THE NEW-YORK MANUMISSION SOCIETY WAS A private organization in one state. In the 1780s the constitution of the entire country cried out for revision.
The problem was war debt. The American Revolution was the longest war the United States would fight until Vietnam; paying for it was the responsibility of Congress, which, under America’s first constitution, the Articles of Confederation, was the totality of the national government (there was no executive and no national judiciary). Each state sent two to seven delegates to Congress; each delegation, whatever its size, cast one vote. The articles assigned Congress various powers—declaring peace and war, adjudicating boundary disputes between the states. They did not, however, give Congress reliable access to funds. It could ask the states for money, but the states, which held all real power under the system, gave only as much as they could or would. Robert Morris, the Philadelphia merchant tapped by Congress to manage the nation’s finances, said that begging the states for funds was like “preaching to the dead.”1 In 1783 the enemy finally went home, but America’s debts remained.
Some states, which had incurred their own war debts, were no better off than the country. Massachusetts, where the shooting started, tried to restore its finances in peacetime via a regressive tax on land, which provoked hard-pressed farmers to rebel—a disturbance named after Capt. Daniel Shays, one of the Revolutionary War veterans who led it.
The political elite of the country recognized that some change in the structure of the national government was needed. Congress called on the states to send delegates to a constitutional convention in Philadelphia in May 1787. Over the previous four years, Congress had moved from Philadelphia to Princeton, Annapolis, Trenton, and finally New York. But the new convention assembled in Congress’s wartime home, the Pennsylvania State House, the same hall in which it had declared independence and approved Jefferson’s declaration.
The meeting got off to a slow start. The first out-of-state delegates arrived when they were supposed to, on the second Tuesday of the month, but thanks to late starts and slow travel, a majority of states was not represented until May 25.
About half the delegates would attend every session, but the rest came and went, for reasons personal or public. William Blount of North Carolina and Abraham Few and William Pierce of Georgia left the convention to serve as delegates to Congress, which was meeting in a tavern in New York. James McHenry of Maryland left to tend a sick brother; William C. Houston of New Jersey left to suffer his own mortal bout of tuberculosis. Two of the three delegates sent by New York, John Lansing Jr. and Robert Yates, went home in the second week of July, unhappy with the nationalistic tenor of the proceedings. Their colleague, Alexander Hamilton, also became a truant, feeling that he could not cast his state’s vote by himself. New Hampshire appropriated no funds to cover the expenses of its delegates, John Langdon and Nicholas Gilman; they arrived in the last week of July only because Langdon decided to pay for both out of his own pocket. John Francis Mercer of Maryland arrived in August, gave a couple dozen disputatious speeches, and left after two weeks. Rhode Island, which was happy with the Articles of Confederation as they were, refused to send any delegates at all. Seventy men were chosen by the other twelve states to attend; fifty-five made it, at one time or other.
The delegates were mostly planters, lawyers, or state office holders. Eight had signed the Declaration of Independence; twenty-one had fought in the American Revolution. Among these patriots were the two most famous Americans in the world at that time. The first item of business the convention performed was to elect George Washington its president. Washington had earned his fame by commanding a revolutionary army for eight and a half years, then going home—a feat that recalled the semimythical Roman hero Cincinnatus and few nonmythical persons in all of history. The motion to elect him was to have been made by the other world-famous American, Benjamin Franklin, scientist, diplomat, wit, and jack-of-all-trades, but rain and indisposition kept the eighty-one-year-old Philadelphian home that day; Robert Morris, serving as another one of Pennsylvania’s delegates, made the motion instead. The vote to elevate Washington was unanimous.
A few of the delegates left little trace on the meeting or on history. William Blount and Jared Ingersoll (Pennsylvania) each spoke only once, on the last day the convention met, evidently to put themselves on the record. Nicholas Gilman (New Hampshire), Thomas Fitzsimmons (Pennsylvania), Richard Bassett (Delaware), and Alexander Martin (North Carolina) never said a word. Delaware’s Jacob Broom, a farmer, surveyor, and toolmaker, is the only delegate of whom no image or description survives. When the National Constitution Center in Philadelphia commissioned life-size statues of all the delegates who stayed to the convention’s end, for display in a “Signers’ Hall,” the sculptor showed Broom with a hand over his face, as if rubbing it, so as not to have to imagine what he looked like.
The convention met six days a week, Monday through Saturday. A quorum was seven delegations, representing a majority of states. As in Congress, each state cast one vote. Any motion, once voted on, could be reconsidered, which encouraged open-ended discussion and second thoughts. Exchanges between speakers were sometimes short, even sharp; at other times, a speaker might hold the floor for an entire day or even one day running over to the next. Most of the delegates were intelligent and well informed, a few had moments of eloquence, a very few were funny: when Elbridge Gerry (Massachusetts) worried that the vice president would be a mere tool of the president, Gouverneur Morris (Pennsylvania) observed he would be the only heir that ever loved his father. Other delegates struck their colleagues as tedious, inaudible, pedantic, or vain. Yet the general tone was serious and respectful. There were no altercations; everyone had his say. George Washington, the president, spoke only three times, briefly.
At the end of July, the convention named a committee of detail to prepare a draft based on all the provisions agreed to so far, then took a ten-day break. The delegates had decided on a bicameral Congress, joined by an executive and federal courts—a structure similar to the governments of most states, which had in turn imitated their colonial predecessors (with elected governors in place of royally appointed ones). The new Congress would have the power to levy taxes and tariffs, the necessary prelude to solving America’s debt crisis. Edmund Randolph, Virginia’s young governor, wrote a first draft; James Wilson of Pennsylvania, a transplanted Scot who was one of the most learned and voluble delegates, rewrote it. Their handiwork was presented to all the delegates when they reconvened in the first week of August. Then began a clause-by-clause review, assisted by a committee on postponed matters, to remind them of issues they had left unresolved in their wake.
At last, on September 8, the draft of the new Constitution was given to a committee of style for a final rewrite. This five-man committee was chaired by William Samuel Johnson (Connecticut), the only delegate who had maintained an uneasy neutrality during the Revolution. An Anglican with an honorary degree from Oxford, he had defended colonial rights but thought independence was a bridge too far. Once it was secured, however, he served the new nation in Congress and had just been chosen president of the former King’s College, patriotically renamed Columbia. His fellow committee members belonged to a younger generation. Rufus King (Massachusetts) had sympathized with his state’s hard-pressed farmers until their violent protests made him keen for national reform. James Madison (Virginia) had made a name in state and national politics both as a theorist and a wire-puller; his friend and ally, Alexander Hamilton (New York), was the convention’s exotic—a West Indian immigrant, rumored to be illegitimate, perhaps even a bit black, a veteran both of George Washington’s staff and of the last American charge at Yorktown.
The fifth committee member was Gouverneur Morris, tall, handsome, witty, and arrogant (he was a grandson of Lewis Morris, the New York powerhouse who had backed John Peter Zenger, and half brother of Lewis Morris, a signer of the Declaration of Independence). He had recently lost a leg in a carriage accident, which he replaced with an elegant peg. Although he had skipped the entire month of June to tend to family business, once he returned he spoke more often than any other delegate, including those who had been present for every session. This burst of eloquence induced his colleagues to give the work of polishing the amended draft to him.
Unlike Jefferson in Philadelphia eleven years earlier, Morris was editing rather than creating. By eliminating legalisms and redundancies, he massaged the twenty-three articles of the draft down to seven. One example of his compression: the committee of detail devoted an entire article to declaring that “the Government shall consist of supreme legislative, executive, and judicial powers.” Morris simply began his first three articles by announcing that “all legislative powers,” “the executive power,” and “the judicial power” should be vested in their respective branches. It was a small cleanup, but many of them made for a large cleanup.
Morris’s original contribution was his rewrite of the document’s preamble, which he transmuted from a roll call—“We the People of the States of New Hampshire, Massachusetts” and so on “do ordain, establish and declare this Constitution”—into an elegant miniature essay on the purposes of government, complete with alliteration and internal rhymes. Morris’s final purpose, given the place of honor at the end of his statement, was to “secure the Blessings of Liberty to ourselves and our Posterity.” The preamble was a contract and a will, and liberty was the most important item concerned: Morris and his fellow delegates, speaking (they hoped) for the American people, wanted it for themselves and meant to pass it on.
The committee of style’s rewrite was done on September 12. With a few small changes, it was signed on September 17 by thirty-eight delegates from eleven states. Hamilton had returned to sign as the lone New Yorker. A thirty-ninth signature, of John Dickinson, who had gone home sick, was added by fellow Delawarean George Read.
Here are their names:
President and deputy (or delegate) from Virginia: George Washington
New Hampshire: John Langdon, Nicholas Gilman
Massachusetts: Nathaniel Gorham, Rufus King
Connecticut: William Samuel Johnson, Roger Sherman
New York: Alexander Hamilton
New Jersey: William Livingston, David Brearley, William Paterson, Jonathan Dayton
Pennsylvania (since the convention was meeting around the corner, the state sent many men, who lasted until the end): Benjamin Franklin, Thomas Mifflin, Robert Morris, George Clymer, Thomas Fitzsimons, Jared Ingersoll, James Wilson, Gouverneur Morris
Delaware (which, being just down the river from Philadelphia, also sent a full, and patient, quotient): George Read, Gunning Bedford Jr., John Dickinson, Richard Bassett, Jacob Broom
Maryland: James McHenry, Daniel of St. Thomas Jenifer, Daniel Carroll (The odd first name “Daniel of St. Thomas” was a favorite in the Jenifer family, which used it to distinguish Daniel of St. Thomases from plain Daniels.)
Virginia: John Blair, James Madison Jr.
North Carolina: William Blount, Richard Dobbs Spaight, Hugh Williamson
South Carolina: John Rutledge, Charles Cotesworth Pinckney, Charles Pinckney (the Pinckneys were second cousins), Pierce Butler
Georgia: William Few, Abraham Baldwin
The convention had debated and written the Constitution in secret to allow for maximum freedom of discussion. One of George Washington’s three utterances had been to chide whichever delegate had left a copy of proposed resolutions behind him in the State House, where it might have been seen by prying eyes. “Let him who owns it, take it,” Washington scolded at the end of one session, tossing it down and leaving the room.2 No one claimed the wayward paper.
Once the Constitution was done, however, there followed a months-long, nationwide public debate in which it was praised, attacked, explained, and confuted. America’s print culture, nourished by the Zenger verdict, did not guarantee outcomes for or against the Constitution or for any important decision; it left the burden of persuasion to advocates pro and con. The legacy of voting established at Jamestown left the burden of decision to the people.
Congress had asked the states to send delegates to Philadelphia, and the convention notified Congress of its handiwork. The new Constitution, however, declared that it would go into effect once it was approved, neither by Congress nor by the state legislatures, but by conventions elected in each state for the purpose. Nine of thirteen would be sufficient to bring the new form of government into being.
America had gone outside its existing structures to write the Constitution; it would go outside them once more to make it real. Devising and writing had been done by a few dozen men in conclave; approving would be done by the people at large and their representatives, specially chosen for the task.
The anti-Constitution campaign had begun at the convention itself. Three delegates refused to sign on the last day: Edmund Randolph and George Mason of Virginia and Elbridge Gerry of Massachusetts. Randolph soon came around to back the new document, but Gerry got into a shouting match with a supporter of the Constitution at his state’s ratifying convention, and Mason was a doughty opponent at his. Gerry thought the new Congress had too much power; Mason thought the new system would end in a monarchy or a tyrannical aristocracy—which he did not know, “but one or the other, he was sure.”3 The antis had the most organized media operation, a clearinghouse for tracts run by George Clinton, governor of New York (the two New York delegates who had left the convention in July were his political allies and ideological soul mates). Some of the antis’ criticisms were subtle: most republics in history—Greek city states, Rome before it grew—had been small; could the stronger, more unified government the Constitution proposed retain its republican character over a country as large as the United States? Some criticisms were outlandish: the Constitution had created an executive, the president, and forbidden religious tests for office; could an American-born Pope get the job?
The Constitution’s supporters wielded all the influence and art they could muster in their home states and kept in touch with each other via many anxious letters. They won an early victory at Pennsylvania’s ratifying convention, which met, like the constitutional convention itself, at the State House in Philadelphia, but they won it in a bum’s rush by muscling unhappy delegates to the hall for a quorum. The losers indignantly told all of America how they had been bullied, whereupon the winners realized they would have to proceed more cordially, arguing rather than straight-arming. James Madison was a model of argument and industry; he helped Alexander Hamilton and John Jay write a series of pro-Constitution essays for the newspapers in New York City, where he was serving in the old Congress, then returned to his home state to lead the pro-Constitution forces at its ratifying convention in Richmond. George Washington seemed to do nothing; but the prestige of his signature (and of his counsel, delivered in private letters) counted as much as his colleagues’ efforts.
There was an outpouring of commentary, including one anti-Constitution pamphlet by female historian Mercy Otis Warren. There were riots over ratification in several cities—in Albany, New York, rival parades of pros and antis fought each other with clubs, stones, and bricks—but happily no deaths. All in all the process was a tribute to what Massachusetts politician Nathan Dane called “the attention of this intelligent people.”4
Delaware, Pennsylvania, and New Jersey ratified in December 1787; Georgia and Connecticut in January 1788, Massachusetts in February, Maryland in April, South Carolina in May. New Hampshire became the decisive ninth state to ratify on June 21, 1788; Virginia, not yet knowing what New Hampshire had done, ratified four days later. New York followed in July, North Carolina in 1789, Rhode Island in 1790. The new federal government assembled for the first time in New York City in the spring of 1789.
The Constitution is a web of interlocking parts. James Madison argued that its very complexity guaranteed liberty, since officeholders in every branch of government—executive, legislative, or judicial; federal or state—would resist the power grabs of rivals in the interest of defending their own turf.
One vital layer of complexity had been added at the constitutional convention itself. After long, sometimes angry bargaining between large and small states, the new Congress was divided into two bodies: a House of Representatives in which seats would be assigned to states on the basis of population, and a Senate, in which each state would fill two seats. Representatives would be elected by popular vote, senators by their state legislatures. Thus, large and small states, local voters and local politicians, would all have their say.
Another layer of complexity was suggested by the long struggle for ratification. The Constitution guaranteed certain rights—there could be no ex post facto laws (criminalizing deeds after they were done) and no bills of attainder (criminal verdicts rendered by legislatures instead of courts). Yet there was no freestanding bill of rights specifying the liberties that the men of Flushing and the Zenger jurors had claimed and to which the declaration and the constitution of the New-York Manumission Society had alluded. In fact many state constitutions had bills of rights; Virginia’s said, among other things, that “all men are equally entitled to the free exercise of religion” and that “freedom of the press is one of the great bulwarks of liberty, and can never be restrained but by despotic governments.”
Roger Sherman of Connecticut had cited the states’ bills of rights as reasons for not adding a new one to the federal Constitution; “being in force,” they “are sufficient.”5 But their very existence made the lack of one in the Constitution glaring. As the ratification debate unfolded, it became clear that most antis would be reconciled to the new system if there were an implicit promise that a bill of rights be added via the amending process laid out in Article V. The new Congress, which met in the spring of 1789, accordingly sent what are now the first ten amendments to the states that summer; they were ratified by December 1791. The “free exercise of religion” and “freedom… of the press” found themselves protected from congressional interference in the same amendment.
Three interlocking features of the Constitution were especially important guarantees of liberty, despite being relatively little noticed, certainly not in their relation to each other. All concerned status, class, or caste. There was no king, no nobility, and no mention of slaves. No American, on paper at least, was to be different at birth from any other.
The executive power was vested, according to Article II, in a president, who should hold office for a four-year term and “be elected.”
The rebels who had torn down the gilded statue of George III and melted it into bullets were obviously no friends of kings. But kingship was woven into their world and sometimes into their very thoughts.
One political philosopher known to every well-read patriot was the last-generation English politician and journalist Henry St. John, Viscount Bolingbroke (d. 1751). Bolingbroke, after a brilliant start, spent the bulk of his life as a disappointed gadfly, explaining in lively magazine articles that England’s ills were the work of corrupt insiders (that is, the politicians who had displaced him). This diagnosis, shorn of its local particulars, struck Americans as a perfect description of their unhappiness in an unresponsive empire. Bolingbroke’s solution was a patriot king, a royal outsider above the swamp of politics, who alone could drain it. It was a fantasy, and a singularly unrepublican one, but seductive even so. George Washington, John Adams, and Thomas Jefferson all had Bolingbroke on their shelves.
In the nineteenth century, the Scottish author and antiquary Sir Walter Scott would claim that he had found in the papers of Charles Edward Stuart, cousin of George III and forlorn sprig of a rival dynasty, a memorial from American supporters, written during the American Revolution, asking him to be their sovereign.6 Nothing came of it: Charles was a Catholic drunkard living in exile in Italy—not a promising candidate for a king of America. It is certain that, as the war wound down, Washington received a letter from one of his officers, Col. Lewis Nicola, urging him to aspire to a throne himself. “I believe strong arguments might be produced for admitting the title of king,” Nicola wrote.7 Washington replied, immediately and angrily, “You could not have found a person to whom your schemes are more disagreeable.”8 During the constitutional convention, Alexander Hamilton, taking his leave of absence, reported to Washington that the people he encountered on his way home, weary of misgovernment, were willing to “substitute something not very remote from that which they have lately quitted.”9
All this was gossip or speculation. But gossip and speculation, like dreams, often express unconscious fears—or desires. Royalty was like a gravitational field; resisting it required firmness.
Article I, sections 9 and 10, forbade a second form of stratification: neither the United States nor any state could grant titles of nobility. As there would be no royal family under the Constitution, so there would be no noble ones.
Nobility had been thin on the ground in colonial times. Only one American had ever been ennobled—Sir William Pepperell, a Maine merchant who was made a baronet in recognition of capturing a French fortress in Nova Scotia during one of England’s colonial wars. The only English nobleman to take up residence in America was Thomas, Lord Fairfax, who owned a tract of Virginia as large as New Jersey and settled in the Shenandoah Valley. George Washington’s half brother Lawrence married into the Fairfax family, which gave young George his first job as a surveyor.
Many a nobleman fought on America’s side in the American Revolution, however. Baron von Steuben, whose title came from his native Prussia, wrote the drill book for the American army, served as its inspector general, and would die at the estate he had been given in northern New York. The Marquis de Lafayette became a brigadier general, a surrogate son to the childless George Washington, and America’s favorite Frenchman. His grave in Paris would be covered with soil he brought from Bunker Hill. One native-born general, William Alexander, claimed to be a nobleman, as the senior male relative of a defunct line of Scottish earls. The House of Lords, to whom he had applied for confirmation, had not recognized his title, though his American comrades did, punctiliously calling him “Lord Stirling” throughout the war. “The troops commanded by Lord Sterling [sic],” wrote Washington after one battle, “behaved with great bravery.”10
Could there be a homegrown nobility? In 1783, Washington’s artillery commander, Henry Knox, founded a fraternal organization of Revolutionary War officers, the Society of the Cincinnati. Cincinnatus had gone home to his plow after saving Rome, but what would the American Cincinnati go home to do? They had chapters in each state (plus one in France)—a fact that, at a time when even churches were regional and there were no other large organizations of any kind, struck some Americans as politically dangerous. “One set of men dispersed through the union and acting in concert,” warned Elbridge Gerry at the constitutional convention, might “delude” voters into supporting their candidate for president.11 The additional fact that membership in the Cincinnati was (and still is) hereditary seemed doubly dangerous. The first president of the Cincinnati, George Washington, would indeed become the first president of the United States (though he would certainly have gotten the job whether he had belonged to many organizations or to none).
Offices in the colonial administration of America had been awarded by the king based on a combination of merit and family connection. Now that Americans were independent, they could elevate their fellows based on merit—as long as they did not erect another web of family connection.
There would be no kings or nobles under the Constitution. But almost one in five Americans—just under seven hundred thousand—were slaves. The most brutal form of stratification was far and away the most common.
Slaves are discussed several times in the Constitution: in determining the population of states for the purpose of representation (Article I, Section 1), in guaranteeing the slave trade until 1808 (Article I, Section 9, and Article V), and in providing for the return of fugitive slaves from the states they had escaped to, to the states they had fled (Article IV, Section 2). Nowhere, however, are the words “slaves” or “slave” used; instead they are called “other Persons,” “such Persons as any of the States… shall think proper to admit,” or “Person[s] held to Service or Labour.”
Gouverneur Morris, who did not suffer fools, at one point rebelled against these evasions, moving that the clause guaranteeing the “importation of such Persons” be changed to the “importation of slaves into North Carolina, South Carolina and Georgia.” He “wished it to be known that this part of the Constitution was a compliance with those states.”12 Morris’s fellow delegates shushed him.
Why? James Madison gave the most interesting answer: it would be “wrong to admit in the Constitution the idea that there could be property in men.”13
Madison’s answer was simple, avoiding both Morris’s sarcasm and the circumlocutions that provoked it.
His answer was hypocritical. The idea was forbidden, but the property remained (Madison was a slave owner).
His answer was aspirational. The property remained, but the name was to be kept out of the Constitution like a stain. Slavery, to Madison and to most of his colleagues in Philadelphia, was an embarrassment. Perhaps one day it would wither away.
The delegates to the constitutional convention, and their contemporaries, took two steps to hasten the process. Guaranteeing the slave trade until 1808 implied that it would be banned thereafter (the bill to do so would be signed in 1807, a year ahead of time, by Thomas Jefferson, the president Madison served as secretary of state). Another step to weaken slavery was taken immediately. Even as the constitutional convention sat in Philadelphia, Congress, meeting in its tavern in New York, passed a law organizing the Northwest Territory, the barely settled frontier bounded by Pennsylvania, the Ohio and Mississippi Rivers, and the Great Lakes. The Northwest Ordinance declared “there shall be neither slavery nor involuntary servitude in the said territory.” Five future states—Ohio, Indiana, Illinois, Michigan, and Wisconsin—would be free of it.
Slavery was a hardy plant. It would take more—much more—than cutting its roots and preventing its growth into the old Northwest to kill it. But these were starts.
Taken together, these three provisions—no king, no nobility, no mention of slaves—established in fundamental law one of the principles of the declaration: there were no orders of mankind; all men are created equal. It was necessary to put it in black and white because the human tropism toward royalty, rank, and bondage is so strong. The Bible contains denunciations of royalty—Thomas Paine, the English immigrant pamphleteer, cited Samuel’s (and God’s) unwillingness to give Israel a king in his best seller, Common Sense—but it also contains many passages that accept it. A spasm of equality passed through the western world with the Enlightenment, but other intellectual currents, romantic and radical, would follow, generating their own inegalitarian consequences. Whatever scripture or the spirit of the age says, humanity inclines to hierarchy. We are raised by parents, and we raise children; some forms of hierarchy are as natural as birth and death.
George Washington was so mindful of the pull of kingship that he planned to remind America, in his first inaugural address, that there could be no Washington dynasty because he was childless: “I have… no family to build in greatness upon my country’s ruins.” (Madison ghosted a shorter, less confessional address, which Washington ended up giving instead.) Many of Washington’s successors were similarly placed, having no children or no sons (office-holding then being restricted to men). The third president, Thomas Jefferson, had only daughters; the fourth, James Madison, only a stepson; the fifth, James Monroe, only daughters; the seventh, Andrew Jackson, only adopted children. But the second president, John Adams, had three sons, the eldest of whom, John Quincy Adams, became the sixth president. Who knows what a political landscape crowded with founding presidential sons might have looked like?
We know that political dynasties proliferated at the lower levels of American politics. The Pinckney cousins who signed the Constitution were one of many examples (Charles Cotesworth would run for vice president once and president twice, all three times unsuccessfully; Charles was more successful, serving as congressman, US senator, and governor). In January 2019, Rodney Frelinghuysen retired after twelve terms as a congressman from New Jersey. He was the fifth member of his family to serve in Congress, the first being Frederick Frelinghuysen, who was sent to the Continental Congress in 1778.
America’s appetite for foreign nobility is insatiable. We mock titles and pomp, boast of our simple superiority to them—and lap them up. During the Madison administration, Betsy Patterson, daughter of a wealthy Baltimore merchant, married Jerome Bonaparte, Napoleon’s youngest brother. Le tout Washington gaped at the couple, especially at the beautiful, and beautifully (under)dressed, Betsy. “Mobs of boys,” wrote one spectator, “have crowded around her splendid equipage to see what I hope will not often be seen in this country, an almost naked woman.”14 Napoleon, furious that a family member had married a commoner, annulled the match. But Betsy wore her surname as a badge of honor for the rest of her life.
Slavery was the most tenacious form of hierarchy, rooted in habit and economics. For decades, only a few words, and a few silences, stood against it.
Men want liberty. But they want other things as much, sometimes more. They will surrender liberty for the sake of security and take other people’s liberty in order to bolster their own self-esteem.
Securing the blessings of liberty takes vigilance and effort.