Virginia carried forward many of her colonial laws and institutions. But for Virginia to indissolubly yoke herself to these Northern colonies and others, in a new continental nation where Virginians would be vastly outnumbered by non-Virginians (as indeed each state would be outnumbered by the rest), and where a newfangled continental legislature could legislate coercively—that was quite a different thing.⁹² Virginia and New England, after all, had different climates and cultures. No democracy in world history had ever spanned so vast a range encompassing such diverse weather zones, dominant sects, labor systems, and local temperaments. The widely admired French writer Montesquieu was commonly read as suggesting it could not be done. If an imperial Parliament with formal representation of the colonists would not have worked—because of geographic distance between representatives and represented, and deep cleavages of interest and circumstance between British voters and American voters—how could an analogous continental legislature work in America? How were the thousand miles and culture gap separating New Hampshire from Georgia decisively different than the three thousand miles and culture gap separating both from Britain?

The confederation solution of the early 1780s was precisely not to create any unprecedented continental parliament, but rather to rely on good old local legislatures, which would send ambassadorial delegations to an inter-sovereign Congress. In 1787, however, Washington, Madison, Wilson, and company were audaciously proposing to raise up an entirely new continental government with its own bicameral legislature (whose lower branch would be chosen directly by ordinary voters), independent executive, and life-tenured judiciary. In short, America was now being offered something akin to the Massachusetts Constitution of 1780—on a continental scale.⁹³

Traditionalist jaws dropped in disbelief. “The Scheme is itself totally novel. There is no parallel to it to be found,” worried states’ rightist John Lansing at Philadelphia. Luther Martin agreed, excoriating the general plan as “without example and without precedent.” Neither man signed the final Philadelphia proposal, and each worked furiously to defeat its ratification in his home state. Their reactions and those of countless other Anti-Federalists confirmed that Americans in 1776 had not somehow abandoned the primacy of the states in the blink of an eye. Any plan to form an indivisible continental nation and thereby relocate ultimate authority away from individual states with century-deep roots needed to win the consent of the governed in a well-focused continental conversation. No extended conversation about indivisible nationhood had occurred in 1776, but the Federalists were inviting such a dialogue in 1787. To win this great debate, Federalists first and foremost had to answer the traditionalist critique articulated by men like Lansing, Martin, and the Anti-Federalist essayist “Centinel,” who urged skepticism of all “innovation in government.”⁹⁴

In the closing sentences of The Federalist No. 14, Madison/Publius did not fight the innovator label, but instead wore it proudly:

My fellow-citizens, … Hearken not to the voice which petulantly tells you that the form of government recommended for your adoption is a novelty in the political world; that it has never yet had a place in the theories of the wildest projectors; that it rashly attempts what it is impossible to accomplish.… Why is the experiment of an extended republic to be rejected, merely because it may comprise what is new? … Numerous innovations [have already been] displayed on the American theatre, in favor of private rights and public happiness. [America’s leaders] accomplished a revolution which has no parallel in the annals of human society. They reared the fabrics of governments which have no model on the face of the globe.… If they erred most in the structure of the Union, … this is the work which has been new modelled by the act of your [Philadelphia] convention, and it is that act on which you are now to deliberate and to decide.

With his last words, Madison/Publius looped back to Hamilton/Publius’s first sentence in The Federalist No. 1 (“…  you are called upon to deliberate …”), thus rhetorically closing the circle of The Federalist’s extended opening argument. In this opening section, Publius aimed to explain to skeptics why an altogether novel continental constitution was urgently required.

MODERN AMERICANS OF ALL STRIPES—lawyers, historians, political scientists, and general readers—have missed the central argument of these early Federalist essays. The Federalist No. 10 is taught everywhere, while the rest of the Publius’s early exposition goes unassigned and unappreciated. Bristling with insights, No. 10 indeed has something for everyone today—an explicit reference to property rights and class conflict, a celebration of demographic and religious diversity, a sophisticated account of interest groups and electoral dynamics, and a prophetic sketch of the federal government’s eventual role in protecting minority rights. But however interesting No. 10 may be to modern readers, scholars have shown that this essay and its ideas had remarkably little impact on Madison’s contemporaries.⁹⁵

On reflection, it is not hard to see why. Madison speculated that an elected continental legislature, the likes of which had never before been seen in world history, would in theory be more likely to protect the liberties of its own citizens—especially minorities—than the colonial and state legislatures that had been in place for over a century. In hindsight, modern readers may find that Madison was right, and brilliantly so, but in 1787 it was a hard idea to sell. Madison hypothesized that large congressional districts would yield better representatives with wider reputations and sounder judgment than the folk of modest stature more likely to prevail in small electoral districts. Traditionalist critics could easily reverse Madison’s normative spin: The new government’s representatives would be too far removed, both geographically and socially, from the concerns of ordinary farmers, artisans, and shopkeepers.

If Madison’s argument had persuaded large numbers of his fellow Americans, they should have supported reforms at the state level to shrink the number of state legislators, increase the size of state legislative districts, and eliminate the right of constituents to instruct state representatives. Additionally, large states like Virginia and North Carolina should have sought to grow even larger by retaining control over interior sections rather than allowing them to break off to form new states like Kentucky and Tennessee. Also, the Bill of Rights proposed by the First Congress should have aimed to protect minority rights against states in light of Madison’s concerns—expressed on the floor of the House as well as in No. 10—that these were the governments most likely to succumb to the tyranny of the majority.⁹⁶ At least in the near term, history did not move in Madison’s direction on any of these issues.

The very fact that Madison’s novel ideas appeared in the tenth essay should tip us off. These reflections came too late in Publius’s overall argument to constitute the primary reasons for a dramatic restructuring of America. The points most likely to persuade skeptics and fence-sitters needed to, and did, come earlier, in The Federalist Nos. 2 through 8, with further reinforcement from The Federalist essays immediately following No. 10. In 1787–88, The Federalist Nos. 1–6 and 8–9 were reprinted more often than any of Publius’s other essays.⁹⁷

Madison’s was fundamentally an internal argument about democracy and demography. In essence, he asked readers to consider whether, if one were trying to make self-government work on some island nation removed from the rest of the world, it would be better to have a low-population and relatively homogeneous island (the orthodox view) or a high-population and modestly heterogeneous island (Madison’s theory). But the bulk of early Federalist essays focused less on internal arguments about democracy than external arguments about defense, less on demography within a republic than on geography at its borders. The central argument for a dramatically different and more perfect union was not that it would protect Virginians from the Virginia legislature, but rather that it would protect Virginia from foreign nations and sister states, and in turn protect these sisters from Virginia. The question was not so much whether to pick a big or a small island nation, but how to create an island nation in the first place—a nation where foreign powers would be far removed and where internal borders would be demilitarized.

Individual and collective liberty, common defense and domestic tranquility, justice between men and between regions, economic prosperity and general welfare—all these Preamble goals, Publius argued in his opening essays, required America to merge thirteen separate states into one indivisible island nation. By creating an “insular” condition in America, the proposed Constitution would guarantee Americans the rights of Englishmen, and more, by replicating—indeed, surpassing—the geostrategic niche of Englishmen.

As Publius saw the world, most of continental Europe groaned in chains under absolutist tyrants and feudal overlords. Yet Britain was relatively free because of its “insular situation, and a powerful marine, guarding it in a great measure against the possibility of foreign invasion.” So long as Britannia maintained a strong navy and ruled the waves—remember the Armada!—she would not need a large domestic standing army. A navy was a relatively defensive instrument that could not easily be turned upon Englishmen to impose domestic tyranny. Blackstone’s Commentaries had in fact described the navy as Britain’s “greatest defence and ornament: … its ancient and natural strength; the floating bulwark of the island; an army, from which, however strong and powerful, no danger can ever be apprehended to liberty.”⁹⁸

But large standing armies were another story—the story of tyranny. Regimes on the European continent, Publius argued, required such armies to defend their land borders against invasion. Because “most other BORDERING nations [are] always … either involved in disputes and war, or live in the constant apprehension of them,” a single ambitious regime bent on military adventurism could force all nearby nations to build up their armies to deter and, if necessary, repel invasion. Unlike navies, armies could be and were easily used not just to thwart invaders, but also to crush individual freedom and collective self-government. With the threat of military crackdowns stifling political freedom and a brooding military presence overshadowing the entire society, “the military state becomes elevated above the civil” and liberty suffers.⁹⁹ In short, land borders begot arms races that begot large standing armies that begot domestic tyranny.

Americans, Publius argued, must avoid continental Europe’s fate by permanently unifying their New World landmass, as Britons had earlier permanently unified their island. When England, Wales, and Scotland were separate kingdoms, military competition between them invited invasion and foreign intrigue, triggering a heightened domestic militarization that threatened liberty. The indivisible union of England and Scotland at the outset of the eighteenth century gave island residents more room to breathe free.¹⁰⁰

Publius thus urged that 1787 America emulate 1707 Britain by forming its own more perfect, “strict and indissoluble” union.¹⁰¹ What were the alternatives? The existing Articles of Confederation were unworkable yet virtually impossible to amend, given the high bar of state unanimity. With a little luck and a lot of help from the French navy, America had won her most recent war, but her prospects for the next big one, whenever and however it might arise, appeared uncertain at best. Experience had proved that the individual states could not be trusted to provide their fair share of American soldiers and the money to pay them, and could not even be trusted to honor America’s treaties with foreign powers. Without dramatic revision, the confederation could not fulfill its most basic purpose, which the Articles described as securing the several states’ “common defense, … Liberties, … and general welfare” against “all force offered to, or attacks made upon them, or any of them” by hostile powers. To perpetuate the Articles’ feeble regime would invite increased European military adventurism in North America and would leave Americans ill equipped to resist.¹⁰²

If the Constitution were not ratified, Publius warned, some sort of “dismemberment of the union” would likely follow. Suppose Americans were to scrap the confederation in favor of thirteen separate land-bordering nations, each free to arm itself without limit. Each nation-state might well raise an army, ostensibly to protect itself against Indians or Europeans, but also perhaps to awe its neighbors. America would then recreate continental Europe—borders, armies, dictators, chains, and all. To opt instead for a system of three or four regional confederacies would not be much better, especially in light of the tremendous conflict that would likely arise among them concerning control of Western territory. “Territorial disputes have at all times been found one of the most fertile sources of hostility among nations.… This cause would exist among us in full force. We have a vast tract of unsettled territory.” Already, some of the states had come close to blows in land disputes.¹⁰³

If, however, an unum could be forged from pluribus, America would resemble Britain. The Atlantic Ocean would become a pacific ocean in all but name—an English Channel times fifty, a vast moat that would protect America against replication of, and subjugation by, the militarism of the European continental powers. Under a new national Constitution, America could rely primarily on a navy. Along with other federal organs, the navy could be directly financed by new federal imposts, duties, and other taxes imposed on individuals from every region—individuals who would be directly represented in the Congress that would set general tax rates and approve the overall defense budget. This new and readily enforceable revenue system would cure the collective-action problems that had doomed the Articles’ requisition regime, which lacked strong mechanisms to sanction shirking states. (State self-interest alone had failed to guarantee adequate financial support; continental defense was a classic shared good whose benefits radiated beyond the contributing states.) To be sure, the new nation might require a small army to fortify the South against Spain, the West against Indians, and the North against Canada. Yet none of these land-bordering regimes could overawe the United (with a capital U) States, or provide any future president with a pretext to create a dangerously large standing army.¹⁰⁴

Unless, of course, one of the land-bordering regimes received strong support from the Old Powers in Europe. Thus, Publius argued, Americans must discourage European monarchs from strengthening their footholds in the New World. And constitutionally “United States” would be more likely to blunt European adventurism, disabling the Old Powers from playing off state against state in classic divide-and-conquer fashion. Ominously, under the Articles, individual states had already failed to honor certain parts of America’s 1783 peace treaty with Britain, which in turn had yet to live up to its promise to relinquish its forts in the American Northwest.¹⁰⁵ (The shirking states did not bear the full cost of their defaults, which put sister states at risk by giving Britain a pretext for further North American interventions.)

Also, separate states acting individually or in multiple confederacies would find it harder to pry trade concessions from Europe than would a continental nation acting as a unit, with extra bargaining power and the enforcement muscle to back up any threatened retaliatory tariff or boycott. Without a strong union, a single state might undercut its neighbors’ tariffs, import the lion’s share of foreign goods, and then wink as smugglers sneaked the goods into adjoining states, overland or by boat. Pro-tariff states would find it hard to stop such intracontinental smuggling without hordes of expensive and liberty-threatening internal border guards.¹⁰⁶

The flip side of a common front against Europe would be increased intercourse between Americans themselves in a demilitarized interstate free-trade zone. Separate New World nation-states or confederacies might squabble over unfair intra-American trading practices and retaliatory tariffs, and Publius warned that disputes such as these ranked high among the classic causes of war. By contrast, free and fair trade across state lines under a national Constitution would redirect citizens’ energies into commercial and social intercourse that would strengthen ties among Americans from different regions. In The Federalist No. 2, Jay/Publius described America as “one connected … country” in which a “succession of navigable waters forms a kind of chain round its borders, as if to bind it together; while the most noble rivers in the world, running at convenient distances, present [Americans] with highways for the easy communication of friendly aids, and the mutual transportation and exchange of their various commodities.” Jay/Publius gilded this ode to increased interstate social and commercial interaction with fraternal imagery borrowed from Shakespeare’s account of Agincourt, scene of England’s great military triumph against a continental power: America’s “band of brethren, united to each other by the strongest ties, should never be split into a number of unsocial, jealous, and alien sovereignties.”¹⁰⁷

Free intra-American trade would also encourage a domestic shipping industry and make America a “nursery of seamen,” argued Publius. In times of war or international crisis, America’s commercial fleet could be converted into an American navy through letters of marque and reprisal—governmental commissions authorizing private ships to engage and raid the enemy. The synergy would also work the other way, as an incipient navy would protect America’s commercial navigation from European and piratical attack.¹⁰⁸

Finally, expanding the geographic sphere of government by bringing thirteen states under a single continental canopy would economize on the total amount of money needed for military defense and other core functions. A larger landmass would generate a lower overall perimeter-to-area ratio, and a strong union would reduce the need to spend money to guard intracontinental borders between states.¹⁰⁹ Most important of all, the very strength of a united America would eliminate the need for a large standing army in peacetime. The result would be enormous peace dividends in both dollars and democracy.

This, in a nutshell, was Publius’s first and most elaborate response to the traditionalist critique. Though Jay and Hamilton took the lead in unfolding it in the early Federalist essays, Madison himself had earlier outlined the argument at Philadelphia,¹¹⁰ and as Publius he nicely distilled it in the opening words of The Federalist No. 14 and further embellished it in The Federalist No. 41. Hamilton, too, returned to these themes when summarizing the Constitution’s virtues in his final essay, The Federalist No. 85. Among the six chief “securities to republican government, to liberty and to property, to be derived from the adoption of the [Philadelphia] plan,” two were as follows: “the diminution of the opportunities to foreign intrigue, which the dissolution of the Confederacy would invite and facilitate” and “the prevention of extensive military establishments, which could not fail to grow out of wars between the States in a disunited situation.”

OTHER LEADING FEDERALISTS shared Publius’s geostrategic vision. Wilson harmonized with it in his opening and concluding words in the Pennsylvania debates; Oliver Ellsworth (another Philadelphia delegate, later to become America’s chief justice) reprised it at the outset of his remarks in Connecticut’s convention; and Virginia’s Governor Edmund Randolph made it a central theme of several of his speeches urging ratification.¹¹¹ Randolph’s support was particularly important, coming as it did from the governor of America’s oldest, most expansive, and most populous state, a state whose geographic centrality made it practically indispensable.¹¹² In September 1787, delegate Randolph had declined to sign the Constitution when given the chance at Philadelphia. But after two of Virginia’s land-bordering neighbors, Pennsylvania and Maryland, voted to join the new union, Randolph repeatedly emphasized that fact in explaining why he now deemed Virginia’s quick ratification essential. In language that would resound in the remarks of other Virginia Federalists,¹¹³ Randolph hammered home the analogy between the British Union of 1707 and the new American union being proposed. Virginia, he insisted, would face unacceptable military and commercial risks should she stay out of the new union while her border-states were in.

Publius’s geostrategic argument also made good sense to George Washington, who as a surveyor and general instinctively grasped geography and military strategy better than abstract philosophy. In 1796, President Washington would devote major portions of his Farewell Address to the implications of Publian geostrategy;¹¹⁴ and later presidents would push Publius’s geostrategic vision even further with the Louisiana Purchase, the Monroe Doctrine, and Manifest Destiny.

Most important in 1787–88, the geostrategic argument gave moderates and traditionalists an account of the newfangled union that did not require them to disown their state legislatures. The argument’s logic enabled ordinary Americans to ratify not because they distrusted their own democratic state lawmakers—men of middling rank like themselves, men who lived nearby and seemed to understand their daily problems—but rather because they needed to rein in other states’ legislatures. The less specific the Federalists were about which particular states were the worst shirkers under the Confederation, the better. Each state could tell itself that its sisters were the chief offenders, and everyone could blame tiny Rhode Island most of all.

Moderate Americans could also appreciate the need to consider novel continental arrangements to guard against foreign invasion. In an effort to shield America’s northwest flank, the Continental Congress of 1774 had crafted an open appeal to “Friends and fellow-subjects” in the largely French-speaking and Catholic British province of Quebec, which American colonists feared as a possible staging ground for King George’s troops. The 1774 letter urged the Canadian Quebecois to “join us in our righteous contest, [and] make common cause with us.”¹¹⁵ Later, the Articles of Confederation provided for Canada’s automatic admission into the confederation upon her proper application. (All other prospective candidates for admission would be screened on a case-by-case basis.) Large legal and cultural differences separated the Quebecois from their southern neighbors. The two sides had, after all, fought against each other in the previous decade’s French and Indian War. Quebec, as a civil-law province, failed to honor many of the traditional rights of Englishmen, such as trial by jury. Yet during the Revolution, American patriots rushed to make common cause with neighbors who lacked the common law. Geography trumped tradition.

The very idea of a possible Canadian-American alliance conjured up images of Switzerland, a classic confederation of local cantons. The 1774 open appeal to Quebec explicitly pointed to the Swiss as proof that “difference of religion” between the Canadians and the Americans posed no insuperable obstacle to a firm alliance. “The Swiss Cantons … [are] composed of Roman Catholic and Protestant States, living in the utmost concord and peace with one another, and thereby enabled … to defy and defeat every tyrant that has invaded them.”¹¹⁶ Thirteen years later, leading Anti-Federalists repeatedly invoked the Swiss model. If a purely confederated system could keep the peace among the Swiss and also keep them free from outside invasion, why wouldn’t the same be true of America?¹¹⁷

The Federalists’ short answer was that America was no Switzerland. Geographically, commercially, and strategically, America was far more like Britain. Landlocked, the Swiss had no coastline to defend against a foreign fleet or to exploit for commercial advantage, and thus no need for a navy or for a centralized system to avoid local shirking to fund naval operations. Mountains and rugged terrain guarded individual Swiss cantons not only from foreigners, but also to a considerable extent from one another. Switzerland was not interlaced by large navigable rivers and broad highways. The cantons lacked a common coin and common troops. The Swiss had no vast unsettled territory as a possible ground of contention. In an extended analysis in The Federalist No. 19 (coauthored by Hamilton and Madison), Publius argued that the Swiss were held together by “the peculiarity of their topograph[y]” and many other features that distinguished them from Americans. In Connecticut, Ellsworth added that the Swiss “have nothing to tempt an invasion. Till lately, they had neither commerce nor manufactures. They were merely a set of herdsmen.” More ominously, Publius concluded his analysis of the Swiss by observing that relations among the cantons had not always been as harmonious as the 1774 letter to Quebec had suggested. Religious disputes had in fact “kindled violent and bloody contests” that had virtually “severed the league,” with Protestant cantons and Catholic cantons having then proceeded to form “opposite alliances with foreign powers.”¹¹⁸

For the Federalists, Switzerland was a cautionary tale of the dangers and limits of purely confederated systems. Allied regimes did not always stay allied. If the precise facts about Switzerland and Old World diplomacy were perhaps contestable—leading Anti-Federalists vigorously challenged the Federalists’ account—the New World offered more immediate illustrations. According to the colonists’ 1774 overture to Quebec, the previous decade’s hostilities between Quebec and her southern neighbors should not stand in the way of a new alliance between former foes. Yesterday’s “brave enemies” might become today’s “hearty friends.”¹¹⁹ If so, wasn’t it also possible that today’s hearty friends might become tomorrow’s brave enemies? If Americans from different regions were willing to forget that they fought against the Quebecois in the French and Indian War, might they someday also forget that they fought alongside each other—a “band of brethren,” as Jay would have it—in the Revolutionary War? Hence the need to transform an imperfectly perpetual league into a more perfect union, an indivisible nation designed to bind Americans of different regions together and thus prevent the parts from ever warring against one another or against the whole.

This general geostrategic vision informed much of the antebellum Constitution’s overall structure and many of its specific words, such as its ban on standing appropriations for armies (but not navies) in Article I, section 8; its rules about state troops in Article I, section 10; its elaborate protections of the militia in Article I and the Second Amendment; its skepticism of “soldiers” (but not “sailors”) in the Third Amendment; its particular rules for a muscular civilian president in Article II; its contemplation of westward expansion and the admission of new states in Article IV; its Article IV guarantees of each state’s boundaries against invasion and each state’s democracy against military despotism; and its pointed Article VI language describing the Constitution as the law of “the Land.”

THE LAND, INDEED, LOOMED LARGE for Lincoln in the 1860s. Early in his First Inaugural, he put particular emphasis on the Preamble’s purpose, “to form a more perfect Union.” Moments later, in language that he repeated verbatim in his Second Annual Message to Congress, he explained that “physically speaking, we cannot separate. We cannot remove our respective sections from each other, nor build an impassable wall between them. A husband and wife may be divorced, and go out of the presence, and beyond the reach of each other; but the different parts of our country cannot do this. They cannot but remain face to face; and intercourse, either amicable or hostile, must continue between them. Is it possible then to make that intercourse more advantageous, or more satisfactory, after separation than before? Can aliens make treaties easier than friends can make laws? Can treaties be more faithfully enforced between aliens, than laws can among friends?” If these words called to mind parts of Jay’s Federalist No. 2, so did the following section of Lincoln’s Second Message:

The great interior region [of America] has no sea-coast, touches no ocean anywhere. As part of one nation, its people now find, and may forever find, their way to Europe by New York, to South America and Africa by New Orleans, and to Asia by San Francisco. But separate our common country into two nations, as designed by the present rebellion, and every man of this great interior region is thereby cut off from some one or more of these outlets, not, perhaps, by a physical barrier, but by embarrassing and onerous trade regulations.

… These outlets, east, west, and south, are indispensable to the well-being of the people inhabiting, and to inhabit, this vast interior region. [These outlets] of right, belong to [the American] people, and to their successors forever. True to themselves, they will not ask where a line of separation shall be, but will vow, rather, that there shall be no such line.

Like the Founders, Lincoln worried about militarily defensible borders and the need to prevent the emergence of two powerful and hostile regimes, side by side, generating an arms race or a trade war that might lead to the permanent militarization or impoverishment of the continent. From the Founding to the outbreak of the Civil War, the United States flourished as a remarkable free-trade and demilitarized zone.^a As Lincoln saw it, those Americans in any given state who disliked Union policies were free to leave, but they had no right to take the land with them, or to impose their secessionist preferences on their pro-Union neighbors both within their states and beyond. All Americans had invested in Fort Sumter and had a stake in the Mississippi River, and no single state or region could unilaterally take its land or waters and go home.

America as a whole, however, might decide to divide. Neither Lincoln nor his Federalist predecessors meant to prevent national reconsideration when they insisted that the more perfect union must be “indivisible” or “indissoluble.” Lincoln elsewhere hinted at several ways that a national alteration of borders might properly occur, via constitutional amendments (perhaps informed by nonbinding referenda or national conventions), federal statutes and treaties, and regular presidential elections.¹²⁰ The right of the entire American people to rethink national boundaries was part of the continental people’s inalienable right to alter or abolish; and Lincoln, as a proud pupil of the Preamble, emphatically affirmed government of, by, and for the people.

Thus what we the American people did in 1788, we were free to undo in 1861, and are free to undo today, for that matter. But the Preamble’s words and underlying vision gave earlier generations—and continue to give Americans in the twenty-first century—strong reasons to embrace union as liberty’s best hope.

a  Still later generations of Americans have continued to benefit from the peace- and trade-dividends created by the Constitution’s more perfect union. Though many nations suffered massive devastation in their own backyards during World War II, America’s wide oceanic moats kept the forty-eight states safe. Only Pearl Harbor and certain parts of Alaska came under serious attack. Before the tragedy of September 11, 2001, the last time foreign enemies wreaked havoc in the heartland was during the War of 1812. Not until after World War II would Americans feel obliged to field a large standing army in peacetime, and even then most American soldiers would be stationed overseas.