« PreviousContinue »
Every man, the least conversant with Roman story, knows how often that republic was obliged to take refuge in the absolute power of a single man, under the formidable title of dictator, as well against the intrigues of ambitious individuals who aspired to the tyranny, and the seditions of whole classes of the community whose conduct threatened the existence of all government, as against the invasions of external enemies who menaced the conquest and destruction of Rome." 1
Such weighty considerations prevailed in the convention, and an executive department with a single head endowed with regal powers was created. To meet the objection of those who were afraid of intrusting too much political control to the mass of the people, it was decided that the President should be chosen indirectly by electors appointed as the legislatures of the several states might determine.
2. No less grave defects were inherent in the legislature created by the Articles of Confederation. Three, in particular, engaged the attention of the convention: the equality of the several states, large and small, in voting power; the instability of a single chamber; and the absence of direct representation of the people in the Congress-the delegates being appointed by their respective state legislatures and thus dependent upon the states as corporate entities rather than upon the people thereof. The convention accordingly decided upon a bicameral legislature: a Senate affording equal representation to all states and a House composed of representatives apportioned among the states on a basis of population. Moreover, the significant fact must not be overlooked, that it was provided that the members of the new Congress were to be paid from the national treasury and thus relieved from all dependence upon state revenues. "If the states were to pay the members of the national legislature," said Randolph in the convention, "a dependence would be created that would vitiate the whole system. . . . The national treasury, therefore, is the proper fund for supporting them." "
3. The crowning defect of the Articles, according to Hamilton, was the want of a central judiciary. The old Congress had no authority to organize courts of general jurisdiction, although it could act as a tribunal of "last resort on appeal in all 2 Elliot's Debates, Vol. V, p. 226.
1 The Federalist, No. LXX.
disputes and differences arising between two or more states concerning boundary, jurisdiction, or any other cause whatever." 1 It therefore had no way of enforcing federal laws by judicial process, and as Hamilton said: "Laws are a dead letter without courts to expound and define their true meaning and operation. The treaties of the United States, to have any force at all, must be considered as a part of the law of the land. Their true import as far as respects individuals, must like all other laws be ascertained by judicial determinations. To produce uniformity in these determinations they ought to be submitted in the last resort to one supreme tribunal." Moreover, Hamilton, fearing the aggression of the legislature, believed that the court should have the power of declaring laws unconstitutional. Accordingly a Supreme Court, and inferior courts to be erected by Congress, were given jurisdiction over all cases arising under the Constitution, federal laws, and treaties-a jurisdiction by later congressional enactment and judical decision interpreted to include the power of declaring state and federal laws unconstitutional.
4. The financial and commercial objections to the Articles of Confederation were met by two important provisions. The necessity of depending upon the state legislatures for federal funds was entirely eliminated by the clause authorizing Congress to raise revenues by taxes, duties, and excises bearing immediately upon the people as individuals. The continuation of the commercial warfare among the states was prevented by the clause empowering Congress to regulate commerce among the several states and with foreign nations, as well as with the Indians. The national government was also authorized to establish uniform bankruptcy laws and thus exercise at will an effective check upon the shrewdly devised state legislation through which debtors sought to escape from some of their obligations."
No less important for financial and commercial purposes were the restrictions laid upon the powers of the states. They were forbidden to emit bills of credit, make anything but gold and silver coin tender in payment of debts, pass ex post facto laws, lay duties on imports or exports (except with the consent of Congress for specific purposes), lay tonnage duties, or pass any law impairing the obligation of contract.
1 See Readings, p. 30.
2 Except in maritime and admiralty matters. 'See Readings, pp. 236 ff.
5. Special effectiveness was given to the new powers conferred upon the national government by authorizing it to deal with individuals instead of thirteen distinct and separate states. Hence it was no longer possible for states to violate and disregard treaties made by the federal government, or to look upon federal laws as mere recommendations to be obeyed if desirable or neglected altogether.
6. Of particular significance was the clause providing for future amendments. The Articles of Confederation had stipulated that no alteration should be made without the approval of Congress and ratification by the legislature of every state. The new Constitution bound every state to an amendment, in case it was approved by two-thirds of both houses of Congress and ratified by three-fourths of the states. Even this system, as events have proved, has required such extraordinary majorities as to make amendments by regular process well-nigh impossible. Radical as this departure may have seemed to the ardent champion of states' rights, it was not radical enough for Patrick Henry, for he declared in the Virginia convention called to ratify the Constitution that "Four of the smallest states, that do not collectively contain one-tenth part of the population of the United States, may obstruct the most salutary and necessary amendments. ... A bare majority in these four small states may hinder the adoption of amendments; so that we may fairly say and justly conclude that one-twentieth part of the American people may prevent the removal of the most grievous inconveniences and oppression by refusing to accede to amendments. . . . Is this an easy mode of securing the public liberty? It is, sir, a most fearful situation when the most contemptible minority can prevent the alteration of the most oppressive government; for it may, in many respects, prove to be such." 1
The Ratification of the Constitution
It is evident from an examination of these departures from the Articles of Confederation that a revolution in our political system was contemplated by the framers of the Constitution. They were doubtless unaware of all the national implications
1 Elliot's Debates, Vol. III, pp. 48–50.
contained in the instrument which they drafted, but they knew very well that the state legislatures, which had been so negligent in paying their quotas under the Articles and which had been so jealous of their rights, would probably stick at ratifying such a national instrument of government.. Accordingly they cast aside that clause in the Articles requiring amendments to be ratified by the legislatures of all the states; and advised that the new Constitution should be ratified by conventions in the several states composed of delegates chosen by the voters. They furthermore declared — and this is a fundamental matter that when the conventions of nine states had ratified the Constitution the new government should go into effect so far as those states were concerned. The chief reason for resorting to ratifications by conventions is laid down by Hamilton in the twenty-second number of The Federalist: "It has not a little contributed to the infirmities of the existing federal system that it never had a ratification by the people. Resting on no better foundation than the consent of the several legislatures, it has been exposed to frequent and intricate questions concerning the validity of its powers; and has in some instances given birth to the enormous doctrine of a right of legislative repeal. Owing its ratification to the law of a state, it has been contended that the same authority might repeal the law by which it was ratified. However gross a heresy it may be to maintain that a party to a compact has a right to revoke that compact, the doctrine itself has respectable advocates. The possibility of a question of this nature proves the necessity of laying the foundations of our national government deeper than in the mere sanction of delegated authority. 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."
Of course, the convention did not resort to the revolutionary policy of transmitting the Constitution directly to the conventions of the several states. It merely laid the finished instrument before the confederate Congress with the suggestion that it should be submitted to "a convention of delegates chosen in each state by the people thereof, under the recommendation of its legislature, for their assent and ratification; and each convention assenting thereto and ratifying the same should give
notice thereof to the United States in Congress assembled."1 The convention went on to suggest that when nine states had ratified the Constitution, the confederate Congress should extinguish itself by making provision for the elections necessary to put the new government into effect." "What they [the convention] actually did, stripped of all fiction and verbiage," says Professor Burgess, "was to assume constituent powers, ordain a Constitution of government and of liberty, and demand the plébiscite thereon, over the heads of all existing legally organized powers. Had Julius or Napoleon committed these acts, they would have been pronounced coups d'état. Looked at from the side of the people exercising the plébiscite, we term the movement revolution. The convention clothed its acts and assumptions in more moderate language than I have used, and professed to follow a more legal course than I have indicated. The exact form of procedure was as follows. They placed in the body of the proposed Constitution itself a provision declaring that ratifications by conventions of the people in nine states (commonwealths) should be sufficient for the establishment of the Constitution between the states (commonwealths) so ratifying the same. They then sent the instrument entire to the Confederate Congress, with the direction, couched in terms of advice, that the Congress should pass it along, untouched, to the legislatures of the commonwealths, and that these should pass it along, also untouched, to conventions of the people in each commonwealth, and that when nine conventions should have approved, Congress should take steps to put the new government into operation and abdicate. Of course the mass of the people were not at all able to analyze the real character of this procedure. It is probable that many of the members of the convention itself did not fully comprehend just what they were doing. Not many of them had had sufficient education as publicists to be able to generalize the scientific import of their acts." 3
After the new Constitution was published and transmitted to the states, there began a determined fight over its ratification. A veritable flood of pamphlet literature descended upon the coun
1 For document illustrating process of ratification, Readings, p. 54. 2 Readings, p. 53.
Burgess, Political Science and Constitutional Law, Vol. I, p. 105.