| Adams, FAC | Willi Paul Adams, The First American Constitutions: Republican Ideology and the Making of the State Constitutions in the Revolutionary Era (Rita Kimber and Robert Kimber, trans., expanded ed. 2001) |
| AHR | The American Historical Review |
| Annals† | Joseph Gales, Sr., The Debates and Proceedings in the Congress of the United States … (1834–), 24 vols. (“Annals of the Congress of the United States”) |
| APSR | American Political Science Review |
| Blackstone’s Comm. | William Blackstone, Commentaries on the Laws of England, 4 vols. Note: the star (*) pagination refers not to Blackstone’s 1765 first edition, but to a revised (and differently paginated) edition from the 1780s that soon became the standard for later printings. |
| CG† | Congressional Globe |
| Cong. Rec.† | Congressional Record |
| DHRC | Merrill Jensen, John P. Kaminski, and Gaspare J. Saladino, eds., The Documentary History of the Ratification of the Constitution (1976–), 20 vols. |
| Elliot’s Debates † | Jonathan Elliot, ed., The Debates in the Several State Conventions on the Adoption of the Federal Constitution.… (1888), 5 vols. |
| Farrand’s Records† | Max Farrand, ed., The Records of the Federal Convention of 1787 (rev. ed. 1966), 4 vols. |
| Ford, Essays | Paul Leicester Ford, ed., Essays on the Constitution of the United States (1892) |
| Ford, Pamphlets | Paul Leicester Ford, ed., Pamphlets on the Constitution of the United States (1888) |
| Hamilton, Papers | Harold C. Syrett, ed., The Papers of Alexander Hamilton (1961–), 27 vols. |
| HWS | Elizabeth Cady Stanton, Susan B. Anthony, et al., eds., History of Woman Suffrage (1881– reprint, 1985), 6 vols. |
| JCC† | Journals of the Continental Congress |
| Jefferson, Papers | Julian P. Boyd, ed., The Papers of Thomas Jefferson (1950), 30 vols. |
| Jefferson, Writings (Ford) | Paul Leicester Ford, ed., The Writings of Thomas Jefferson (1895), 10 vols. |
| LJ | Law Journal |
| LR | Law Review |
| Maclay’s Journal† | Edgar S. Maclay, ed., Journal of William Maclay (1890) |
| Madison, Papers | William T. Hutchinson, William M. E. Rachal, et al., eds., The Papers of James Madison (1962), 17 vols. |
| Madison, Writings (Hunt) | Gaillard Hunt, ed., The Writings of James Madison (1910), 9 vols. |
| OED | Oxford English Dictionary |
| Stat.† | Statutes at Large |
| Storing’s Anti-Fed. | Herbert J. Storing, ed., The Complete Anti-Federalist (1981), 7 vols. |
| Story, Commentaries | Joseph Story, ed., Commentaries on the Constitution of the United States (1833; rev. ed. 1991), 3 vols. |
| Washington, Writings | John C. Fitzpatrick, ed., The Writings of George Washington, from the Original Manuscript Sources, 1745–1799 (1939), 39 vols. |
| Wilson, Works | Robert Green McCloskey, ed., The Works of James Wilson (1967), 2 vols. |
| WMQ | The William and Mary Quarterly, 3d series (1944–) |
1. In Connecticut, all town inhabitants were eligible to vote for ratification-convention delegates, whereas only town freemen—a narrower category de jure, and a much narrower category de facto—voted for ordinary state legislators. Charles J. Hoadly et al., eds., Public Records of the State of Connecticut (1894–), 6:355. Connecticut’s state historian, Christopher Collier, estimates that there were almost twice as many inhabitants as freemen in the late 1780s. Conversation with ARA, August 2002; see also Christopher Collier, “A Constitutional History of the Connecticut General Assembly: A Preliminary Sketch” (paper prepared for the Connecticut Humanities Council Institute, Hartford, Conn., June 1988), 10–12. In North Carolina, all taxpayers could vote for the state house of commons, but only those with fifty-acre freeholds could vote for the state senate. Adams, FAC, 324. The ratification-convention elections tracked the more inclusive house rules. Walter Clark, ed., The State Records of North Carolina (1902), 20:196–97, 370–72, 514–16, 526–27; Charles Beard, An Economic Interpretation of the Constitution (1913; reprint, 1986), 240–41. New York also had different suffrage qualifications for its two state houses. Adams, FAC, 318. All these rules were waived in the 1788 election for ratification-convention delegates. The New-York Journal and Daily Patriotic Register, April 30, 1788, 3; John P. Kaminski, “New York: The Reluctant Pillar,” in Stephen L. Schechter, ed., The Reluctant Pillar: New York and the Adoption of the Federal Constitution (1985), 75.
2. New Hampshire, Massachusetts, New York, New Jersey, Maryland, North Carolina, and South Carolina each had higher property qualifications for membership in the upper house than the lower house. Adams, FAC, 315–27. All seven declined to impose upper-house requirements on ratification-convention delegates; four—Massachusetts, Maryland, North Carolina, and South Carolina—did not impose even the lower-house property requirements on convention delegates; a fifth (New York) had no property qualifications for lower-house members and imposed none on convention delegates; while a sixth state (New Hampshire) widened delegate eligibility in a different way. Only New Jersey appeared to hold convention delegates to all the same eligibility rules applicable to its lower-house members.
In particular: New Hampshire provided that certain former loyalists ineligible to serve as representatives in the state’s general court could nevertheless serve as convention delegates. Albert Stillman Batchellor, ed., Early State Papers of New Hampshire (1892), 21:165; cf. Beard, Economic Interpretation, 240. Although Massachusetts generally required each member of the state house of representatives to have a freehold of £100 or a ratable estate of £200, Adams, FAC, 316, the state imposed no property qualifications on convention delegates. It provided that the convention election should track lower-house rules of voter eligibility and apportionment, but said nothing about property qualifications for delegates. Debates and Proceedings in the Convention of the Commonwealth of Massachusetts, Held in the Year 1788 (1856), 22–24. In New York, all freemen were eligible to serve as convention delegates, regardless of whether they met the freehold requirement for state senate membership. The New-York Journal and Daily Patriotic Register, April 30, 1788, 3; Adams, FAC, 318. New Jersey apparently applied its lower-house membership qualifications (a personal estate worth £50 proclamation money clear of debts, Adams, FAC, 319) to convention delegates in catchall language that delegate elections should “be conducted agreeably to the mode, and conformably with the Rules and Regulations prescribed for conducting … Elections” of “Representatives in General Assembly.” United States Department of State Bureau of Rolls and Library, Documentary History of the Constitution of the United States of America, 1786–1870 (1894–1905; reprint, 1998–99), 2:61–62. Maryland explicitly provided that all resident citizens could serve as convention delegates, squarely rejecting a proposal from the state senate that delegates must meet the £500 property qualification for the state house of delegates. Votes and Proceedings of the Senate of Maryland, November Session, 1787, 5–7; Forrest McDonald, We the People (1958; reprint, 1992), 149; Adams, FAC, 322. For both its 1788 and 1789 conventions, North Carolina explicitly allowed all freeholders to serve as convention delegates, even though the state required members of its lower house of commons to meet a property qualification of one hundred acres freehold. Clarke, Records of North Carolina, 20:196–97, 370–72, 514–16, 526–27; Adams, FAC, 324. In South Carolina, the senate proposed to require delegates to meet the eligibility rules for the state house of representatives, but the house rejected this proposal. The final result was a law that explicitly limited the convention election to those “intitl’d to Vote for Representatives to the General Assembly” while leaving convention delegates unmentioned and—presumably—unlimited by any property qualification whatsoever. Michael E. Stevens, ed., The State Records of South Carolina: Journals of the House of Representatives, 1787–1788 (1981), 330–33; Adams, FAC, 325.
It also bears notice that in Massachusetts ordinary laws could be vetoed, subject to a two-thirds vote to override in each house, by a governor obliged to meet even higher property thresholds than those applicable to state house and senate members. Adams, FAC, 316. In New York, the state governor and a council collectively wielded a defeasible veto; only freeholders were eligible to serve as governor. Ibid., 318. Ratification by conventions bypassed these pro-property rules as well.
Although Connecticut did not impose higher property qualifications for membership in the legislature than for voting, it did require that both voters and lawmakers be freemen worth 40s. per year or with personal estates valued at £40. Ibid., 317. The state did not impose these restrictions on convention delegates in 1787. Hoadly, Public Records of Connecticut, 6:355. Pennsylvania allowed all taxpayers to vote for and all freemen to serve in the one-house state assembly. Georgia’s rules for voting were almost as generous, but that state did impose property qualifications on members of the singlebranch legislature. Adams, FAC, 320, 327.
Summing the various data from this and the preceding note, we find that ten of the thirteen states used broader suffrage rules for the convention and/or used broader delegate-qualification rules or simply had an especially expansive franchise to begin with. The three states outside this general pattern were Rhode Island, Delaware, and Virginia.
The data presented here contrast sharply with the picture painted by Charles Beard in his controversial 1913 book, An Economic Interpretation of the Constitution. Oddly, though Beard elsewhere lavished attention on the issue of property qualifications for representatives, he omitted all mention of the topic in analyzing the ratification process, focusing instead only on property qualifications for voters. Compare his fourth chapter, on “Property Safeguards in the Election of [Philadelphia] Delegates,” with his eighth chapter, on “The Process of Ratification.” Perhaps this striking inconsistency is explained by the simple fact that the convention-delegate qualification data undercut his general thesis. (For a reading of Beard’s general method that might support this explanation, see Forrest McDonald’s provocative introduction to the 1986 reprint edition of Beard’s book.) Harder to explain, however, is the failure of later scholars, including Beard’s many critics, to highlight the issue of convention-delegate qualifications.
3. “We the People of the States of New Hampshire, Massachusetts, Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina and Georgia do ordain declare and establish the following Constitution for the Government of ourselves and of our Posterity.” Farrand’s Records, 2:152. For an earlier snippet in Wilson’s hand, see ibid., 150. Although Wilson penned these documents, they were composed as part of a five-man drafting committee. Possibly, the initial impetus behind the words “We the People” came from some other committee member(s) and Wilson was merely the scribe, but this seems unlikely. The distinctive emphasis on popular sovereignty in these opening words reverberated with themes that Wilson had sounded early and often at Philadelphia—see, e.g., ibid., 1:49, 52, 68, 69, 127, 132–33, 151, 153–54, 179, 252–53, 259, 279, 359, 361, 365, 379, 405–6—and would continue to sound in the ratification debates and thereafter. Wilson’s draft language also echoed the preamble of his 1776 state constitution: “We, the representatives of the freemen of Pennsylvania … [to] promote the general happiness of the people of this state, and their posterity, … do … ordain, declare and establish the following … CONSTITUTION of this commonwealth.” Cf. Mass. Const. (1780), Preamble (“We, therefore, the people of Massachusetts, … do agree upon, ordain, and establish … the CONSTITUTION OF THE COMMONWEALTH OF MASSACHUSETTS”).
4. Elliot’s Debates, 2:470.
5. See, e.g., ibid., 4:23 (William R. Davie) (“The act of the Convention is but a mere proposal, similar to the production of a private pen”); 24 (William Maclaine) (“The Constitution is only a mere proposal”); 206 (Richard Dobbs Spaight) (similar); 282 (Charles Cotesworth Pinckney) (similar); 3:37–38 (Edmund Pendleton) (similar). Proposing a new Constitution did go beyond the Philadelphia delegates’ commissions, as Madison explicitly admitted in Federalist No. 40, but that fact alone hardly made the proposal “illegal.” Unless and until ratified by the people and thereby made supreme law, the proposal was no more than—but also no less than—a lawful exercise of free expression, akin to a political pamphlet proposing future legislation or future withdrawal from a treaty. For a different interpretation—one which in my view erroneously collapses the distinction between a document lacking the force of law behind it and a document that is itself “illegal”—see Bruce Ackerman, We the People: Foundations (1991), 328–29 n. 4. For more discussion of various issues of legality, see n. 72 below.
6. According to the OED, the word fiat has long been used “with reference to ‘fiat lux’ (let there be light) Gen. i. 3 in the Vulgate: A command having for its object the creation, formation, or construction of something.” In a 1791 lecture, Wilson returned to the Genesis motif via a soft allusion to the God who made Adam from clay: “As to the people … [f]rom their authority the constitution originates: … in their hands it is as clay in the hands of the potter.” Wilson, Works, 1:304. Compare James Madison’s public remarks in 1796, describing the Philadelphia proposal as “nothing but a dead letter, until life and validity were breathed into it by the voice of the People,” Farrand’s Records, 3:374, with Genesis 2:7: “And the LORD God formed man of the dust of the ground, and breathed into his nostrils the breath of life; and man became a living soul.”
7. For a powerful discussion, see Jed Rubenfeld, Freedom and Time (2001), 13, 163–68.
8. See generally Pauline Maier, American Scripture (1997), 47–96.
9. Among America’s future leaders, those who had opposed independence or hesitated in 1776 generally atoned for these lapses by joining the patriot cause while the fate of the Revolution still hung in the balance. For example, although moderate John Dickinson declined to vote for independence in July 1776, neither did he vote against it; and he quickly showed his true colors by fighting the British on the battlefield. Connecticut’s William Samuel Johnson refused to take an oath of allegiance to an independent Connecticut in 1777, but he did so two years later. Similar stories can be told concerning several other early loyalists who went on to leadership positions in independent America, such as Pennsylvania’s Tench Coxe and New Hampshire’s Woodbury Langdon. Maryland’s Philip Barton Key was slower to renounce his youthful loyalism, and slower, too, to achieve eventual political rehabilitation. On the post-ratification political survival of Anti-Federalists, see Richard E. Ellis, “The Persistence of Antifederalism after 1789,” in Richard Beeman et al., eds., Beyond Confederation: Origins of the Constitution and American National Identity (1987), 295–314.
10. See generally Adams, FAC, 61–95; Allan Nevins, The American States During and After the Revolution, 1775–1789 (1924), 129; Gordon S. Wood, The Creation of the American Republic, 1776–1787 (1969), 307, 332; Marc W. Kruman, Between Authority and Liberty: State Constitution Making in Revolutionary America (1997), 15–33, 55–56.
11. On the Massachusetts and New Hampshire Constitutions, see n. 31. Professor Lutz has identified important American colonial documents—church covenants and more localized secular compacts and agreements—that have the same basic “We … do” structure as the Preamble and that helped prepare the ground for the dramatic acts of popular ratification in the 1780s. Donald S. Lutz, The Origins of American Constitutionalism (1988), 13–34. See also Andrew C. McLaughlin, The Foundations of American Constitutionalism (1932), 13–37.
12. Wilson, Works, 2:773–74. A similar, if more rhetorically restrained, meditation appears in the opening paragraphs of Federalist No. 38. For a still earlier speech of Wilson in the same genre, see Elliot’s Debates, 2:422.
13. See Del. Const. (1776), Declaration of Rights, sec. 6 (“the right in the people to participate in the Legislature, is the foundation of liberty and of all free government”); Md. Const. (1776), Declaration of Rights, art. V (similar); Wood, Creation, 24–25, 60–61, 362; Gordon S. Wood, The Radicalism of the American Revolution (1991), 104.
14. For Wilson, see Elliot’s Debates, 2:434–35, 437. Wilson reiterated the point in his later lectures. Wilson, Works, 1:304. For Iredell, see Elliot’s Debates, 4:230. For the Virginia convention, see ibid., 1:327.
15. Elliot’s Debates, 1:327.
16. In Virginia, Edmund Pendleton had specifically linked the right of popular amendment to the people’s right to “assemble.” Ibid., 3:37. For more discussion of the interlinkages between the Preamble, the First Amendment right of “the people” to assemble, and the rights and powers of “the people” guaranteed by the Ninth and Tenth Amendments, see Akhil Reed Amar, The Bill of Rights: Creation and Reconstruction (1998), 26–32, 119–22.
During the ratification debates, Wilson declared that “this single sentence in the Preamble is tantamount to a volume and contains the essence of all the bills of rights that have been or can be devised.” DHRC, 2:383–84. Parroting this line, Federalist No. 84 claimed that the Preamble was “a better recognition of popular rights, than volumes of those aphorisms which make the principal figure in several of our State bills of rights.” Congressman John Vining of Delaware expressed a similar view in the First Congress. “A bill of rights was unnecessary” given the Preamble’s “practical declaration” of popular sovereignty. Annals, 1:467 (June 8, 1789).
17. In response to a proposal to add language to the Preamble expressly declaring, à la Virginia and New York, that “the people have an indubitable, unalienable and indefeasible right to reform or change their Government,” Representative James Jackson of Georgia argued that the Preamble’s “words, as they now stand, speak as much as it is possible to speak; it is a practical recognition of the right of the people to ordain and establish Governments, and is more expressive than any other mere paper declaration.” Annals, 1:451 (June 8, 1789), 741 (Aug. 13). Connecticut’s Roger Sherman agreed: “If this right is indefeasible, and the people have recognised it in practice, the truth is better asserted than it can be by any words whatever. The words ‘We the people’ in the original constitution, are as copious and expressive as possible; any addition will only drag out the sentence without illuminating it.” Ibid., 746 (Aug. 14). For earlier language from Wilson stressing the Preamble’s “practical” import, see this page; Elliot’s Debates, 2:434.
18. Both the Massachusetts and New Hampshire Constitutions, which had been ordained by the voters themselves, contained specific clauses contemplating bills of credit. See Mass. Const. (1780), pt. II, ch. II, sec. I, art. XI; N.H. Const. (1784), pt. II (unnumbered para. beginning “No monies shall be issued …”).
19. See, e.g., U.S. Const., art. I, sec. 10, para. 1 (“No state shall … coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts”). For a candid acknowledgment of the fact that the federal Constitution would effect amendments of existing state constitutions, see Federalist No. 44. For more discussion, see James Madison to George Washington, April 16, 1787, in Madison, Papers, 9:385; Farrand’s Records, 1:317 (Madison), 2:88, 92–93 (Mason, Rufus King, and Madison), 3:229 (Luther Martin’s “Genuine Information”); Kaminski, “New York,” 74.
20. Mass. Const. (1780), pt. II, ch. VI, art. X; DHRC, 14:220 (diary of John Quincy Adams) (“I think it my duty to submit.… In our Government, opposition to the acts of a majority of the people is rebellion to all intents and purposes”). Cf. Elliot’s Debates, 2:157 (Ames: “such a [constitution] as the majority of the people approve must be submitted to by this state; for what right have an eighth or tenth part of the people to dictate a government for the whole?”). For discussion of the possible implications of this principle for federal constitutional amendment under (or outside) Article V, see Chapter 8.
21. See John Locke, The Second Treatise of Government (1690), secs. 221, 243.
22. Elliot’s Debates, 2:432; DHRC, 2:348–49. For later statements from Wilson to the same effect, see Wilson, Works, 1:77–79, 317.
23. Elliot’s Debates, 2:458. See also ibid., 432–33.
24. For Iredell, see ibid., 4:229–30. For Publius, see Federalist No. 78. See also No. 40 (invoking “the transcendent and precious right of the people to ‘abolish or alter their governments as to them shall seem most likely to effect their safety and happiness’ ”).
25. On England, see generally Lois G. Schwoerer, The Declaration of Rights, 1689 (1981); Edmund S. Morgan, Inventing the People: The Rise of Popular Sovereignty in England and America (1988), 110–21. On the Greeks, see Plutarch, The Rise and Fall of Athens: Nine Greek Lives (Ian Scott-Kilvert, trans., 1960), 67; Federalist No. 38.
26. Federalist Governor Samuel Huntington offered similar remarks in his state ratifying convention. Elliot’s Debates, 2:200.
27. For a detailed refutation of this canard, see Adams, FAC, 96–114. Adams demonstrates that “democracy” and “republic” were broadly synonymous from 1776 to 1787, and that although some Federalists, such as Madison, tried to contradistinguish the two words, other leading Federalists continued to use them synonymously. Adams dismisses as “pseudo-learned” the notion “that the founding fathers intended the United States to be a republic but not a democracy.” We shall return to these issues in Chapter 7’s analysis of the Article IV guarantee of a republican form of government.
28. See, e.g., Federalist No. 14 (“the structure of the Union … 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”); No. 22 (“The fabric of American empire ought to rest on the solid basis of THE CONSENT OF THE PEOPLE. The streams of national power ought to flow immediately from that pure, original fountain of all legitimate authority”); No. 39 (“the Constitution is to be founded on the assent and ratification of the people of America, given by deputies elected for the special purpose”); No. 40 (proposed Constitution is “submitted TO THE PEOPLE THEMSELVES”—the “supreme authority”); No. 43 (“The express authority of the people alone could give due validity to the Constitution”); No. 46 (“ultimate authority, wherever the derivative may be found, resides in the people alone”); No. 49 (“the people are the only legitimate fountain of power, and it is from them that the constitutional charter, under which the several branches of government hold their power, is derived”); No. 53 (“The important distinction so well understood in America, between a Constitution established by the people and unalterable by the government, and a law established by the government and alterable by the government, seems to have been little understood and less observed in any other country”); No. 78 (Constitution declares will of “the people” and a “fundamental principle of republican government … admits the right of the people to alter or abolish their established Constitution”); No. 84 (“Here, in strictness, the people surrender nothing; and as they retain every thing, they have no need of particular reservations. ‘WE, THE PEOPLE of the United States, to secure the blessings of liberty to ourselves and our posterity, do ORDAIN and ESTABLISH this Constitution for the United States of America.’ Here is a [clear] recognition of popular rights”).
29. In Federalist No. 10, Madison/Publius elaborated on how congressional representation in a large and diverse country would afford “a republican remedy for the diseases most incident to republican government”—an argument that Madison at Philadelphia had labeled “the only defence agst. the inconveniences of democracy consistent with the democratic form of Govt.” Farrand’s Records, 1:134–35. See also Federalist No. 36 (“door [of eligibility for Congress] ought to be equally open to all”); No. 39 (“Could any further proof be required of the republican complexion of this system, the most decisive one might be found in its absolute prohibition of titles of nobility, both under the federal and the State governments; and in its express guaranty of the republican form to each of the latter”); No. 52 (“the door [to Congress] is open to merit of every description, … without regard to poverty or wealth, or to any particular profession of religious faith”); No. 57 (voters will encompass “the great body of the people”—“not the rich, more than the poor” or the “haughty heirs of distinguished names, more than the humble sons of obscurity and unpropitious fortune”; voters may choose officeholders regardless of “wealth” or “birth”); No. 69 (noting “total dissimilitude” between president as “an officer elected by the people” and “re-eligible as often as the people of the United States shall think him worthy of their confidence” and “king of Great Britain, who is an HEREDITARY monarch, possessing the crown as a patrimony descendible to his heirs forever”); No. 70 (defending the compatibility of “a vigorous Executive” with “the genius of republican government” based on “a due dependence on the people [and] a due responsibility”); No. 76 (Senate confirmation will discourage unfit presidential appointments based on “family connection”); No. 78 (judicial review will ensure that legislatures abide by limits imposed by “the people themselves”); No. 84 (“prohibition of titles of nobility … may truly be denominated the corner-stone of republican government; for so long as they are excluded, there can never be serious danger that the government will be any other than that of the people”); No. 85 (cataloguing “the additional securities to republican government, to liberty and to property” contained in the Constitution: the suppression of local insurrections, factions, and despots; the diminution of the risk of foreign intrigue that would be triggered by dissolution of the union; the prevention of extensive military establishments that would result from disunion and wars between the states; the express guaranty of republican government; the bans on state and federal titles of nobility; and the ban on state practices undermining property and credit).
30. Elliot’s Debates, 2:434, 482, 523 (emphasis deleted).
31. On Pennsylvania, see Samuel B. Harding, “Party Struggles Over the First Pennsylvania Constitution,” in Annual Report of the American Historical Association for the Year 1894 (1895), 371–79; Chilton Williamson, American Suffrage (1960), 92–96; Adams, FAC, 75–76; Alexander Keyssar, The Right to Vote: The Contested History of Democracy in the United States (2000), 16; Maier, American Scripture, 66; see also Kruman, Between Authority, 26. On Massachusetts, see “The Call for a Convention, June, 15, 1779,” in Oscar Handlin and Mary Handlin, eds., The Popular Sources of Political Authority (1966), 402–3; see also Samuel Eliot Morison, “The Struggle Over the Adoption of the Constitution of Massachusetts, 1780,” Proceedings of the Massachusetts Historical Society 50 (1917): 355. In 1778, an earlier proposed constitution had also come before Massachusetts town meetings that had waived standard provincial property requirements in favor of universal adult male suffrage. “Resolve of May 5, 1777,” in Handlin, 174–75. See also Adams, FAC, 3, 87–88; Kruman, Between Authority, 30–32. However, the Bay State principle that a constitutional election required the broadest popular suffrage was clouded by an apparent property qualification for early participation in the 1795 amendment process—a process that was ultimately deemed nonexclusive; see Chapter 8. New Hampshire gave the ratification power to “the Inhabitants of this State in their respective Town meetings,” with no mention of any property qualifications. No property qualifications limited membership in the conventions elected to frame the proposed document: “every Town, Parish & District” could choose delegates “as they shall judge … expedient.” Nathaniel Bouton, ed., State Papers: Documents and Records Relating to the State of New Hampshire (1874) 8:774–76, 897–98. See also Williamson, American Suffrage, 105–6; Richard Francis Upton, Revolutionary New Hampshire (1936), 175–87; Wood, Creation, 289.
32. The Delaware experience, tracking that of Pennsylvania, also deserves mention. For brief accounts, see Wood, Creation, 332–33; Adams, FAC, 72–74 & n. 46; Kruman, Between Authority, 28–30.
33. Farrand’s Records, 2:90 (Gorham), 92 (King). Cf. ibid., 2:215 (Gorham: “He had never seen any inconveniency from allowing such as were not freeholders to vote”); Elliot’s Debates, 2:35 (King: “He never knew that property was an index to abilities. We often see men, who, though destitute of property, are superior in knowledge and rectitude”). For state constitutions formally excluding clergy from legislative membership, see Va. Const. (1776) (unnumbered para. beginning “The two Houses of Assembly …”); Del. Const. (1776), art. 29; Md. Const. (1776), art. XXXVII; N.C. Const. (1776), art. XXXI; Ga. Const. (1777), art. LXII; N.Y. Const. (1777), art. XXXIX; S.C. Const. (1778), art. XXI.
34. Recall the successful claims of propertyless Pennsylvania militiamen in 1776 that their arms-bearing entitled them to the franchise; see this page. Benjamin Franklin, who had supported the militiamen’s claims in 1776, returned to the linkage between suffrage and military service in his closed-door remarks to the Philadelphia drafters strongly opposing any constitutionally mandated property qualifications for voting in federal elections: “In time of war a country owed much to the lower class of citizens. Our late war was an instance of what they could suffer and perform. If denied the right of suffrage it would debase their spirit and detatch [sic] them from the interest of the country.” Farrand’s Records, 2:210. For more discussion, see Chapter 2, this page.
35. Anxiety about slave revolts appeared prominently in the Declaration of Independence, which condemned George III for “excit[ing] domestic insurrections amongst us.” See Maier, American Scripture, 147.
36. See Keyssar, Right to Vote, 20, 54. Note that voting by widows did not raise some of the concerns that might have arisen from voting by wives subject to common-law coverture servitude to their husbands.
37. On the Philadelphia society, see Wood, Radicalism, 186. On the more general movement against slavery, see Act for the Gradual Abolition of Slavery, 1780, in Alexander James Dallas, ed., Laws of the Commonwealth of Pennsylvania (1795–1801), 1:838–43; William Wiecek, The Sources of Antislavery Constitutionalism in America, 1760–1848 (1977), 40–51, 60–61, 89–90; Edmund Cody Burnett, The Continental Congress (1941), 598–600. On the slave trade, see Nevins, American States, 445–48.
38. For more details, see Chapter 7. For general background, see Jack P. Greene, Peripheries and Center: Constitutional Development in the Extended Polities of the British Empire and the United States, 1607–1788 (1986). And for a quick yet nuanced sketch of various similarities and differences among the colonies, see John M. Murrin, “A Roof without Walls: The Dilemma of American National Identity,” in Beeman et al., eds., Beyond Confederation, 333–48.
39. JCC, 1:101–13 (Oct. 21–26, 1774).
40. Granted, there were important differences of capitalization and even caption between the famous hand-signed document and an earlier printed version of the Declaration, the so-called Dunlap broadside. For now, I seek merely to identify possible readings of the Declaration’s intriguing text. Ultimately, I shall place far more weight on the act of declaration itself, on the general structure of the Continental Congress, and on the more definitive legal acts and texts of Confederation and Constitution. For discussion of the two Declaration texts, see Maier, American Scripture, 150–53; Carlton F. W. Larson, “The Declaration of Independence: A 225th Anniversary Reinterpretation,” Washington LR 76 (2001): 701, 724–27.
41. Thus, when the Declaration discussed how the king had “dissolved Representative Houses” and attempted to suspend the “Legislative powers,” thereby causing such powers to revert to the hands of “the People at large for their exercise,” this meant the people within each colony. In various colonies, local patriots, with the encouragement of the Continental Congress, created new de facto provincial legislatures to replace the old de jure colonial assemblies dissolved by the Crown. The king had never dissolved the Continental Congress (which was not typically described as a “Representative House” vested with formal “Legislative powers”).
42. For a similar reading, see Wood, Creation, 356–57.
43. Hoadly, Public Records of Connecticut, 1:3 (emphasis added). See generally Claude H. Van Tyne, “Sovereignty in the American Revolution: An Historical Study,” AHR 12 (1906): 538.
44. See Nevins, American States, 62; Adams, FAC, 48–49, 62, 78, 275–78, 286; Curtis Putnam Nettels, “The Origins of the Union and of the States,” Proceedings of the Massachusetts Historical Society 72 (1963): 74; Jack Rakove, The Beginnings of National Politics (1979), 95, 97–98, 100. The situation in Pennsylvania was somewhat unusual as the old colonial assembly and patriot critics outside the assembly vied for control during the late spring and early summer of 1776. Eventually, patriots muscled their way forward as the old assembly crumbled.
45. JCC, 4:342, 357–58 (the “recommend[ations]” of May 10 and May 15, 1776); 6:1087–92 (Jefferson’s notes paraphrasing June 8 arguments of James Wilson, Robert R. Livingston, Edward Rutledge, and John Dickinson, and the responses of John Adams, Richard Henry Lee, George Wythe, and others); Elliot’s Debates, 1:56–60 (same). To repeat, these remarks occurred long after the mid-May votes on state constitution making, votes that some nationalist scholars have adduced as proof of the supremacy of the union over individual states in 1776. On the legal significance of the word “recommend[],” see n. 61 below.
46. This anxiety also helps explain the first Continental Congress’s “Letter to the Inhabitants of Quebec,” in JCC, 1:105–13 (Oct. 26, 1774).
47. Actually, New York lagged slightly behind the others, abstaining on the votes in early July and then explicitly endorsing independence in its Revolutionary provincial congress a few days later. For details, see Maier, American Scripture, 45.
48. Whereas the Continental Congresses of 1774 and 1775 had operated on a one-state, one-vote rule, Franklin’s 1754 Albany Plan had proposed giving larger colonies, like Franklin’s own Pennsylvania, more seats, an idea Franklin repeated in a plan he brought before the Continental Congress on July 21, 1775. JCC, 2:195, 199. Pennsylvanian Joseph Galloway’s 1774 plan for an intercolonial assembly had also been heading in the direction of proportionality before it was derailed in the First Continental Congress. Ibid., 1:49–51, 102 n. 1 (Sept. 28 and Oct. 21, 1774).
49. JCC, 5:425, 431.
50. The leading English law dictionary of the day presented “Treaties, Leagues, and Alliances” as a single entry, and Blackstone’s Commentaries treated the three categories en masse. Giles Jacob, A New Law Dictionary, Owen Ruff-head and J. Morgan, eds., (9th ed., enl. 1772); Blackstone’s Comm., 1:*257.
51. At the Philadelphia Convention, Wilson challenged Luther Martin’s extreme claim that “the separation from [Great Britain] placed the 13 states in a state of nature towards each other”—a claim that seemed to deny even an implicit military and diplomatic alliance in the fight against Britain. According to Wilson, the United States on July 4, 1776, “were independent, not Individually but Unitedly” and the states “were confederated as they were independent.” Farrand’s Records, 1:324. This correction did not contest that the states were merely confederated; and thus Wilson supported the Article VII rule that each state was ultimately free to go its own way in ratifying the Constitution or not—a rule that logically implied that each state was ultimately sovereign prior to joining the more perfect union. See ibid., 1:123, 127, 482, 469. Wilson had himself made secessionist threats on behalf of Pennsylvania in late July, 1776. Rakove, Beginnings, 161. Many nationalist interpreters of the Declaration have stressed Wilson’s “Unitedly” language while omitting his key word “confederated” and ignoring other statements and actions of Wilson that undercut a strong notion of national indivisibility prior to 1788. See, e.g., Samuel H. Beer, To Make a Nation: The Rediscovery of American Federalism (1993), 236, 325.
In 1796 Supreme Court Justice Samuel Chase, who like Wilson had signed the Declaration, wrote that he considered it “as a declaration, not that the United Colonies jointly, in a collective capacity, were independent states, &c. but that each of them was a sovereign and independent state, that is, that each of them had a right to govern itself by its own authority, and its own laws, without any controul from any other power upon earth.” Ware v. Hylton, 3 U.S. (3 Dall.) 199, 224–25 (1796). Chase went on to admit that “Congress properly possessed the great rights of external sovereignty” and further presumed that acts of Congress prior to the ratification of the Articles were authorized by general acquiescence. Ibid., 231–32. See also Penhallow v. Doane’s Administrators, 3 U.S. (3 Dall.) 54, 91–96 (1795) (Iredell, J.) (suggesting that authority of the Continental Congress prior to the ratification of the Articles rested on the acquiescence of the people of each state individually, rather than the people of America en masse; and that Congress enjoyed “high powers of … external sovereignty” that a state could avoid only by “withdrawing from the confederation”).
52. Mass. Const. (1780), pt. I, art. IV (emphasis added).
53. N.H. Const. (1784), pt. I., art. VII.
54. Because the Articles did not take effect until ratified by every state, their provision prescribing term limits for congressmen began to operate only in 1781, resulting in mandatory departures beginning in 1784. On this point, see Rakove, Beginnings, 218. See also ibid., 287–88 (“Congress fixed March 1, [1781], as the day the confederation would finally take effect”). For Rakove on “threats of disunion,” see ibid., 161. For Lynch, see JCC, 6:1080.
55. The issue was far from hypothetical. In the early 1780s, little Rhode Island scuttled a proposed amendment that eleven larger states had endorsed. One other low-population state—Georgia—had yet to act. For corrections to Madison’s claim in Federalist No. 40—a claim often repeated by standard histories—that twelve states had endorsed the 1781 impost amendment, see Jackson Turner Main, The Antifederalists: Critics of the Constitution, 1781–1788 (1961), 72–74 & n. 2; Forrest McDonald, E Pluribus Unum: The Formation of the American Republic, 1776–1790 (2d ed. 1979), 54; Rakove, Beginnings, 316, 338.
56. Farrand’s Records, 1:250.
57. Cf. ibid., 256 (Randolph labeling Confederation Congress “a mere diplomatic body”).
58. For details, see Chapter 2.
59. Emmerich de Vattel, The Law of Nations (1760), bk. I, ch. I, sec. 10 (emphasis added). For a similar analysis of Vattel and the Articles of Confederation, see Wood, Creation, 355. See also Gordon S. Wood, The Making of the Constitution (1987), 5–6. On Vattel’s influence in America, see generally Peter S. Onuf and Nicholas Onuf, Federal Union, Modern World (1993), 1–26; Locke, Second Treatise, sec. 14. Blackstone’s Comm., 1:*97 n. e (added in 1766 ed.); see also ibid., 4:i (supplement to 1st ed.).
60. But see Farrand’s Records, 1:323 (Rufus King, denying that states were “ ‘sovereign[]’ in the sense contended for by some”—note the qualification—because individually they did not “make war, nor peace, nor alliances, nor treaties”).
61. For a similar suggestion, see Larson, “Declaration of Independence,” 721–63. Generally, the evidence adduced by modern scholars on behalf of a “nationalist” interpretation of the confederation period proves little about the status of secession rights. See Richard B. Morris, The Forging of the Union (1987), 55–79; Rakove, Beginnings, 173–74 n.; Beer, To Make a Nation, 195–206. The military, diplomatic, and state-constitutional coordination among the states, via instructed congressmen, did not negate the ultimate authority of each state (by which I mean of course the people within each state, rather than the state government as such) on the secession issue. Morris draws overbroad nationalist lessons from the First Continental Congress, which coordinated petitions and boycotts within a framework of avowed loyalty to the king rather than of military resistance or independence. It is hard to see this Congress as claiming the general powers of a de facto government. See generally Van Tyne, “Sovereignty.” As for the Second Continental Congress, Morris and Beer downplay several decisive points: (1) Emerging de facto governments within each colony generally picked the delegates, and retained the right to instruct or recall them. (2) Never, prior to independence, did the view or practice prevail that Congress had any right to legislate for dissenting colonies or to prevent their unilateral exit. (3) By contrast, the emerging de facto governments within each state—as the successors of long-established colonial governments operating with the same traditional geographic boundaries and featuring similar lawmaking bodies—did claim and exercise precisely this right to bind local dissenters. Thus, when the American people acted in 1775–76, they acted within each colony in coordination with patriots in other colonies rather than as an undifferentiated continental “collectivity,” as Morris would have it. Forging, 76. Ultimately, Morris and like-minded scholars conflate the people/government distinction with the national/state distinction. The Revolution was effected by the people, to be sure, but not by a single collective and indivisible national people. These commentators also at times conflate issues of external sovereignty vis-à-vis the rest of the world with the unilateral secession issue that would later vex the Union. Troubling, too, is the treatment these commentators give to the key law words both present in and absent from several of the most important legal texts. In a passage that Beer pointedly reiterates, Rakove claims that “the idea that the confederation was essentially only a league of sovereign states was ultimately a fiction. Congress was in fact a national government, burdened with legislative and administrative responsibilities.” Rakove, Beginnings, 184–85; Beer, To Make a Nation, 196. Yet the Articles used the law words “confederation,” “league,” and “sovereign” states while studiously not using the law words “national,” “government,” or “legislative” to describe Congress. (Nor did Congress’s basic structure resemble any legislature that existed in America or elsewhere. Rather, the Confederation Congress resembled a traditional international assemblage of ambassadors, akin to today’s United Nations.) Similarly, Beer says that words like “recommendation” in the documents on which he relies do not mean what they say, and that the legal language of the Articles was mere “rhetoric” because “all disdained the compact federalism of leagues and of confederations.” Ibid., 195–96, 199–200, 419 n. 13. For a rather different view, which explains the important differences between recommendations and laws, see Richard P. McCormick, “Ambiguous Authority: The Ordinances of the Confederation Congress, 1781–1789,” Am. J. of Legal Hist. 41 (1997): 411.
However one might construe the complicated events and legal texts of 1775–76 standing alone, the later Articles of Confederation explicitly codified a system of state sovereignty. Most important of all, the very act of constitution itself, in Article VII, proceeded on the basis of preexisting state sovereignty, at least on the secession issue. Thus, state sovereignty as of September 1787 is the theory of the Constitution itself. How can a strong nationalist interpretation of the pre-constitutional period explain the fact that the act of constitution itself was, as Madison stressed in Federalist No. 39, emphatically “not … national, but … federal”?
62. See, e.g. Farrand’s Records, 1:34 (Gouverneur Morris); see also OED entry on “federal” (defining “federal” as “Of or pertaining to a covenant, compact, or treaty,” with examples dating from 1660). For more primary source references, see Main, Antifederalists, 120 n. 5. See generally Martin Diamond, “The Federalist’s View of Federalism,” in Essays in Federalism (1961), 21–64; Martin Diamond, “The Federalist on Federalism: ‘Neither a National nor a Federal Constitution, but a Composition of Both,’ ” Yale LJ 86 (1977): 1273; Beer, To Make a Nation, 222–24.
63. Story, Commentaries, 1:227, sec. 246 (quoting unidentified wag) (emphasis deleted); James Madison, “Vices of the Political System of the U. States,” in Madison, Papers, 9:348–57.
64. For Wilson on “partial union,” see Farrand’s Records, 1:123. According to Yates’s notes, Wilson argued that whichever states “do ratify it [the proposed Constitution] will be immediately bound by it, and others as they may from time to time accede to it.” Ibid., 127. Charles Pinckney endorsed Wilson’s idea and presciently proposed nine states as the minimum threshold. Ibid., 123. Madison wrote that Wilson’s “hint was probably meant in terrorem to the smaller States of N. Jersey & Delaware.” Ibid., 123 n. For later suggestions along similar lines, see ibid., 320–21, 327 (Madison), 462 (Nathaniel Gorham), 482 (Wilson), 541 (Elbridge Gerry). Cf. ibid., 2:90 (Gorham suggesting that nonconcurrence of Rhode Island and a few other states, perhaps including New York, should not prevent other states from forming a new union amongst themselves). For Paterson on Wilson’s “hint,” see ibid., 1:179. See also ibid., 445 (Martin) (if “the three great States should league themselves together, the other ten could do so too”). For Wilson’s conclusion that “the States only which ratify can be bound,” see ibid., 2:469. The following day, the language of Article VII was amended to make this point explicit. Ibid., 475.
65. It might be suggested that the proposed Constitution would merely amount to a new side alliance among nine or more of the thirteen states, and that such alliances were permissible so long as (1) the allying states lived up to all the rules of the Articles of Confederation when dealing with the remaining states, and (2) the allying states secured the blessing of the Congress under the Articles (which, presumably, they would have been able to do by so instructing their confederate delegates). See Articles of Confederation (1781), art. VI, para. 2 (outlining procedures for side deals among two or more confederate states.) I have not encountered evidence that friends of the Constitution ever advanced this argument. Generally, they seemed to concede that governance under the Constitution would be incompatible with continuation of the Articles of Confederation, and maintained a prudent silence on the precise nature of the relationship the new union would work out with any nonratifying states. See, e.g., Federalist No. 43.
66. This was emphatically George Washington’s general view of treaties and other international agreements. Edmund S. Morgan, The Meaning of Independence (1976), 49–50.
67. Blackstone’s Comm. 1:*97 n. e (added in 1766 ed.); see also ibid., 4:i (supplement to 1st ed.).
68. Vattel, Law of Nations, bk. II, ch. XIII, sec. 200. See also ibid., sec. 202 (“That the violation of one article in a treaty may occasion the breaking the whole”). See also Hugo Grotius, Of the Rights of War and Peace (1715; reprint, 2001), bk. II, ch. XV, sec. XV (“If either Party break the League, the other is freed, because each Article of the League has the force of a Condition”) (emphasis deleted).
69. See Madison, “Vices,” in Madison, Papers, 352–53. General Jedidiah Huntington appealed to the breached treaty argument in May 1787, urging the Connecticut legislature to send a delegation to Philadelphia: “The compact between the several states has not any penalty annexed to it for the breach of its conditions … whenever therefore any state refuses a compliance with a requisition made agreeably to the confederation, all obligation on the part of the other states is dissolved.” DHRC, 13:106.
70. Farrand’s Records, 1:122–23, 315. Lest anyone miss the point, Madison reminded his colleagues that “the violations of the federal articles had been numerous & notorious.” See also ibid., 485. In one speech, Madison may well have had a copy of Blackstone in hand as he sharply distinguished, as had Blackstone, “between a league or treaty, and a Constitution.… The doctrine laid down by the law of Nations, in the case of treaties is that a breach of any one article by any of the parties, frees the other parties from their engagements. In the case of a union of people under one Constitution, the nature of the pact has always been understood to exclude such an interpretation.” Ibid., 2:93.
71. Pinckney’s comments appeared a week before the publication of Federalist No. 43 in New York: “The Confederation was a compact … that had been repeatedly broken by every state in the Union; and all the writers on the laws of nations agree that, when the parties to a treaty violate it, it is no longer binding.” Elliot’s Debates, 4:308. According to Iredell, “Perhaps every state has committed repeated violations of the demands of Congress.… The consequence is that, upon the principle I have mentioned, (and in which I believe all writers agree,) the Articles of Confederation are no longer binding.” Ibid., 230. Note, however, that Iredell did not refer to the Articles as a “treaty” and thus his comments are more ambiguous than Madison’s and Pinckney’s. Pinckney’s legal analysis was disputed by Rawlins Lowndes. Ibid., 310. The breached-treaty defense also appeared in private correspondence. See, e.g., John Brown Cutting to William Short, circa Jan. 9, 1788, in DHRC, 14:497; Samuel Holden Parsons to William Cushing, Jan. 11, 1788, in Bernard Bailyn, ed., The Debate on the Constitution (1993), 1:753.
72. For the argument that the Federalists’ restraint also reflected the legal weakness of the breached-treaty defense of secession, see Bruce Ackerman and Neal Katyal, “Our Unconventional Founding,” U. of Chicago LR 62 (1995): 475. Though I share Ackerman and Katyal’s view that arguments from realpolitik and general principle often dominated narrow legal analysis in debates about Article VII, I remain skeptical of some of their strong claims and characterizations concerning what they refer to as “the Federalists’ flagrant illegalities.” Ibid., 476.
In particular: The fact that some Philadelphia delegates went beyond the terms of their commissions (as commissioners, envoys, diplomats, and ambassadors sometimes do when distinctly advantageous negotiating opportunities present themselves) does not itself constitute “illegality.” Also, various descriptions of events as “extra-constitutional” should not be read as “unconstitutional.” For instance, a private opinion poll or a nonbinding popular vote for U.S. senator in 1900 might be outside the constitution, yet not in violation of it. On the issue of Article VII ratification, Ackerman and Katyal claim that if A, B, and C mutually league together and B breaches, A and C remain bound to each other. Ibid., 554. Not always. If all the states between New Hampshire and Georgia breached, the very essence of the confederacy—its main purposes and presuppositions—might well have failed so completely so as to free the remaining parties, separated as they were by a thousand miles and unable to enjoy the military and other benefits that had underlain their initial agreement to join. Beyond issues of breach lay questions concerning what contract lawyers call “fundamental failures of conditions precedent” and “impossibility” and what international lawyers refer to as the (changed-circumstances) doctrine of rebus sic stantibus. Ackerman and Katyal argue that a party with unclean hands (that is, a party itself guilty of some breach) might not have a perfect legal right to rescind. Ibid., 555. By the same token, however, neither would a complaining party with unclean hands have a perfect legal right to object and receive specific performance. Ackerman and Katyal also note that formal rescission requires official acts. Ibid. True enough, but these acts followed rather than preceded the ninth state’s ratification. Until then, no rescission had occurred, and even after that, the announced rescission was not to be immediate. The very lack of immediacy made the rescission more justifiable, by giving the old confederacy time to wind up affairs in an equitable manner. Thus, the continuing actions of the Confederation Congress after the ninth ratification and before the convening of the First Constitutional Congress are not inconsistent with a breached-treaty approach, contra Ackerman and Katyal at 556–58. Finally, it is critical to note that the proposed rescission was not unilateral but multilateral. Nine states would have to agree. If they did, these states were enough to constitute a definitive majority of the old Confederation Congress—the only juridical entity that would be in a position to resolve whatever dispute might arise should one or more of the nonratifying states claim legal injury. In other words, the only real “international court” that existed in 1787 was the Confederation Congress itself, and the new Constitution would take effect if and only if nine states—a controlling majority of that Congress—agreed that dissolution of the old Confederation was justified.
73. Jay made a similar observation in an October 13, 1786, report to the Confederate Congress on state breaches of America’s 1783 Peace Treaty with Britain. JCC, 31:870 (noting desirability of union response to state breaches that “points at no particular State” and thus “cannot wound the feelings of any”).
74. See n. 3 above.
75. At the outset of Article VI, the Constitution did use the word “Confederation,” but only to distinguish the old regime of the Articles from the new order being proposed by the Constitution itself. Also, Article I, section 10 forbade states from entering into any “Treaty, Alliance, or Confederation.” The phrase “this Constitution” appeared in the necessary-and-proper clause of Article I, section 8; in the Article II, section 1 clause requiring that a president generally be a natural-born citizen; in the Article III, section 2 clause extending the judicial power to all federal question cases; in the Article IV, section 3 clause governing federal property; and in a cluster of provisions in Articles V through VII.
76. When this supremacy clause was first introduced at Philadelphia by Luther Martin, it failed to specify the supremacy of the federal Constitution over state constitutions. Farrand’s Records, 2:28–29. Martin fumed at the delegates’ subsequent modification of the clause, and with good reason, for the modification decisively repudiated his view that the new Constitution should remain a classic confederacy among thirteen sovereign peoples. Ibid., 3:287.
77. Federalist No. 15 (describing the Constitution as repudiating the idea of “a league or alliance between independent nations” in “a treaty … depending for its execution on the good faith of the parties” in favor of “a government” with the “power of making laws”); No. 33 (distinguishing between “a mere treaty, dependent on the good faith of the parties” and a “government” whose “laws … pursuant to the powers intrusted to it by its constitution, must necessarily be supreme over those societies, and the individuals of whom they are composed”); Madison, “Vices,” in Madison, Papers, 352 (defining a “Constitution” as an instrument by which separate states “are become one sovereign power”). See generally Locke, Second Treatise, sec. 14 (distinguishing between “league” and pact “to enter into one community, and make one body politic”); Blackstone’s Comm., 1:*97 n. e (similar).
78. For Nasson, see Elliot’s Debates, 2:134. “Letters of a Federal Farmer (IV),” in Ford, ed., Pamphlets, 311 (emphasis added). Robert Yates, “Essays of Brutus (XII),” in Storing’s Anti-Fed., 2:424–25. A similar view was expressed by another New York Anti-Federalist in “Letters of Cato (II),” in ibid., 108. For the Pennsylvania Anti-Federalists, see DHRC, 2:630 (“The Address and Reasons of Dissent of the Minority of the Convention of the State of Pennsylvania to Their Constituents”); ibid., 393, 407–8, 447–48 (Whitehill, Smilie, Findley). For Martin, see Farrand’s Records, 3:158–59, 223.
79. Elliot’s Debates, 3:44, 22, 55. For similar Anti-Federalist readings of the Preamble, see Main, Antifederalists, 122 n. 10.
80. Farrand’s Records, 2:93 (quoted). See also Madison, “Vices,” in Madison, Papers, 352 (distinguishing “a league of sovereign powers” and a “political Constitution by virtue of which they are become one sovereign power”).
81. An act for rendring the union of the two kingdoms more intire and compleat (1707), 6 Anne, c. 6 (emphasis added).
82. Elliot’s Debates, 2:463 (Wilson), 4:187 (Johnston), 3:586–87 (Wythe). See also ibid., 2:540 (Thomas McKean) (the proposed Constitution “unites the several states, and makes them like one, in particular instances and for particular purposes—which is what is ardently desired by most of the sensible men in this country”).
83. On Virginia, see this page above. Several conventions did however endorse specific suggested amendments, and also tried to make explicit their understandings of various constitutional provisions for whatever weight this contemporaneous legislative history might merit in subsequent interpretations. See Elliot’s Debates, 1:319–37, 3:656–63.
84. For Hamilton on “slender” chances, see his letter to Madison, June 25, 1788, in Hamilton, Papers, 5:80. On the proposed compromise, Elliot’s Debates, 2:411. For Federalist insistence on “full confidence” rather than “condition[s],” see Hamilton, Papers, 5:193–95. See also Elliot’s Debates, 2:412. On the defeat of Lansing’s proposal, see ibid. This vote goes unmentioned by the great historian Kenneth M. Stampp, and surely qualifies his claim that “no state convention made the right of secession the subject of extended inquiry.” “The Concept of a Perpetual Union,” J. of Am. Hist. 65 (1978): 5, 20. Stampp also claims that The Federalist and the Federalists generally had little to say on the topic of secession. Ibid. For a very different reading of the dominant Federalist argument for union, and its overwhelming (if implicit) repudiation of a subsequent right of unilateral secession, see this page–this page below.
85. Madison’s letter to Hamilton, July 20, 1788, is in Madison, Papers, 11:189. For Hamilton on the “perpetual compact,” see “New York Ratifying Convention. First Speech of July 24,” in Hamilton, Papers, 5:193–95. See also Kaminski, “New York,” 112; Stampp, “Concept,” 18 n. 51. For Hamilton’s earlier wavering, see Hamilton to Madison, July 19, 1788, in Hamilton, Papers, 5:177–78. For Hamilton and Jay’s repudiation of “a right to withdraw,” see excerpt from The Daily Advertiser, July 28, 1788, in ibid., 5:194–95.
86. For Lincoln’s claim that “none of our states, except Texas, ever was a sovereignty,” see his Special Session Address to Congress, July 4, 1861, in which Lincoln also made clear that “Texas gave up [her sovereign] character on coming into the Union.” For Jefferson Davis’s state-sovereignty reading of the Declaration and Articles of Confederation, see his The Rise and Fall of the Confederate Government (n.d.; reprint, 1958), 1:86–94.
87. Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 187 (1824).
88. Adams, FAC, 228.
89. In the words of the 1766 Declaratory Act that grated on colonial ears, Parliament “hath, and of right ought to have, full power and authority to make laws and statutes of sufficient force and validity to bind the colonies and people of America … in all cases whatsoever.” An act for the better securing the dependency of his Majesty’s dominions in America upon the crown and parliament of Great Britain (1766), 6 Geo. 3, c. 12. The Declaration of Independence famously rejected Parliament’s acts of “pretended Legislation” and claims to “a jurisdiction foreign to our Constitution, and unacknowledged by our laws.”
90. See Declarations of the Stamp Act Congress, Oct. 19, 1765 (“IV. That the people of these colonies are not, and from their local circumstances cannot be, represented in the House of Commons in Great-Britain”). See generally Adams, FAC, 131, 231; Greene, Peripheries and Center, 37, 123; Morgan, Inventing the People, 242; cf. Beer, To Make a Nation, 168–77.
91. On assemblies’ control of congressmen, see Van Tyne, “Sovereignty,” 529–31; Morgan, Inventing the People, 263; Morris, Forging, 56–58, 77–79. To the pattern of annual elections, there were only three exceptions: In Rhode Island and Connecticut, elections occurred twice a year; in South Carolina, once every two years. Federalist No. 53. For an example of an assembly changing its name, the Virginia House of Burgesses became the House of Delegates. For continuity (and some differences) between colonial and state legislatures, see Nevins, American States, 1–2, 88–97, 118–19; Adams, FAC, 27, 34–35, 52, 61–95; Greene, Peripheries and Center, 164–65; Morgan, Inventing the People, 245, 247, 257. On increased legislative size, see generally Jackson Turner Main, “Government by the People: The American Revolution and the Democratization of the Legislatures,” WMQ 23 (1966): 391.
92. Recall Patrick Henry’s words calling the Philadelphia plan a step “as radical as that which separated us from Great Britain.”
93. See Adams, FAC, 2, 267, 289, 290–300, 310; Lutz, Origins, 138.
94. For Lansing, see Farrand’s Records, 1:250. See also ibid., 338 (Lansing) (“The system was too novel & complex”). For Martin, see ibid., 439. See also ibid., 3:292 (“Martin’s Reply to the Landholder”) (describing Philadelphia plan as a “motley mixture” and “strange hotch-potch”—an “innovation in government of the most extraordinary kind”); “Letters of Centinel (XV),” in Storing’s Anti-Fed., 2:196. For similar traditionalist objections to the Constitution’s novelty, see, e.g., “Essays of John DeWitt (I),” in ibid., 4:18; “Letters of Agrippa (IV),” in ibid., 4:76; “A Republican Federalist (V),” in ibid., 4:178.
To put my point in Professor Ackerman’s framework: Even if some leaders in 1776 took steps toward indissoluble nationhood, their proposals failed to be codified by the decisive legal text of the Articles of Confederation, and the Constitution itself properly presupposed that no indivisible continental nation existed in 1787. Professor Beer therefore gets matters backward when he suggests that Americans repudiated a century of local governance in favor of continental nationhood in 1775–76 (when little focused discussion of indivisibility occurred, and the legal data are mixed at best) even as he downplays the focused federalism debate that did occur in 1787–89. See Beer, To Make a Nation, 321. Beer also errs in suggesting that the federal origins of the act of constitution somehow support later “nullifiers and secessionists.” Ibid. On the contrary, it was in this very debate that America squarely focused on nullification and secession—indeed practiced them by nullifying the Articles and seceding from the Confederation—and forswore the future permissibility of unilateral nullification or secession under the Constitution’s decisively different, more perfect union.
95. On the minimal impact of No. 10 in the Founding era, see Douglass Adair, Fame and the Founding Fathers: Essays by Douglass Adair, Trevor Colbourn, ed. (1974), 75–76; Larry D. Kramer, “Madison’s Audience,” Harvard LR 112 (1999): 611. For an important exposition of the themes of the early Federalist essays apart from No. 10, see Frederick W. Marks III, Independence on Trial: Foreign Affairs and the Making of the Constitution (1973), 167–75. For two other useful correctives, featuring incisive overviews of the great federalism debate of the late 1780s, see David F. Epstein, “The Case for Ratification: Federalist Constitutional Thought,” in Leonard W. Levy and Dennis J. Mahoney, eds., The Framing and Ratification of the Constitution (1987), 292–304; Peter S. Onuf, “State Sovereignty and the Making of the Constitution,” in Terence Ball and J.G.A. Pocock, eds., Conceptual Change and the Constitution (1988), 78–98. For an extended quantitative analysis of the ratification conversation, see William H. Riker, The Strategy of Rhetoric: Campaigning for the American Constitution (1996).
96. Annals, 1:454–55, 784 (June 8 and Aug. 17, 1789).
97. DHRC, 13:595, 14:531–33, 15:575–78, 16:597–600.
98. Federalist No. 8; Blackstone’s Comm., 1:*418. See also Federalist No. 41 (principal reliance on “maritime strength” would enable America to emulate “the insular advantage of Great Britain”; navies are “most capable of repelling foreign enterprises” but “can never be turned by a perfidious government against our liberties”). In an August 11, 1786, letter to James Monroe, Thomas Jefferson observed that a “naval force can never endanger our liberties, nor occasion bloodshed; a land force would do both.” Jefferson, Papers, 10:225.
99. For “BORDERING nations,” see Federalist No. 5. On the elevation of the military, see No. 8. Elsewhere in this essay, Publius links standing armies with a loss of “liberty.”
100. Ibid., Nos. 4–5.
101. Ibid., No. 11. See also No. 5 (explicitly invoking union of England and Scotland as model for American union). In a pamphlet published in mid-April 1788, Jay reiterated the point:
The old Confederation [is falling apart]. Then every State would be a little nation, jealous of its neighbors, and anxious to strengthen itself by foreign alliances, against its former friends. Then farewell to fraternal affection, unsuspecting intercourse; and mutual participation in commerce, navigation and citizenship. Then would arise mutual restrictions and fears, mutual garrisons,—and standing armies, and all those dreadful evils which for so many ages plagued England, Scotland, Wales, and Ireland, while they continued disunited, and were played off against each other.… You know the geography of your State, and the consequences of your local position. Jersey and Connecticut, to whom your impost laws have been unkind … cannot, they will not love you—they border upon you, and are your neighbors; but you will soon cease to regard their neighborhood as a blessing.
John Jay, “An Address to the People of the State of New-York,” in Ford, Pamphlets, 84.
102. Federalist No. 15.
103. On “dismemberment,” see ibid., No. 1. The first paragraph of this essay sounds the alarm, by suggesting that the very “existence of the UNION” is at stake. For further emphasis on the theme of imminent dissolution of the confederacy, see Nos. 5, 8, 15. On the danger of thirteen separate states, see Nos. 2–8, 25. On regional confederacies and “territorial disputes,” see No. 7. For Wilson on a land dispute between Connecticut and Pennsylvania over Wyoming district, see Elliot’s Debates, 2:528.
104. On the Atlantic as a defense, see Federalist Nos. 5, 8. On financing the navy, see No. 12. On taxes’ superiority to requisition, see Nos. 4, 15, 25. On the army, see No. 4.
105. On the need to deter Europeans, see ibid., Nos. 4, 5, 7. See also Nos. 16, 18, 19, 41, 85. On state violations of the treaty and British retention of forts, see Nos. 3, 15.
106. On relations with Europe, see ibid., No. 11. On interstate relations, see No. 12.
107. On trade wars, see ibid., Nos. 4, 6. William Shakespeare, Henry V, 4.3.60–67 (“We few, we happy few, we band of brothers; / For he to-day that sheds his blood with me / Shall be my brother; be he ne’er so vile, / This day shall gentle his condition; / And gentlemen in England, now a-bed / Shall think themselves accurs’d they were not here; / And hold their manhoods cheap whiles any speaks / That fought with us upon Saint Crispin’s day”). For similar brotherly language from Jay in a 1788 pamphlet, see “Address,” in Ford, Pamphlets, 86 (“people of America [should] remain … as a band of brothers”). For Wilson’s paraphrase of Jay’s Federalist No. 2 in the Pennsylvania debates, see DHRC, 2:346 (“while we consider the extent of the country, so intersected and almost surrounded with navigable rivers, so separated and detached from the rest of the world, it is natural to presume that Providence has designed us for an united people, under one great political compact”).
108. Ibid., No. 11, whose “nursery” image in turn built on Federalist No. 4.
109. On the economies of union, see Federalist Nos. 4, 13, 25.
110. Farrand’s Records, 1:463–65.
111. In Wilson’s words:
A number of separate states, contiguous in situation, unconnected and disunited in government, would be, at one time, the prey of foreign force, foreign influence, and foreign intrigue; at another, the victims of mutual rage, rancor, and revenge.… Would it be proper to divide the United States into two or more confederacies? … Animosities, and perhaps wars, would arise from assigning the extent, the limits, and the rights, of the different confederacies.… The danger resulting from foreign influence and mutual dissensions, would … be … great.…
[Under the Constitution, states] would not be exposed to the danger of competition on questions of territory, or any other that have heretofore disturbed them.… The several states cannot war with each other.… What a happy exchange for the disjointed, contentious state sovereignties! The adoption of this system will also secure us from danger, and procure us advantages from foreign nations.
Elliot’s Debates, 2:427–28, 527–28.
In Ellsworth’s words:
A union is necessary for the purposes of a national defence.… Witness England, which, when divided into separate states, was twice conquered by an inferior force.… A union, sir, is likewise necessary, considered with relation to economy.… We must unite, in order to preserve peace among ourselves. If we be divided, what is to prevent wars from breaking out among the states? … Union is necessary to preserve commutative justice between the states.… [Otherwise, the] European powers will … play the states off one against another.
Ibid., 185–86, 190.
In Randolph’s words:
Call to mind the history of every part of the world, where nations bordered on one another, and consider the consequences of our separation from the Union.… A numerous standing army, that dangerous expedient, would be necessary.… If you wish to know the extent of such a scene, look at the history of Scotland and England before the union; you will see their borderers continually committing depredations and cruelties of the most calamitous and deplorable nature, on one another.…
… I allude to the Scotch union. If gentlemen cast their eyes to that period, they will find there an instructive similitude between our circumstances and the situation of those people. The advocates for a union with England declared that it would be a foundation of lasting peace, remove all jealousies between them, increase their strength and riches, and enable them to resist more effectually the efforts of the Pretender. These were irresistible arguments.… and the predictions of the advocates for that union have been fully verified. The arguments used on that occasion apply with more cogency to our situation.…
We are next informed [by Patrick Henry] that there is no danger from the borders of Maryland and Pennsylvania, and that my observations upon the frontiers of England and Scotland are inapplicable. He distinguishes republican from monarchial borderers, and ascribes pacific meekness to the former, and barbarous ferocity to the latter. There is as much danger, sir, from republican borderers as from any other. History will show that as much barbarity and cruelty have been committed upon one another by republican borderers as by any other. We are borderers upon three states, two of which are ratifying states.…
Ibid., 3:75, 123, 197. See also ibid., 603 (“If, in this situation, we reject the Constitution, the Union will be dissolved, the dogs of war will break loose, and anarchy and discord will complete the ruin of this country”).
112. Also indispensable, in the eyes of many, was Virginia’s leading resident, George Washington, for whom the new constitutional presidency had been designed. If Virginia did not ratify, would Washington serve? Without Washington to set the right precedents and give the office proper ballast, could the new union be successfully launched? On Washington’s centrality, see Chapter 4, this page–this page.
113. See, e.g., Elliot’s Debates, 3:242 (George Nicholas) (“England, before it was united to Scotland, was almost constantly at war with that part of the island. The inhabitants of the north and south parts of the same island were more bitter enemies to one another than to the nations on the Continent. England and Scotland were more bitter enemies, before the union, than England and France have ever been, before or since. Their hatred and animosities were stimulated by the interference of other nations. Since the union, both countries have enjoyed domestic tranquillity, the greatest part of the time, and both countries have been greatly benefited by it. This is a convincing proof that union is necessary for America, and that partial confederacies would be productive of endless dissensions, and unceasing hostilities between the different parts”).
114. “Farewell Address,” in Richard B. Morris, ed., Great Presidential Decisions: State Papers that Changed the Course of History (rev. ed. 1967), 37–38 (“Every part of our country … must derive from union an exemption from those broils and wars between themselves which so frequently afflict neighboring countries not tied together by the same governments.… Likewise, they will avoid the necessity of those overgrown military establishments which, under any form of government, are inauspicious to liberty, and which are to be regarded as particularly hostile to republican liberty”). On Washington as a surveyor and strategist, see generally Edmund S. Morgan, The Genius of George Washington (1980), 7–8, 14–16, 18–19, 22–25, 60–63, 67–87; Morgan, Meaning of Independence, 41–52.
115. JCC, 1:105, 111 (Oct. 26, 1774) (emphasis deleted).
116. JCC, 1:112.
117. Patrick Henry put the point crisply: “The history of Switzerland clearly proves that we might be in amicable alliance with [other] states without adopting this Constitution. Switzerland is a confederacy.” Elliot’s Debates, 3:62. See also ibid., 142–43, 211 (Patrick Henry and James Monroe) (further elaborating the Swiss analogy). For a smattering of the many approving references to Switzerland in the Anti-Federalist literature, see, e.g., “Letters of Centinel (IV),” in Storing’s Anti-Fed., 2:163; “Essay of A Democratic Federalist,” in ibid., 3:62; “Essays by a [Maryland] Farmer (III, V),” in ibid., 5:30–31, 46–48.
118. For Ellsworth, see Elliot’s Debates, 2:188. For other discussions of Swiss geography and/or disharmony, see ibid., 3:69–70, 130–31, 235 (Randolph, Madison, and John Marshall).
119. JCC, 1:106.
120. For details, see Akhil Reed Amar, “Abraham Lincoln and the American Union,” U. of Illinois LR (2001): 1109, 1110–18.
1. On the word “Congress,” see Edward Dumbauld, The Constitution of the United States (1964), 52, 62; Jack N. Rakove, Original Meanings: Politics and Ideas in the Making of the Constitution (1996), 206.
2. See Chapter 5, n. 30. See also Rakove, Original Meanings, 206, 253; John C. Yoo, “Globalism and the Constitution: Treaties, Non-self-execution, and the Original Understanding,” Columbia LR 99 (1999): 1955, 2009–11.
3. Informally, various state legislatures would continue to claim authority to “instruct” their federal senators in the antebellum era. In turn, some senators at times felt honor-bound to resign if they refused to follow these supposed “instructions.” See generally William Riker, “The Senate and American Federalism,” APSR 49 (1955): 452.
4. In fact, however, few congressmen did seek extended reelection in the first century. See generally Jack N. Rakove, “The Structure of Politics at the Accession of George Washington,” in Richard Beeman et al., eds., Beyond Confederation: Origins of the Constitution and American National Identity (1987), 261–94; Nelson W. Polsby, “The Institutionalization of the U.S. House of Representatives,” APSR 62 (1968): 144–68; Morris P. Fiorina et al., “Historical Change in House Turnover,” in Norman Ornstein, ed., Congress in Change: Evolution and Reform (1975), 24–57; Douglas Price, “Careers and Committees in the American Congress: The Problem of Structural Change,” in William O. Aydelotte, ed., The History of Parliamentary Behavior (1977), 28–62.
5. Farrand’s Records, 2:666.
6. See generally Jackson Turner Main, “Government by the People: The American Revolution and the Democratization of the Legislatures,” WMQ 23 (1966): 391–407.
7. Federalist Nos. 48 (Madison) and 71 (Hamilton).
8. Ibid., Nos. 48 (Madison quoting Jefferson) and 51 (Madison).
9. Ibid., Nos. 48, 51.
10. For elaboration and qualification of this general presidential authority, see Chapter 5, this page–this page.
11. Farrand’s Records, 1:99 (Franklin), 486 (Madison). Mason echoed Franklin’s point. Ibid., 101. For more discussion of executive bargaining in the colonial era, see Forrest McDonald, The American Presidency: An Intellectual History (1994), 109–110.
12. We shall consider this special army rule in Chapter 3, this page. For now, it suffices to say the army exception proves the rule by establishing that the Constitution purposely avoided a global mandatory-expiration-date device.
13. The clever system faced a severe challenge whenever one branch deemed a given policy constitutionally impermissible while another branch viewed the policy as constitutionally mandatory.
14. For discussions of the importance of political honor at the Founding, see generally Douglass Adair, Fame and the Founding Fathers: Essays by Douglass Adair, Trevor Colbourn, ed. (1974); Joanne B. Freeman, Affairs of Honor: National Politics in the New Republic (2001).
15. See generally Bruce Ackerman, We the People: Foundations (1991), 230–322; Bruce Ackerman, “The New Separation of Powers,” Harvard LR 113 (2000): 633; Laura S. Fitzgerald, “Cadenced Power: The Kinetic Constitution,” Duke LJ 46 (1997): 679.
16. While Professor Morgan has parenthetically noted that “in Rhode Island and Connecticut [Confederation congressmen] were chosen at large by the voters,” Professor Rakove has written that “both Connecticut and Rhode Island permitted congressional delegates to be nominated by popular vote, but the state assemblies retained the right of election.” Edmund S. Morgan, Inventing the People: The Rise of Popular Sovereignty in England and America (1988), 264; Rakove, Original Meanings, 208. It would appear that the truth is somewhere in between: Rhode Island allowed voters to select congressmen (with the legislature authorized to fill vacancies), whereas Connecticut law allowed voters to nominate seven delegates from whom the legislature would then choose two to four to represent the state. Rhode Island General Assembly Laws (March 1777, 2d Session), 18; Charles J. Hoadly et al., eds., Public Records of the State of Connecticut (1894–), 2:264 (session of May 13, 1779); Richard Buel, Jr., Dear Liberty: Connecticut’s Mobilization for the Revolutionary War (1980), 213–15.
17. Morgan, Inventing the People, 264 (quoting Patrick Henry).
18. New Hampshire, Massachusetts, New Jersey, Maryland, North Carolina, South Carolina, and Georgia all fell into this category. In New York, state senators did not themselves face extra-high property qualifications, but those who elected them did. Adams, FAC, 315–27.
19. New York, North Carolina, and Maryland all had bicameral voter-qualification rules, and New York also limited its gubernatorial elections to a propertied subset of assembly voters. In most states, of course, governors were not directly elected by the citizenry, but were instead picked by (propertied) legislators. For details, see ibid., 318 (N.Y.), 322 (Md.), 324 (N.C.).
20. Other provisions of Article I seemed to envision federal bureaucracies to collect customs duties, deliver mail, and conduct censuses. Customs officials would likely confine themselves to port cities, and neither they nor postal officials would directly monitor state political functions. Census officials conducting decennial counts would likely be less intrusive than federal election officials overseeing biennial elections.
21. See generally Chilton Williamson, American Suffrage: From Property to Democracy, 1760–1860 (1960); Bernard Bailyn, The Origins of American Politics (1965), 30–31, 86–88; Adams, FAC, 315–27; Morgan, Inventing the People, 137, 146, 175; Alexander Keyssar, The Right to Vote: The Contested History of Democracy in the United States (2000), 7.
22. “No Person shall be a Representative who shall not have attained to the Age of twenty five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen.” U.S. Const., art. I, sec. 2, para. 2. “No Person shall be a Senator who shall not have attained to the Age of thirty Years, and been nine Years a Citizen of the United States, and who shall not, when elected, be an inhabitant of that State for which he shall be chosen.” Ibid., sec. 3, para. 3. On the exclusivity of these provisions, see generally Powell v. McCormack, 395 U.S. 496 (1969); U.S. Term Limits v. Thornton, 512 U.S. 1286 (1994). See also Federalist Nos. 52 and 60; Elliot’s Debates, 2:257 (Hamilton); Farrand’s Records, 2:249–50 (Madison).
23. In practice, some members of Commons found clever ways around its steep property qualifications. Even these techniques typically required the cooperation or patronage of some wealthy figures behind the scenes.
24. Md. Const. (1776), art. XXVII; N.H. Const. (1784), pt. II (unnumbered para. concerning “the delegates of this state to the Congress”).
25. New York and Pennsylvania were the only exceptions. See Adams, FAC, 315–27.
26. Unicameral Georgia also restricted membership in its assembly to propertied men. Ibid.
27. Mass. Const. (1780), pt. II, ch. I, sec. II, art. I; N.H. Const. (1784), pt. II (unnumbered para. beginning “There shall be annually elected …”); S.C. Const. (1778), art. XV.
28. See Farrand’s Records, 1:512–13, 533, 567, 581–82 (Morris); 428, 2:121 (Mason); 1:144, 529, 542, 562, 580–81 (Butler); 196, 534, 582 (Rutledge); 541, 562, 582, 595 (King); 596 (C. C. Pinckney); 542 (Davie); 560 (Williamson); 469–70 (Baldwin); 486, 562, 2:204 n. 17 (Madison). Gerry, who ultimately declined to sign the Constitution, favored legislative apportionment based on a “combined ratio of numbers of Inhabitants and of wealth, and not of either singly.” Ibid., 1:540–41. For more on Madison, see Rakove, Original Meanings, 41.
29. Farrand’s Records, 2:201–210.
30. Professor Rakove has argued that “the fact that the Convention could not simply promulgate a constitution on its own authority … had an immensely liberating effect on its deliberations.” Rakove, Original Meanings, 102. My account aims to stress the complementary chastening effect, drawing the eventual proposals toward the populist pole of the spectrum of opinion at Philadelphia.
31. Farrand’s Records, 2:248–51.
32. Ibid., 249. (On a more humorous note, Franklin added that “some of the greatest rogues he was ever acquainted with, were the richest rogues.”) Whereas Franklin made the republican point by looking to the future, several weeks earlier John Dickinson had reached a somewhat similar conclusion by reference to the classic republican traditions of antiquity. Arguing against “any recital of qualifications in the Constitution,” Dickinson “doubted the policy of interweaving into a Republican constitution a veneration for wealth. He had always understood that a veneration for poverty & virtue, were the objects of republican encouragement. It seemed improper that any man of merit should be subjected to disabilities in a Republic where merit was understood to form the great title to public trust, honors & rewards.” Ibid., 123. But see ibid., 1:150 (Dickinson “wished the Senate to consist of [men] distinguished for their rank in life and their weight of property, and bearing as strong a likeness to the British House of Lords as possible”).
33. For the Federalists, see Elliot’s Debates, 2:482 (Wilson) (emphasis deleted); Farrand’s Records, 2:210 (McHenry’s notes on Franklin), 3:146–47 (McHenry summarizing Franklin); Elliot’s Debates, 2:35–36, 51 (Sedgwick and King), 3:8–9, 395 (Nicholas and Madison); Federalist No. 57. See also Tench Coxe, “An Examination of the Constitution of the United States (IV),” in Ford, Pamphlets, 145 (“No qualification in monied or landed property is required by the proposed plan; nor does it admit any preference from the preposterous distinctions of birth and rank”). For Anti-Federalists criticizing the absence of property qualifications for congressmen, see Elliot’s Debates, 2:22 (Pierce); “Letters from the Federal Farmer (XII),” in Storing’s Anti-Fed., 2:294–95.
34. Farrand’s Records, 2:237, 268–69. For similar remarks by Ellsworth, Madison, and Franklin., see ibid., 235–38. In the First Congress, the nine immigrant Americans were Representatives Aedanus Burke, Thomas Fitzsimons, James Jackson, John Laurance, and Thomas Tudor Tucker, and Senators Pierce Butler, Samuel Johnston, Robert Morris, and William Paterson. The four signers in this group were Fitzsimons, Butler, Morris, and Paterson.
35. Ibid., 218. Modern historians have confirmed Mason’s critique of Parliament. According to Morgan, by the beginning of the seventeenth century, most members of Commons “were country gentlemen not actually resident in the boroughs that elected them.” Morgan, Inventing the People, 42.
36. See Coxe, “An Examination (II),” in Ford, Pamphlets, 141 (“No ambitious, undeserving or inexperienced youth can acquire a seat in this house [the Senate] by means of the most enormous wealth, or most powerful connections, till thirty years have ripened his abilities, and fully discovered [i.e., revealed] his merits to his country—a more rational ground of preference surely than mere property”). In his next essay (III), Coxe linked the twenty-five-year age limit in the House to a republican desire to limit undue advantages of those with “wealth” and “powerful connections.” Ibid., 143–44. For more background on the egalitarian dimension of age rules, see Holly Brewer, By Birth or Consent: Children, Law, and the Anglo-American Revolution in Authority (2005).
37. On Congress as a possible springboard for future offices and honors, see generally David R. Mayhew, America’s Congress: Actions in the Public Sphere, James Madison Through Newt Gingrich (2000), 129–67. The eight early senatorial youngsters who did not go on to be presidents or runners-up were Thomas Worthington, John Rutherfurd, William Hill Wells, Samuel White, James Ross, David Stone, Richard Stockton, and Ray Greene. Zachary Taylor was the sole antebellum president never to have served in Congress. (For this tally, I have included membership in the Continental and/or Confederation Congress; Mayhew does the same, ibid., 159 & n. 40.) Among the favorite sons who went on to become president in antebellum America, Harrison and Tyler were both sons of Virginia governors; Pierce was the son of New Hampshire’s governor, and of course John Quincy Adams was the son of President John Adams.
As for state constitutions, while no state lower house had age requirements beyond those for voters, four states did require their upper-house members to be elder statesmen of sorts—Delaware, Maryland, and Virginia set the age bar at 25, and South Carolina did so at 30. Also, North Carolina required its governor to be at least 30.
38. Of the dozen youngest men to reach the Senate in this decade, Rhode Island’s Ray Greene was the son of the state’s ex-governor William Greene, Jr. (who was in turn the son of colonial Governor William Greene); Virginia’s Stevens Thomson Mason was the son of Thomson Mason, one of the state’s handful of top judges, who was in turn the younger brother of George Mason, author of the state bill of rights and also a Philadelphia framer; New Jersey’s Richard Stockton was the son and namesake of one of the signers of the Declaration of Independence, the younger brother-in-law of another signer, Benjamin Rush, and the nephew (on both sides) of Elias Boudinot, a member of the Continental Congress and, later, the federal House; Virginia’s James Monroe was the nephew of Joseph Jones, a member of the Continental Congress who had also served in high state judicial office; and New York’s Rufus King was the son-in-law of Continental Congressman John Alsop.
Of the seventy older senators, Virginia’s John Taylor (age 38 when he came to the Senate) was orphaned in boyhood and thereafter raised by his uncle Edmund Pendleton, a Continental congressman, speaker of the state house of delegates, president of the state supreme court of appeals, and president of the Virginia ratifying convention; Connecticut’s James Hillhouse (42) was the son of Confederation Congressman William Hillhouse and the nephew of Governor Matthew Griswold; New Jersey’s Franklin Davenport (43) was Benjamin Franklin’s nephew; Rhode Island’s Theodore Foster (48) was the son-in-law of Governor Arthur Fenner, Jr.; South Carolina’s Ralph Izard (48 or 49) was the grandson of the first Crown-appointed governor, Robert Johnson; Delaware’s Philemon Dickinson (51) was the younger brother (by seven years) of John Dickinson, a Continental congressman, state president, and Philadelphia framer; Georgia’s George Walton (53 or 54) was the younger brother (by about twelve years) of Continental Congressmen John Walton; Connecticut’s Jonathan Trumbull, Jr. (55) was the son and namesake of the state’s first and long-serving governor, and the younger brother (by three years) of Joseph Trumbull, who had been elected to the Continental Congress but did not serve; North Carolina’s Samuel Johnston (55) was the nephew of a colonial governor, Gabriel Johnston; and Virginia’s Richard Henry Lee (57) was the son of Thomas Lee, longstanding president of the colonial council and briefly its royal governor. (Also, Richard Henry’s younger brother, Francis Lightfoot Lee, was a signer of the Declaration of Independence, as of course was Richard Henry himself. Yet another younger brother, Arthur Corbin Lee, had served in the Confederation Congress.)
My tally omits several relations that ill fit the “favorite son” metaphor. For example, William Blount (47) was the older brother (by ten years) of Representative Thomas Blount; New Hampshire’s John Langdon (47) was, as a state president and signer of the Constitution, more prominent than his brother, Woodbury, who was two years older but had followed John as a Continental congressman (and also served briefly on the state supreme court); and Delaware’s Joshua Clayton (53) was married to the adopted daughter of ex-senator and future governor Richard Bassett, but Clayton was in fact a year older than Bassett, and had already served as the state’s last president and first governor. Other early senators were the scions of famous families, but not of famous political officeholders. Most notably, Aaron Burr (35) comes to mind—the son and namesake of Princeton University’s president, and the grandson of the great theologian Jonathan Edwards.
Of the thirty-seven men who reached the House before the age of 32, thirteen were sons, sons-in-law, nephews (by blood or marriage), and/or younger brothers of leading statesmen: Tennessee’s William Charles Cole Claiborne (21 or 22), Maryland’s Richard Sprigg, Jr. (26 or 27), Virginia’s Francis Preston (28), Richard Bland Lee (28), and Francis Walker (29), Delaware’s James Asheton Bayard, Sr. (29), South Carolina’s John Rutledge, Jr. (30 or 31) and William Loughton Smith (30 or 31), Massachusetts’s Harrison Gray Otis (31), New Jersey’s Jonathan Dayton (31), New York’s Edward Livingston (31) and Hezekiah Lord Hosmer (31), and Kentucky’s Alexander Dalrymple Orr (31).
Of the remaining 218 House members, I have found only 22 with comparable family ties to elder statesmen: John Francis Mercer (32), Roger Griswold (33), Nicholas Gilman (33), Thomas Blount (34), Dwight Foster (35), Chauncy Goodrich (36), Lewis Richard Morris (36), Carter Bassett Harrison (36 or 37), James Hillhouse (37), Richard Brent (37 or 38), John Laurance (38 or 39), Frederick Augustus Conrad Muhlenberg (39), Richard Dobbs Spaight (40), John Baptista Ashe (41 or 42), Michael Jenifer Stone (41 or 42), James Armstrong (45), Joseph Bradley Varnum (44 or 45), Matthew Lyon (46), Thomas Pinckney (47), Elias Boudinot (48—brother-in-law), Jonathan Trumbull, Jr. (48), and Samuel Maclay (54). Remarkably, only one of the fifty-plus men who reached the House at age 50 or above was a favorite son/nephew/younger brother, so far as I have been able to determine.
The biographical information presented in this note is based solely on the Dictionary of American Biography, the Biographical Directory of the American Congress, and the “Political Graveyard” website. These sources are doubtless incomplete, but there is no reason to think that omissions are biased along the age axis.
39. The Pennsylvania and Maryland Constitutions adopted a different approach in the shadow of Wilkes, allowing expulsion upon a simple majority vote, but prohibiting a second expulsion on the same grounds in the event voters decided to return the expelled man to the house. See Pa. Const. (1776), sec. 9; Md. Const. (1776), art. X. On Wilkes and what he meant to American patriots, see generally Pauline Maier, From Resistance to Revolution: Colonial Radicals and the Development of American Opposition to Britain, 1765–1776 (1972), 162–69; Powell v. McCormack, 395 U.S. 527–31. See also Raymond William Postgate, That Devil Wilkes (1929); George F. E. Rudé, Wilkes and Liberty: A Social Study of 1763 to 1774 (1962).
40. Morgan, Inventing the People, 176.
41. See Jack N. Rakove, The Beginnings of National Politics (1979), 216–39.
42. Gordon S. Wood, The Radicalism of the American Revolution (1991), 292. For further discussion of the egalitarian significance of legislative salary, see Rakove, “The Structure of Politics,” 262, 270; Rakove, Original Meanings, 226.
43. Farrand’s Records, 1:372 (Gorham), 2:291 (Broom); Elliot’s Debates, 2:52–53 (Taylor and Sedgwick); Story, Commentaries, 2:318–19, sec. 849; J. R. Pole, Political Representation in England and the Origins of the American Republic (1966), 285–86.
44. Pa. Const. (1776), sec. 17; Mass. Const. (1780), pt. II, ch. I, sec. III, art. II, para. 4; N.H. Const. (1784), pt. II (unnumbered para. beginning “The travel of each representative …”). In Revolutionary Maryland, the highly propertied senate on several occasions resisted efforts by lower-house delegates to increase the delegates’ per diem allowance. See Jackson Turner Main, The Upper House in Revolutionary America, 1763–1788 (1967), 112–13.
45. Pole, Political Representation, 51, 286. See also Morgan, Inventing the People, 160. In 1811, Massachusetts began to pay house members state salaries; see Allan Nevins, The American States During and After the Revolution, 1775–1789 (1924), 182. Cf. Story, Commentaries, 2:318–19, sec. 849.
46. Cf. Farrand’s Records, 1:374 n. *.
47. Ibid., 215–16 (Mason), 377 (Randolph), 372 (Williamson), 373 (Madison), 426–27 (C. C. Pinckney), 513 (Morris). See also ibid., 219 (Butler and Rutledge arguing against the payment of senators). Note that even Hamilton—hardly a doctrinaire democrat behind closed doors (or anywhere else)—played the equality card, noting that “payment by the States would be unequal as the distant States would have to pay for the same term of attendance and more days in travelling to & from the seat of the Govt.” Ibid., 373. For a similar view, see ibid., 2:290 (Morris).
48. Ibid., 2:291 (Sherman); Elliot’s Debates, 3:368–74, 372 (Madison).
49. Farrand’s Records, 1:216, 374.
50. Bailyn, Origins, 67–68.
51. Gordon S. Wood, The Creation of the American Republic, 1776–1787 (1969), 166; Nevins, American States, 18.
52. Ibid., 166; Marc W. Kruman, Between Authority and Liberty: State Constitution Making in Revolutionary America (1997), 81–86.
53. On the two-year House term, see Federalist No. 53; Elliot’s Debates, 2:10 (Ames), 533 (McKean), 4:29 (Maclaine). According to Madison, “One year will be almost consumed in preparing for and traveling to & from the seat of national business.” Farrand’s Records, 1:214. For related Madisonian musings, see ibid., 361, 422. For discussion of the Senate’s six-year term, see Federalist Nos. 53, 62–64; Elliot’s Debates, 2:25 (Cabot), 45–48 (Ames and King), 291 (R. R. Livingston), 302, 306–7 (Hamilton), 533 (McKean), 4:41 (Iredell); “Letters of Fabius by John Dickinson (II),” in Ford, Pamphlets, 170–71. See also Chapter 4, this page–this page.
54. Farrand’s Records, 1:361 (Madison).
55. See also Elliot’s Debates, 2:227 (Smith), 3:33 (Mason).
56. Ibid., 2:38 (Dana); cf. Federalist No. 84 (noting that the new Congress would “consist of … the same number of which Congress, under the existing Confederation, may be composed” but mistakenly referring to this number as sixty-five rather than ninety-one). See generally Morgan, Inventing the People, 275.
57. See Frederick W. Marks III, Independence on Trial: Foreign Affairs and the Making of the Constitution (1973), 128–29; Richard B. Morris, The Forging of the Union, 1781–1789 (1987), 1, 91–93, 97–98; McDonald, American Presidency, 143–45, 194. In the canonical book on the Confederation Congress, the index entry for “decrease in attendance, thin, no quorum” under the heading of the “Continental Congress” features references to more than forty pages. Edmund Cody Burnett, The Continental Congress (1941), 732.
58. JCC, 34:vii. From the end of October 1785 through April 1786—a six-month span—there were only three days when nine proper state delegations showed up on the floor. Burnett, Continental Congress, 647.
59. Elliot’s Debates, 4:280 (C. C. Pinckney).
60. See generally Main, “Government by the People,” 391–407; Jackson Turner Main, The Sovereign States, 1775–1783 (1973), 202; Wood, Creation, 167.
61. Federalist No. 55; Elliot’s Debates, 3:97 (Nicholas). The Carolinas’ assemblies were even larger than Virginia’s.
62. Morgan, Inventing the People, 275.
63. Elliot’s Debates, 3:281 (Grayson); “Essays of Brutus (III),” in Storing’s Anti-Fed., 2:381–82.
64. See Akhil Reed Amar, The Bill of Rights: Creation and Reconstruction (1998), 10–14 and sources cited in accompanying endnotes. See also Elliot’s Debates, 2:36 (Taylor). Referring to the clause concerning House size, Madison/Publius began Federalist No. 55 by acknowledging that “scarce any article, indeed, in the whole Constitution seems to be rendered more worthy of attention, by the weight of character and the apparent force of argument with which it has been assailed.”
65. Farrand’s Records, 1:569 (Gerry); Elliot’s Debates, 2:228–29, 248–49 (M. Smith), 3:262–63 (Mason), 281 (Grayson).
66. Ibid., 2:246–47 (M. Smith); “Letters from the Federal Farmer (III),” in Storing’s Anti-Fed., 2:235; “Essays of Brutus (IV),” in ibid., 2:386; “Essay by Cornelius,” in ibid., 4:143. See generally Rakove, Original Meanings, 232.
67. See Elliot’s Debates, 2:243–51 (M. Smith), 473–74 (Wilson), 3:32–33, 262, 266–67 (Mason), 322 (Henry), 426 (Mason); “Essays of Brutus (III),” in Storing’s Anti-Fed., 2:377–82. For additional sources, see Amar, Bill of Rights, 316 n. 29.
68. Del. Const. (1776), Declaration of Rights, sec. 6; Md. Const. (1776), Declaration of Rights, art. V; John Adams, “Thoughts on Government: Applicable to the Present State of the American Colonies (1776),” in Michael Kammen, ed., Deputyes & Libertyes: The Origins of Representative Government in Colonial America (1969), 199, 200. See also Farrand’s Records, 1:48–49 (Mason, describing the lower house as “the grand depository of the democratic principle of the Govt.”); “Essays of Brutus (III),” in Storing’s Anti-Fed., 2:379–82 (referring to “that branch of the legislature, which is called the democratic” and to the “democratic branch of the legislatures of the several states” and arguing that representatives “should resemble those who appoint them”).
69. Edmund S. Morgan, The Meaning of Independence (1976), 40; Morris, Forging, 91, 93; Rakove, “The Structure of Politics,” 261–63.
70. Baldwin, Carroll, Clymer, Fitzsimons, Gerry, Gilman, Madison, Sherman, and Williamson served in the first House; Bassett, Butler, Ellsworth, Few, Johnson, King, Langdon, Robert Morris, Paterson, Read, and Strong served in the Senate.
71. Farrand’s Records, 1:568–69 (Madison), 2:553–54 (Hamilton).
72. Ibid., 554. New York cast no vote. For additional evidence linking the issue of size to travel distance, see ibid., 1:569 (Sherman); Elliot’s Debates, 2:273–74 (Hamilton).
73. Farrand’s Records, 2:644.
74. One of the thirty-nine acted by proxy. Absent on the Convention’s last day, John Dickinson authorized fellow delegate George Read to sign in his place. Ibid., 3:587. If Dickinson thus pledged without penning, William Blount did just the reverse, signing to “attest” the Convention’s actions while telling fellow delegates that he did not thereby pledge to support the plan back home. Ibid., 2:646. In fact, Blount did end up backing the plan publicly.
75. Ibid., 2:638 (Mason). For other objectors to the number sixty-five, see “Essays of Brutus (III),” in Storing’s Anti-Fed., 2:377–82; and the sources cited in Amar, Bill of Rights, 10–14 and accompanying endnotes.
76. Federalist Nos. 55–58; Elliot’s Debates, 2:534 (McKean); Farrand’s Records, 3:260 (Strong); Elliot’s Debates 3:11–12 (Nicholas), 2:238–39, 251–53 (Hamilton). Strong’s fellow Philadelphian Nathaniel Gorham projected farther into the future, predicting 360 members “in fifty years,” while Judge Dana predicted a more modest increase “soon.” Ibid., 2:37–38. Note that the “take it for granted” language is a dead giveaway that Nicholas was cribbing from Federalist No. 55. See also Elliot’s Debates, 2:270–71 (Harrison) (Article I “contemplates and secures a regular increase of the representation”); Coxe, “An Examination of the Constitution (III),” in Ford, Pamphlets, 143 (“When the increasing population of the country shall render the body too large at the rate of one member for every thirty thousand persons, they will be returned at the greater rate of one for every forty or fifty thousand”).
77. Elliot’s Debates, 2:243 (M. Smith).
78. Ibid., 251–52.
79. Ibid., 1:322 (Mass.), 326 (N.H.), 329 (N.Y.), 3:659 (Va.), 4:244 (N.C.). For more discussion, see Amar, Bill of Rights, 14.
80. 1 Stat. 97.
81. For the precise figures, see Story, Commentaries, 2:136, sec. 669.
82. Pa. Const. (1776), sec. 13; N.Y. Const. (1777), art. XV. On publicity more generally, see Adams, FAC, 247–49; Kruman, Between Authority, 81; Daniel N. Hoffman, Governmental Secrecy and the Founding Fathers: A Study in Constitutional Controls (1981), 12–20.
83. For praise of this clause, see Coxe, “An Examination (III),” in Ford, Pamphlets, 144. Several state constitutions—Virginia’s, for example—lacked comparable guarantees. See Elliot’s Debates, 3:202 (Randolph).
84. Coxe, “An Examination (II),” in Ford, Pamphlets, 140, 142.
85. See generally Hoffman, Governmental Secrecy, 47–88.
86. Farrand’s Records, 1:569 (Ellsworth), 260 (Strong); Elliot’s Debates, 2:10, 45–46 (Ames), 265–66 (Hamilton), 283 (Jay), 3:229–230 (Marshall); Federalist No. 56; “Letters of Fabius,” in Ford, Pamphlets, 170; “Letters of a Landholder (IV),” in Ford, Essays, 152.
87. Federalist No. 56; Wood, Creation, 170; Rosemarie Zagarri, The Politics of Size: Representation in the United States, 1776–1850 (1987), 37.
88. Bailyn, Origins, 81; Morgan, Inventing the People, 146.
89. Bailyn, Origins, 83; Pauline Maier, American Scripture: Making the Declaration of Independence (1997), 113; Zagarri, Politics of Size, 43; Kruman, Between Authority, 65, 73; Nevins, American States, 19–20.
90. On the imperfect shift toward proportionality, see generally Pole, Political Representation, 172–89, 198–204, 260–77, 314–38, 526–39 (esp. 262–65, 274–76, 315–21, 535–36); Zagarri, Politics of Size, 36–60; Adams, FAC, 228–43; Kruman, Beyond Authority, 65–76. On South Carolina’s notorious malapportionment, see Nevins, American States, 1, 96, 133, 174, 192, 200–1; Jackson Turner Main, The Antifederalists: Critics of the Constitution, 1781–1788 (1961), 22–23.
91. Pa. Const. (1776), sec. 17; N.Y. Const. (1777), arts. V, XVI.
92. My assessment of Senate apportionment thus differs from Professor Rakove’s, as I elaborate in n. 110 below.
93. Farrand’s Records, 1:534, 578–79 (Mason), 533, 583 (Morris), 584 (Madison), 605 (Wilson).
94. See Elliot’s Debates, 2:27 (Parsons), 49 (Dana), 51 (King), 3:367 (Madison), 4:71–72 (Steele); Farrand’s Records, 2:241. Note that Tench Coxe did assume the existence of equipopulous districts and assured his readers that “no decayed or venal borough” such as “old Sarum” would exist. Coxe, “An Examination (III, IV),” in Ford, Pamphlets, 143, 153 n. *. In 1964, the Warren Court, per Justice Black, held that the Constitution required equipopulous congressional districts within a state, and that federal courts could properly enforce this constitutional mandate. See Wesberry v. Sanders, 376 U.S. 1 (1964). Though the Court based this decision solely on the language of Article I—House members must be chosen by “the People of the several States”—such a reading is hard to defend on the basis of Founding-era sources and understandings, as the second Justice Harlan’s dissenting opinion made clear. As we shall see in Chapter 10, a more defensible basis for the modern Court’s result in Wesberry involves the reconstruction of Founding-era apportionment rules and understandings in the Fourteenth Amendment.
95. Farrand’s Records, 1:132–33 (Wilson, who also said that representation was necessary “only because it is impossible for the people to act collectively”), 561 (Paterson), 562 (Madison, who said that representatives “ought to vote in the same proportion in which their citizens would do, if the people of all the States were collectively met”).
96. On euphemism regarding the proslavery clauses, see ibid., 588 n. * (Carroll), 595 (Wilson), 2:415–16 (Mason and Morris), 3:210 (Martin); Elliot’s Debates, 4:102, 176 (Iredell).
97. Farrand’s Records, 1:201 (Gerry), 561 (Paterson), 2:220 (King), 221–23 (Morris and Dayton).
98. See, e.g., Joel Tiffany, A Treatise on the Unconstitutionality of American Slavery (1849, reprint, 1969), 62–63; Frederick Douglass, “Glasgow Speech, Mar. 26, 1860,” in Philip S. Foner, ed., The Life and Writings of Frederick Douglass (1950), 2:467–80. See generally William M. Wiecek, The Sources of Anti-slavery Constitutionalism in America, 1760–1848 (1977), 273; Don E. Fehrenbacher, The Slaveholding Republic: An Account of the United States Government’s Relations to Slavery (2001), 299.
99. Raymond T. Diamond, “No Call to Glory: Thurgood Marshall’s Thesis on the Intent of a Pro-Slavery Constitution,” Vanderbilt LR 42 (1989): 93, 112–13.
100. Farrand’s Records, 2:222 (Morris). See also ibid., 1:561 (Paterson), 588 (Morris), 2:220 (King), 364, 3:211 (Luther Martin); “Essays of Brutus (III),” in Storing’s Anti-Fed., 2:379; Elliot’s Debates, 2:226–27 (Melancton Smith).
101. Virginia’s numbers do not include Kentucky, which was admitted as a separate state in mid-1792—before the general House expansion pursuant to the first census.
102. Fehrenbacher, Slaveholding Republic, 40. For earlier scholarship emphasizing the proslavery aspects of the three-fifths clause, see generally Donald L. Robinson, Slavery in the Structure of American Politics, 1765–1820 (1971); Wiecek, Sources of Antislavery, 62–83; William M. Wiecek, “The Witch at the Christening: Slavery and the Constitution’s Origins,” in Levy and Mahoney, eds., Framing, 167–84; Paul Finkelman, “Slavery and the Constitutional Convention: Making a Covenant with Death,” in Beeman et al., eds., Beyond Confederation, 188–225; Diamond, “No Call to Glory,” 93. For an effort to play down the significance of slavery in this clause, see Howard A. Ohline, “Republicanism and Slavery: Origins of the Three-Fifths Clause in the United States Constitution,” WMQ 28 (1971): 563.
103. Farrand’s Records, 2:222 (Morris); Elliot’s Debates, 4:283 (C. C. Pinckney). Cf. ibid., 31 (Davie).
104. To be specific, Georgia and Kentucky would each have lost one of their two seats; Maryland two of its eight, North Carolina two of its ten; South Carolina, two of its six; and Virginia six of its nineteen. On the other side of the Mason-Dixon Line, New York’s inability to count her twenty thousand slaves (at three-fifths) would have dropped her from ten to nine seats.
105. See, e.g., Farrand’s Records, 1:500 (Bedford), 561 (Morris), 578 (Mason), 584–86 (Madison), 595 (King), 604–5 (Morris), 2:9–10 (Madison), 3:187 (Martin); Elliot’s Debates, 3:102, 347, 359 (Nicholas), 4:276–77 (Rutledge), 283 (C. C. Pinckney), 5:108 (Madison’s letter to Randolph, April 8, 1787); David Ramsay, “An Address to the Freemen of South Carolina on the Subject of the Federal Constitution,” in Ford, Pamphlets, 375; Annals, 1:899 (Madison, Sept. 4, 1789). Cf. Farrand’s Records, 3:501 (Grayson). See generally Staughton Lynd, “The Compromise of 1787,” Political Science Qtly. 81 (1966): 225–50; Drew R. McCoy, “James Madison and Visions of American Nationality in the Confederation Period: A Regional Perspective,” in Beeman et al., eds., Beyond Confederation, 226–58.
106. See Wiecek, Sources of Antislavery, 144–48.
107. The data here are all drawn from Stanley B. Parsons, William W. Beach, and Dan Hermann, comps., United States Congressional Districts, 1788–1841 (1978). For a powerful analysis of regional variation within the antebellum South, see William W. Freehling, The Road to Disunion: Secessionists at Bay, 1776–1854 (1990). See also Virginia Const. (1830), art. III, sec. 6 (apportioning state congressional districts via three-fifths formula).
108. Merrill D. Peterson, ed., Democracy, Liberty, and Property: The State Constitutional Conventions of the 1820’s (1966), 277, 324–25 (discussing arguments of Benjamin Watkins Leigh and quoting arguments of Abel P. Upshur at the Virginia convention of 1829–30); Proceedings and Debates of the Virginia State Convention of 1829–1830 (1830; reprint 1971), 1:75, 115, 126–27, 163–64 (Upshur, Morris, Scott, and Leigh).
109. For states counting slaves at three-fifths, see N.C. Const. (1776), amend. art. 1, sec. 1, para. 2 (1835) (house of commons proportioned by “Federal population”—that is, the three-fifths formula); Md. Const. (1776), amend. sec. 10 (1837) (house of delegates based on “federal numbers”); Fla. Const. (1838/45), art. IX, secs. 1–2 (both houses). For states counting slaves at five-fifths, see La. Const. (1845), title II, art. 15 (Senate); La. Const. (1852), title II, arts. 8, 15 (both house and senate); Md. Const. (1851), art. III, sec. 3 (house of delegates).
110. Professor Rakove thus oversimplifies when he argues that it “was not, after all, the three-fifths clause that gave southern states the leverage they needed to keep the Union safe for slavery, but rather the Senate.” Original Meanings, 93. This false dichotomy overlooks various ways in which the three-fifths clause itself fed back into the antebellum Senate’s composition, via the clause’s indirect effects on slave-state legislative apportionment and slave-state abolition policy. (Remember, any slave state that pursued a policy of abolition plus emigration would end up losing House seats. Slave states thus faced actual disincentives to become free states.) And, as Garry Wills has shown, the three-fifths clause powerfully influenced presidential elections and presidential territorial policies—policies that in turn surely helped shape the long-run composition of the Senate. Additionally, Wills points to certain proslavery congressional policies—including the 1840 gag rule and the 1854 Kansas-Nebraska Act—where the three-fifths skew in the House proved decisive. Garry Wills, “Negro President”: Jefferson and the Slave Power (2003), 219–20, 225.
It also bears emphasis that when the Constitution was adopted, Senate equality was generally thought to favor New England, given the strong expectation that population would flow southward in the years ahead—an expectation that Rakove himself stresses. Original Meanings, 54, 72, 77, 91. Thus, Rakove’s point about the Senate as it came to operate in the early-to-mid-1800s is best understood as one of history’s many ironies, rather than as a serious argument that in the 1780s, Senate equality was somehow more predictably vicious than the three-fifths clause. On the Senate as a proslavery institution in the late antebellum era, see Barry R. Weingast, “Political Stability and Civil War: Institutions, Commitment, and American Democracy,” in Robert H. Bates et al., Analytic Narratives (1998), 148–93.
111. Fehrenbacher, Slaveholding Republic, 47. For Fehrenbacher’s magisterial account of slavocracy in the Taney era, see Don E. Fehrenbacher, The Dred Scott Case: Its Significance in American Law and Politics (1978).
1. Blackstone’s Comm., 1: *166–67. For subsequent judicial discussion, see Williamson v. United States, 207 U.S. 425, 436–46 (1908); Gravel v. United States, 408 U.S. 606, 614 (1972). For analysis of Williamson’s reliance on Blackstone’s treatise, whose language changed as new editions came out in the late 1760s through the early 1780s, see Akhil Reed Amar and Neal Kumar Katyal, “Executive Privileges and Immunities: The Nixon and Clinton Cases,” Harvard LR 108 (1995): 701, 710 & n. 43.
2. Thomas Jefferson, A Manual of Parliamentary Practice (2d ed. 1812), sec. III, reprinted in Wilbur Samuel Howell, ed., Jefferson’s Parliamentary Writings: “Parliamentary Pocket-Book” and A Manual of Parliamentary Practice (1988), 360. See also Story, Commentaries, 2:325–28, secs. 856–62.
3. 1 W. & M., ch. 2, sec. 9 (1689); Articles of Confederation, art. V, cl. 5. Mass. Const. (1780), pt. I, art. XXI; N.H. Const. (1784), pt. I, art. XXX; Vt. Const. (1786), ch. 1, art. XVI. For an engaging general discussion, see Zachariah Chafee, Three Human Rights in the Constitution (1956), 4–89.
4. Wilson, Works, 1:421.
5. See Leonard W. Levy, Emergence of a Free Press (1985), 14–15.
6. See, for example, statements from Noah Webster, Ellsworth, Hamilton, Wilson, Randolph, Hugh Williamson, Richard Dobbs Spaight, Iredell, and the two Pinckneys, cited in Akhil Reed Amar, The Bill of Rights: Creation and Reconstruction (1998), 326 n. 78.
7. Annals, 1:453–54 (June 8, 1789), 4:934 (Nov. 26, 1794).
8. Elliot’s Debates, 4:569, 575–76.
9. See New York Times v. Sullivan, 376 U.S. 254, 273–76, 282–83 (1965). For scholarly commentary on the Sullivan case, and/or on the conceptual interlinkage between the Constitution’s two speech clauses, see Alexander Meiklejohn, Political Freedom: The Constitutional Powers of the People (1960), 34–36; Alexander Meiklejohn, “The First Amendment is an Absolute,” Supreme Court Rev. (1961): 245, 256; Harry Kalvin, Jr., “The New York Times Case: A Note on ‘The Central Meaning of the First Amendment,’ ” Supreme Court Rev. (1964): 91.
10. Blackstone’s Comm., 1:*164–66.
11. Resolutions of the Continental Congress, October 14, 1774, JCC, 1:69; Allan Nevins, The American States During and After the Revolution, 1775–1789 (1924), 62–63, 85; Edmund S. Morgan, The Challenge of the American Revolution (1976), 3–42, esp. 23–25; Jack P. Greene, “Origins of the American Revolution,” in Leonard W. Levy and Dennis J. Mahoney, eds., The Framing and Ratification of the Constitution (1987), 36–53.
12. 6 Geo. 3, ch. 12 (emphasis added).
13. For the financial details of 1781, I have relied on Leonard W. Levy, “Introduction: American Constitutional History, 1776–1789,” in Levy and Mahoney, eds., Framing, 7. A rather less dire view of Confederation finances is presented in Merrill Jensen, The New Nation (1950). In 1786, New York sank a proposed amendment to the Articles of Confederation that would have allowed the union to levy an impost on certain items. For evidence and analysis suggesting that this rejection operated as a major factor precipitating the Philadelphia Convention, see Robert A. Feer, “Shays’s Rebellion and the Constitution,” New England Qtly. 42 (1969): 388, 390, 397, 398, 401, 402, 409, 410. See also E. James Ferguson, “What Were the Sources of the Constitutional Convention?” in Gordon S. Wood, ed., The Confederation and the Constitution (1979), 12; Jack N. Rakove, “The Road to Philadelphia, 1781–1787,” in Levy and Mahoney, eds., Framing, 107.
14. Cf. Frederick W. Marks III, Independence on Trial: Foreign Affairs and the Making of the Constitution (1973), 45 (“the international law of this time regarded consistent failure to pay debts as a just cause for armed intervention by the creditor nation”).
15. See, e.g., United States v. Lopez, 514 U.S. 549 (1995); United States v. Morrison, 529 U.S. 598 (2000). For a particularly narrow view of congressional power under this clause, see Lopez, 514 U.S. 584–602 (Thomas, J., concurring). For prior scholarship generally supportive of the Thomas approach, see Richard A. Epstein, “The Proper Scope of the Commerce Power,” Virginia LR 73 (1987): 1387; Raoul Berger, “Judicial Manipulation of the Commerce Clause,” Texas LR 74 (1996): 695. For a somewhat broader view that nevertheless insists that the clause applies only to interstate economic matters, see Grant S. Nelson and Robert J. Pushaw, “Rethinking the Commerce Clause: Applying First Principles to Uphold Federal Commercial Regulation but Preserve State Control Over Social Issues,” Iowa LR 85 (1999): 1. None of these interpretations comes to grips with the basic inadequacy of a purely economic reading of “commerce” in relation to Indian tribes.
16. OED entry on “commerce.” Note that my textual argument here is not that “Commerce” must be read to apply beyond economic matters, but only that it may properly be read this way, if constitutional context and structure so warrant.
17. Farrand’s Records, 2:321, 493.
18. Imagine, for example, a situation in which one state’s regulation of upstream land created adverse effects for residents of downstream states. Federal power over admiralty jurisdiction would not necessarily cover such a case if the stream were non-navigable. On the international front, imagine a transnational incident that called for a domestic federal-law solution as distinct from an international agreement, compact, or treaty.
19. If a broad interpretation of “Commerce” were rejected, a similar result could be reached, albeit more roundaboutly, by reading Article I’s necessary-and-proper clause in tandem with Article III’s diversity clauses. Under Article III, section 2, federal judicial power permissibly extended to any controversy, whether or not economic, between the governments and/or citizens of diverse states, and between Americans and foreigners. Just as the necessary-and-proper clause has been read to allow Congress to enact substantive federal laws to govern all Article III admiralty proceedings, so, too, this clause could be read to allow Congress to legislate whenever an altercation spilled across state or national lines—whenever, in Article III’s phrasing, a “Controvers[y]” arose “between” interstate or international parties. For analysis of the Article III admiralty clause as a font of congressional power, see Note, “From Judicial Grant to Legislative Power: The Admiralty Clause in the Nineteenth Century,” Harvard LR 67 (1954): 1214. Although Article III’s diversity clauses differed from its admiralty provisions in some respects—see, e.g., Henry J. Friendly, “In Praise of Erie, and of the New Federal Common Law,” N.Y.U. LR 39 (1964): 383—these clauses could likewise be read to permit Congress to step in whenever states cannot agree amongst themselves and/or foreigners are involved.
20. Farrand’s Records, 1:164 (C. C. Pinckney and Madison), 172 (Wilson).
21. Ibid., 165.
22. See Federalists Nos. 33, 44; Elliot’s Debates, 2:537–38 (McKean).
23. McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 408, 407 (1819). As Washington’s biographer, Marshall was acutely aware that the lack of funds during the Revolution had imperiled the war effort both by increasing the risk of outright British success on the battlefield and also by making the continental army more vulnerable to desertion and mutiny.
24. For a thoughtful analysis, see William W. Van Alstyne, “The Role of Congress in Determining Incidental Powers of the President and of the Federal Courts: A Comment on the Horizontal Effect of the Sweeping Clause,” Law & Contemporary Problems 40 (Spring 1976): 102.
25. Blackstone’s Comm., 1:*267; compare Bernard Bailyn, The Origins of American Politics (1968), 25, 69; Forrest McDonald, The American Presidency: An Intellectual History (1994), 106–7.
26. See Blackstone’s Comm., 1:*273, *275–76, *277–79, 2:*405–7, 4:*159.
27. Nevins, American States, 19. On the traditional right of English monarchs to fix the legislative meeting place, see Edward Dumbauld, The Constitution of the United States (1964), 96.
28. McCulloch, 17 U.S. 316, 421. For an intriguing, if occasionally overexuberant, effort to revive a focus on propriety and pretext, see Gary Lawson and Patricia B. Granger, “The ‘Proper’ Scope of Federal Power: A Jurisdictional Interpretation of the Sweeping Clause,” Duke LJ 43 (1993): 267.
29. Elliot’s Debates, 3:453, 598–99.
30. Ibid., 4:286 (Pinckney), 102 (Iredell); Annals, 1:1523–24 (March 23, 1790) (report).
31. Joint Resolution of March 2, 1861, 12 Stat. 251.
32. Farrand’s Records, 2:509 (Sherman).
33. By English tradition dating back to the Mutiny Act of 1689, Parliamentary authorization of military-discipline law and military funding lapsed annually, obliging the monarch to summon Parliament every year if he wanted to keep up an army. But nothing would have prohibited a particularly pliant Parliament (which had to come before the electorate only on a septennial basis) from creating a standing authorization of a standing army. See Blackstone’s Comm., 1:*414–15; Story, Commentaries, 3:73–74, sec. 1185.
34. Federalist Nos. 28 (Hamilton), 46 (Madison).
35. Ibid., No. 28.
36. At one point in the drafting debates, Gouverneur Morris moved to name these three states in the importation clause, but he withdrew his motion after George Mason suggested it might “give offence to the people of those States.” Farrand’s Records, 2:415–16.
37. Ibid., 1:592 (C. C. Pinckney) (“S. Carola. has in one year exported the amount of £600,000 Sterling all of which was the fruit of the labor of her blacks.… He hoped a clause would be inserted in the system restraining the Legislature from … taxing Exports”).
38. Elliot’s Debates, 3:453–54 (Madison); Farrand’s Records, 2:375 (Ellsworth). For other references to the omission of this clause as a possible deal-breaker, see ibid., 364–65, 371–74, 559 (remarks of both Pinckneys, John Rutledge, and Roger Sherman).
39. Scholars have disagreed about the precise significance, or lack thereof, of Shays’s Rebellion on the events leading up to and beyond the Philadelphia Constitution. For a smattering of views, see Feer, “Shays’s Rebellion”; David Szatmary, Shays’ Rebellion: The Making of an Agrarian Insurrection (1980), 120–34; Richard D. Brown, “Shays’s Rebellion and the Ratification of the Federal Constitution in Massachusetts,” in Richard Beeman et al., eds., Beyond Confederation: Origins of the Constitution and American National Identity (1987), 113–27; Bruce Ackerman, We the People: Transformations (1998), 44–46. In this book, I have not featured this rebellion as a major causal force driving the Constitution of 1787–88. As Robert Feer notes, many of the leading Federalists of the late 1780s, concerned as they were about the union’s general imbecility in financial matters and foreign affairs, had voiced the need for a major overhaul of the Articles of Confederation long before the Massachusetts insurrection broke out. Conversely, the Philadelphia delegate who spoke out most about the Rebellion, Elbridge Gerry, ended up opposing the Constitution; several other leaders who had helped put down the rebellion, such as New York’s George Clinton and Samuel Adams, also ultimately opposed the Constitution or joined the Federalist cause rather late. Rhetorically, it was awkward for leading Federalists to invoke the insurrection as conclusively evidencing the need for a continental reform that would use the Massachusetts Constitution as a major template for the new federal Constitution. After all, leading Anti-Federalists could and did counter that the rebellion confirmed the orthodox view that geographically extended governments, such as the Appalachian-straddling regime in Massachusetts, were particularly vulnerable to breakdown of the sort evidenced by the Rebellion. Also, as Brown has demonstrated, the officialdom’s strong response to the Rebellion ultimately generated a backcountry backlash that tended to work against ratification of the Philadelphia plan in Massachusetts, and perhaps elsewhere. For an illuminating geostrategic perspective on the Rebellion, see Marks, Independence on Trial, xi–xiv, 102–5.
40. Federalist No. 28.
41. Abraham Lincoln, Special Session Address, July 4, 1861; Ex parte Merryman, 17 F. Cas. 144 (C.C. Md. 1861) (Case No. 9487). For more discussion of Lincoln’s actions, with special emphasis on the legal propriety of disobeying a lower court ruling alleged to have been made without jurisdiction, see Daniel Farber, Lincoln’s Constitution (2003), 115–43, 157–63, 188–92. A somewhat more skeptical view of Lincoln’s activities may be found in J. G. Randall, Constitutional Problems Under Lincoln (1926), 118–39. See also Chapter 4.
42. Federalist No. 44; “Vices of the Political System of the U. States,” in Madison, Papers, 9:349; Farrand’s Records, 2:26 (Morris).
43. Federalist Nos. 10, 44; Madison to Jefferson, March 19, 1787, in Madison, Papers, 9:318.
44. Madison to Jefferson, October 17, 1788, in Madison, Papers, 11:297.
45. See, e.g., Fletcher v. Peck, 10 U.S. (6 Cranch) 87, 138 (1810). A long line of Supreme Court case law has applied the Bill of Attainder clauses to prohibit what English law referred to as “bills of pains and penalties”—that is, legislative enactments singling out a person or persons by name for some form of disfavored treatment short of capital punishment, such as banishment, deprivation of the right to vote, loss of liberty or property, or extreme humiliation. See generally Cummings v. Missouri, 71 U.S. (4 Wall.) 277, 323 (1866); United States v. Lovett, 328 U.S. 303, 315–18 (1946); United States v. Brown, 381 U.S. 437, 441–42 (1965). The great weight of scholarly commentary has endorsed this approach; see, e.g., Story, Commentaries, 3:209–11, sec. 1338; Laurence H. Tribe, American Constitutional Law (2d ed. 1988), 641–56; Chafee, Three Human Rights, 149–55; Note, “The Bounds of Legislative Specification: A Suggested Approach to the Bill of Attainder Clause,” Yale LJ 72 (1965): 330 (authored by John Hart Ely). For a (somewhat cranky) dissenting view, which fails to give due weight to structural considerations alongside textual and historical evidence, see Raoul Berger, “Bills of Attainder: A Study of Amendment by the Court,” Cornell LR 63 (1978): 355, 356. For additional elaboration of my own views on the deep structure of the attainder clauses, see Akhil Reed Amar, “Attainder and Amendment 2: Romer‘s Rightness,” Michigan LR 95 (1996): 203.
46. For bans on ex post facto laws, see Del. Const. (1776), Declaration of Rights, sec. 11; Md. Const. (1776), Declaration of Rights, art. XV; N.C. Const. (1776), Declaration of Rights, art. XXIV; Mass. Const. (1780), pt. I, art. XXIV; N.H. Const. (1784), pt. I, art. XXIII. For various prohibitions of bills of attainder, see Md. Const. (1776), art. XVI; N.Y. Const. (1777), art. XLI; Mass. Const. (1780), pt. I, art. XXV; see also Vt. Const. (1786), ch. II, art. XVII.
47. For an engaging exploration of honor and dishonor in the Founding era, see Joanne B. Freeman, Affairs of Honor: National Politics in the New Republic (2001).
48. Adams to Gerry, April 23, 1784, in Henry A. Cushing, ed., Writings of Samuel Adams (1968), 4:301; Gordon S. Wood, The Radicalism of the American Revolution (1991), 241.
49. Federalist Nos. 39 (Madison), 84 (Hamilton). Note also that Jefferson’s famous 1784 plan for Western lands had provided that Western governments “shall be in republican forms, and shall admit no person to be a citizen who holds any hereditary title.” JCC, 26:119, 227 (March 1 and April 23, 1784). For more discussion, see Chapter 7.